Court No. - 72
Case :- APPLICATION U/S 482 No. - 21593 of 2019 Applicant :- Shahzad Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ravindra Sharma Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Sri Bharat Singh, Advocate has filed appearance on behalf of the opposite party no.2. The same is taken on record. He does not propose to file any counter affidavit. Therefore, the matter is being proceeded.
2. Heard Sri Ravindra Sharma, learned counsel for the applicant, Sri Bharat Singh, learned counsel for opposite party no.2 and learned AGA for the State.
3. The present 482 Cr.P.C. application has been filed to quash the impugned order dated 06.02.2019 in S.T. No.259/2017, State Vs. Saood & Others, (Crime No.144/2017) under Sections-307, 302 I.P.C., Police Station-Kotwali, District-Budaun, pending in the court of Second Additional District & Sessions Judge/Special Judge, SC/ST (P.A.) Act, Budaun.
4. Learned counsel for the applicant submits that the present is a case of celebratory firing of which there is a video recording available on the case diary. However, despite such strong evidence being available, merely on the basis of allegation made in the FIR and the statements recorded under Section 161 Cr.P.C. which have been repeated during the trial by two prosecution witnesses, the learned court below has summoned the present applicant under Section 319 Cr.P.C. without recording any strong satisfaction as is necessary to be recorded before such order may have been passed. Reliance has been placed on the decision of the Supreme Court in the case of Hardeep Singh & Ors. Vs. State of Punjab & Others reported in 2014 (3) SCC 92.
5. Also, it has been submitted that the impugned order is a non-speaking, inasmuch as, it has been passed without any reasoning.
6. While Sri Bharat Singh, learned counsel for opposite party no.2 opposed the present application, he states that from bare perusal of the statement recorded during trial, it is clear that the applicant was involved in the commission of offence, and therefore, his summoning is necessary.
7. Having heard learned counsel for the parties and having perused the record, there is no room for any discussion that the power under Section 319 Cr.P.C. is to be exercised sparingly where summoning of third person in a pending trial is unavoidable or necessary. To pass a summoning order, a strong satisfaction is necessary to be recorded by the trial court. Mere existence of certain evidence may never satisfy the summoning without recording strong satisfaction, inasmuch as based on such evidence, the learned trial court is required to form its satisfaction which must be expressed in clear terms in the order itself. The same cannot be exist in the mind of the Judge but not be reflected in the order.
8. Also, while doing so, the learned court below would remain obliged to consider such evidence as may be relied for the summoning of the third person in the background of the other material that is already available on the case diary. Unless that exercise is done, neither the satisfaction that may be recorded can be categorized as strong enough to summon a third person nor it may otherwise lead to any fruitful proceeding, as even if, the persons summoned are likely to be acquitted upon the witness being confronted with the case diary material, their summoning would be a useless exercise.
9. In view of the fact that, at present, neither there is any satisfaction recorded in the impugned order nor there appears any serious application of mind to the issue essential by the learned court below. The present application is allowed. The impugned order dated 06.02.2019 is set aside with a direction to the learned court below to pass a fresh order, keeping in mind the observations made in this order, as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order.
Order Date :- 30.5.2019 S.Chaurasia