Court No. - 24
Case :- APPLICATION U/S 482 No. - 24849 of 2018 Applicant :- Smt. Twinkal Tyagi Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manoj Kumar Rai Counsel for Opposite Party :- G.A.
Hon'ble Yashwant Varma,J.
1. Heard learned counsel for the applicants and the learned AGA.
2. This application calls in question an order dated 8 February 2018 in terms of which the application under Section 319 Cr.P.C. has come to be rejected at this stage. The court below has taken the view that presently examination-in-chief of the PW-1 has been completed and that consequently it was always open to the applicant to move an appropriate application after conclusion of cross-examination as well as recordal of statements of other witnesses.
3. The submission of the learned counsel was that refusal to exercise powers under Section 319 Cr.P.C. awaiting cross examination of PW-1 is clearly incorrect and is liable to be set aside in light of the decision of the Constitution Bench in Hardeep Singh Vs. State of Punjab1. Learned counsel has in this connection and in support of his contention placed reliance upon paragraph 117 of the Supreme Court which reads thus: -
“117. We accordingly sum up our conclusions as follows:
1 (2014) 3 SCC 92 Question (ii)—Whether the word “evidence” used in Section 319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
Answer
117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
4. Now principally it cannot be disputed that the Court does have the power to summon a person under Section 319 Cr.P.C to face the trial without awaiting completion of cross examination as held in Hardeep Singh. It is equally true and follows from the decision in Hardeep Singh that the evidence which the Court must take into consideration must necessarily be more than mere prima facie satisfaction and a little short of guilt beyond reasonable doubt.
While bearing the aforesaid principles in mind the Court finds no ground warranting interference with the order impugned since the rights of the applicant have not been foreclosed. This Court further notes that no prejudice appears to have been caused to the applicant in light of the fact that the court concerned itself has observed that after the conclusion of cross-examination and the recordal of statement of other witnesses it would be open to the applicant to move an appropriate application for summoning of additional persons named in the application. There is thus no final rejection of the prayer made by the applicant but a mere deferral of consideration of the prayer.
On an overall conspectus of the aforesaid facts, this Court finds no error in the view taken by the court below.
5. The petition lacks merit and is accordingly dismissed.
Order Date: - 25.07.2018 (Yashwant Varma, J.) nethra