Court No. - 18 Case :- U/S 482/378/407 No. - 3162 of 2010 Petitioner :- Om Prakash And 2 Others Respondent :- State Of U.P. And Another Petitioner Counsel :- Sunil Kumar Singh Respondent Counsel :- Govt. Advocate Hon'ble S.N.H. Zaidi,J.
Heard learned counsel for the petitioners, learned A.G.A. for opposite party
no.1 and perused the material on record.
Notice to opposite party no.2 is dispensed with.
By means of this petition filed under section 482 Cr.P.C., the petitioners have
invoked the inherent powers to this Court with a prayer that the order dated
27.05.2010 passed by the Additional Sessions Judge, Court no.8, Raebareli in
S.T.No.140 of 2008 summoning the petitioners for trial under section 304
read with section 34 I.P.C. on an application moved under section 319
Cr.P.C., be quashed.
Learned counsel for the petitioners submitted that an application moved
earlier by the Public Prosecutor under section 319 Cr.P.C. for summoning the
petitioners was rejected by the trial court, vide order dated 26.06.2009.
However, after examining two witnesses the Public Prosecutor again moved
an application under section 319 Cr.P.C. and the learned trial court without
recording any finding whether or not the evidence on record, if
uncontroverted, would be sufficient to record a conviction against the
petitioners, summoned the petitioners for trial and in the absence of such
finding the impugned order cannot be sustained. Learned counsel, in this
regard, has relied upon the ratio of the judgments of Hon’ble the Supreme
Court rendered in the cases of Sarabjit Singh & others vs. State of Punjab &
another 2009 (66) ACC, page 32, Brindaban Das and others vs. State of West
Bengal, 2009 (66) ACC 273, Michael Machado and another vs. Central
Bureau of Investigation and another, (2000) 3 SCC 262 and Krishnappa vs.
State of Karnataka, 2004 (7) SCC 792.
The view expressed by the Apex Court in the aforesaid cases is that a
summoning order under section 319 Cr.P.C. should be passed only when the
evidence, if un-controverted, 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 Cr.P.C. 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 un-controverted, 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 Cr.P.C. 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 Cr.P.C. 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 un-rebutted.
A non observance of this legal requirement would render the summoning
order illegal.
Since in the instant case the Court below while passing the impugned order
has not recorded any finding as to whether the evidence adduced before it, if
un-controverted, would be sufficient to record a conviction of the petitioners,
therefore, it is not sustainable in the absence of such finding.
In view of the aforesaid, this petition is allowed and the impugned order dated
27.05.2010 is quashed and the matter is remanded to the learned trial court to
reconsider the application under section 319 Cr.P.C. in the light of the above
observation and pass appropriate order in accordance with law.
Order Date :- 11.8.2010
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