Chhuttan @ Yadvendra vs State of U.P. and another

V.K. Mathur, J.—The instant criminal revision has been preferred by the revisionist against the impugned order dated 2.2.2010 passed by the Additional Sessions Judge, Court No. 8, Budaun in Sessions Trial No. 657 of 2009 wherein the revisionist has been summoned as an accused u/s 319, Cr.P.C.

The brief facts giving rise to the instant criminal revision are that initially a F.I.R. u/s 147, 148, 149, 307, IPC was lodged by informant Virendra stating that his brother was assaulted by Chhuttan @ Yadvendra (revisionist) armed with rifle, Nand Kishore armed with country made gun, Ram Bhajan armed with Tamancha and Netram wielding a danda. It has also been alleged that the accused persons opened fire with Tamancha and rifle which hit in the forehead of informant''s brother. Subsequently, the informant''s brother died, therefore, the case was converted into a case u/s 302, IPC. It appears that the revisionist was not charge sheeted while others were charge sheeted. When the trial commenced, examination in chief of PW-1 informant Virendra was recorded on 21.1.2010 and an application u/s 319, Cr.P.C. was moved by the prosecution during the examination-in-chief to summon the revisionist as an accused. The learned Additional Sessions Judge vide impugned order allowed the application and summoned the revisionist as an accused.

Aggrieved from the order, the instant revision has been preferred on the ground that the revisionist has wrongly been summoned u/s 319, Cr.P.C. to face trial u/s 302, IPC by the trial court. Though the revisionist was named as an accused in the FIR, he was not charge sheeted. Even the learned Magistrate while taking cognizance did not find sufficient evidence to summon him as an accused. It has also been contended that during the trial on the basis of examination-in-chief alone, that too of only one witness PW-1, the trial court has ordered to summon the revisionist u/s 319, Cr.P.C. which is bad in law. The statement of the witness cannot be considered to be completed unless it undergoes cross examination, therefore, the impugned order is not legal and sustainable and has been passed arbitrarily and without being satisfied of the existence of sufficient evidence whereby the revisionist can be convicted.

Learned counsel for the revisionist has relied upon the judgment of Mohd. Shafi Vs. Mohd. Rafiq, 2007 (58) ACC 254 (SC) .

The impugned order has been defended by the respondents.

From the perusal of the impugned order it is clear that the learned court while passing the impugned order has considered the provision of Section 319, Cr.P.C. when it has recorded that where it appears that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. While considering the judgment of Y. Saraba. Reddy Vs. Puthur Rami Reddy and another, 2007 (2) AAR 859, the learned court below has also noted that the power has to be used sparingly and the order to summon should be reasoned. However, in the impugned order the learned trial court has taken into account the statements u/s 161, Cr.P.C. and the allegations in the FIR also to arrive at conclusion prima faciely that revisionist can be summoned as an accused, apart from the examination-in-chief of PW-1, informant and has further concluded that revisionist is the main accused who has inflicted the fire arm injury on the forehead of the deceased. Learned trial court has further observed that non-filing of the charge sheet against the revisionist shows that there is some error in the investigation. Therefore, it has allowed the application 20A and has summoned the revisionist and Ram Avtar as accused to face trial u/s 302, IPC.

The law is settled that for exercising jurisdiction u/s 319, Cr.P.C. it is incumbent upon the court to satisfy itself whether or not the evidence adduced before it, if uncontroverted, would be sufficient to record conviction of the person sought to be summoned. Sarabjit Singh and others Vs. State of Punjab and another, 2009 (66) ACC 32, Lal Suraj @ Suraj Singh and another Vs. State of Jharkhand, 2009 (67) ACC 733, Brindavan Das and others Vs. State of West Bengal, 2009 (66) ACC 273 and Michael Machado and another Vs. Central Bureau of Investigation and another, 2000 (40) ACC 795 (SC) may be referred as cases which provide guidelines.

Though learned counsel for the revisionist has relied upon para 9 of the judgment of Mohd. Shafi Vs. Mohd. Rafiq, 2007 (58) ACC 254 (SC) to support his contention that the court has to arrive at a satisfaction upon completion of the cross examination of the witnesses, I am of the view that the law on this point is also settled that in every case it is not necessary that order u/s 319, Cr.P.C. cannot be passed or will become illegal merely on the ground that the witness has not been subjected to cross examination. In the case of Rajol Vs. State of U.P., 2010 (71) ACC 394 and Hardeep Singh Vs. State of Punjab and Others, the controversy has been referred to larger Bench and it has been held that the power u/s 319, Cr.P.C. is an extraordinary power which may be used very sparingly only if compelling or cogent reasons exist against the persons sought to be summoned. The term ''evidence'' used in Section 319, Cr.P.C. does not necessarily open the evidence which is tested by cross examination. It has also been held that the view expressed in the case of Mohd. Shafi Vs. Mohd. Rafiq, 2007 (58) ACC 254 (SC) in this regard has not been subsequently followed by the Apex Court in the case of Sarabjit Singh and others Vs. State of Punjab and another.

Though the argument of learned counsel for the revisionist that the revisionist could not have been summoned on the basis of statement of a witness, who has not been subjected to cross examination, is not legally tenable. However, the fact remains that the learned trial court has committed an error in view of the law laid down in the cases referred to in this judgment while summoning the accused. While passing an order u/s 319, Cr.P.C. the court will ensure that there is possibility of conviction on the basis of evidence available against the person to be summoned as an accused. It must also be borne in mind that power u/s 319, Cr.P.C. is to be exercised by the court on the basis of fresh evidence brought before the court and the trial court must form an opinion on the basis of evidence brought before it that case has been made out and that such person can be tried along with other accused persons. The trial court cannot order to summon a person as an accused merely on the basis of a prima facie case being made out against him. Even a person against whom an FIR has been registered and charge sheet has not been filed can be summoned u/s 319, Cr.P.C. and there is no impediment in his being summoned as an accused.

In this view of the matter, the impugned order has not been passed in accordance with law and the guidelines propounded have not been adhered by learned court below as such the impugned order is liable to be set aside and the revision deserves to be allowed.

The revision is allowed. The impugned order dated 2.2.2010 passed by the learned Additional Sessions Judge, Court No. 8, Budaun is set aside. The learned court below is directed to decide the application 20A of the prosecution afresh in the light of the observations made in various case laws referred in the body of this judgment by passing a reasoned order preferably within a period of one month from the production of a certified copy of this order before it. Interim order, if any, is vacated.

No orders is passed as to costs.