Court No. - 53 Case :- APPLICATION U/S 482 No. - 10348 of 2005 Petitioner :- Baboo And Others Respondent :- State Of U.P. Petitioner Counsel :- Onkar Singh,Onkar Nath Respondent Counsel :- Government Advocate,S.S. Malik,S.S. Mishra Hon'ble Shri Kant Tripathi,J.
Heard the learned for the applicants and the learned AGA for the respondent
no.1 and also the learned counsel for the respondent no.2 and perused the
record.
This is a petition under section 482 CrPC against the order dated 22.7.2005
passed by the Additional Sessions Judge, Court No.1, Fatehpur in ST No. 11
of 2003 (State Vs. Balram) whereby the learned Additional Sessions Judge
has summoned the applicants as additional accused to face trial in regard to
the charges under section 363 and 366 IPC.
The learned counsel for the parties informed that co-accused i.e. Balram has
already been convicted and sentenced.
It appears that the impugned order was passed on the basis of the statement of
PW-1 Sohan Singh and PW-2 Sudha (victim). These two witnesses had been
thoroughly cross examined prior to passing of the impugned order. The
learned Additional Sessions Judge has considered the statements of both the
witnesses in detail and arrived at the conclusion that there was sufficient
material to summon the applicants. The learned Additional Sessions Judge has
also referred to certain decisions of this court as well as the apex court.
The learned counsel for the applicants submitted that according to the medical
report the girl was major but this aspect was not given any consideration by
the trial court. It was further submitted that the learned Additional Sessions
Judge was himself of the view that the girl (victim) had not supported the
prosecution story in her statement under section 164 Cr.P.C. She gave a
contradictory statement during the trial by supporting the prosecution story,
therefore, a heavy duty was cost upon the learned trial court to ensure as to
whether the statement of the victim during the trial was sufficient to record a
valid conviction against the applicants, despite that she had given a contrary
version under section 164 Cr.P.C. which was in favour of the applicants.
In the case of Rajol Vs. State of U.P. 2010 (5) A.D.J. 628, this court, after
referring to various decisions of the Apex Court, has held:
” Summoning order should be passed only when the evidence, if
uncontroverted, is of such a nature as to reasonably lead to conviction of the
person sought to be summoned. The standard of evidence required for
summoning an additional accused should be higher than the evidence
required for framing charges because the jurisdiction under section 319
CrPC is to be exercised sparingly in an extra ordinary situation. Whether or
not any evidence is of such a quality as to record conviction if it remains
uncontroverted, is a variable question depending upon the facts and
circumstances of each case and no hard and fast rule can be laid down in this
regard. However, the court considering the evidence for the purpose of
section 319 CrPC is not legally required to evaluate the evidence as it is
ordinarily done while rendering the final judgment but the court has to see
whether or not, the evidence on record appeals to the reason for the purposes
of section 319 CrPC and the story narrated by the witnesses against the
person sought to be summoned is not improbable and absurd and a
conviction is possible on such statements, if uncontroverted. A non
observance of this legal requirement would render the summoning order
illegal.”
In view of the aforesaid reasons the summoning order cannot be sustained.
Petition is, therefore, allowed. The impugned order dated 22.7.2005 is
quashed and the learned lower court is directed to reconsider the matter and
pass an appropriate order afresh in accordance with law.
Order Date :- 3.8.2010
MTA