Heard learned counsel for the revisionists and learend A.G.A.
This criminal revisio is directed against the order dated 1.12.2010 passed by Additional Sessions Judge, Court No.1, Fatehpur in S.T. No.442 of 2010, State Vs. Tahir Ali and others by which he has allowed the application 24ba filed by the prosecution under Section 319 Cr.P.C.
The brief facts of the case are that on the bais of the FIR lodged by opposite party no.2 Case Crime No.176 of 2010, under Sections 363, 366, 504, 506 I.P.C., was registered against the revisionist no.1 and four other persons namely Tahir Ali, Kalluy, Julekha, and Sadiq Ali. The revisionist no.2 was not named in the FIR. The Investigating Officer after completing the investigation filed charge sheet only against Tahir Ali, Kallu, Julekha and the revisionists and the other co-accused Sadiq Ali were exonerated. After the case was committed for trial to the Sessions Court and registered as S.T. No.442 of 2010 and the statement of P.W.1 Jufran Bano was recorded during the trial, the prosecution moved an application 24ba with a prayer that the revisionists be arrayed as additional accused and summoned for facing trial along with other co-accused for offences punishable under Section 363, 366 I.P.C.
In the said application it was stated that from the perusal of the statement of the P.W.1 Jufran Bano the complicity of the revisionist as participant in the offence was established. The court below by the impugned order has allowed the said application and summoned the revisionist to stand trial along with other co-accused under Section 319 Cr.P.C.
In Mohd. Shafi Vs. Mohd. Rafiq and another, 2007 (58) ACC 254, the Apex Court had held that before a Court exercising its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at the satisfaction that there exists a possibility that the accused so summoned, is in all likelihood, liable to be convicted.
In Sarabjit Singh & another Vs. State of Punjab & another, (2010) 2 Supreme Court Cases (Cri) 141, the Apex Court held that for exercising extra ordinary jurisdiction under section 319 Cr.P.C., the Courts are required to apply stringent tests; one of the test being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned and mere existence of a prima facie case may not serve the purpose.
Since learned trial court has not recorded his satisfaction as above, the impugned order cannot be sustained and is liable to be set aside.
The application in revision is allowed and the impugned order dated 1.12.2010 is set aside. The learned Additional Sessions Judge, Court No.1, Fatehpur is directed to decide the application under Section 319 Cr.P.C. afresh in accordance with the directions of the Apex Court in the cases of Mohd. Shafi and Sarabjit (supra).
Order Date :- 20.12.2010 Bhaskar