Hichha Lal Gupta vs State of U.P. and Another

Shri Kant Tripathi, J.—Heard Mr. Sri Prakash Dwivedi, learned Counsel for the applicant and learned AGA for the Respondent No. 1 and perused the record. None is present for the Respondent No. 2.

This is a petition u/s 482 Code of Criminal Procedure for quashing the summoning order dated 15.2.2008 passed under 319 Code of Criminal Procedure by the Chief Judicial Magistrate, Mirzapur in criminal case No. 2243 of 2003, State v. Darbari and Ors..

The Chief Judicial Magistrate appears to have summoned the applicant Hichha Lai Gupta in regard to the offence tinder Sections 325, 323, 504, 506 I.P.C. and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act on the basis of the statement of the complainant, Sukaru, Respondent No. 2, who has given statement regarding involvement of the applicant.

It appears that the Chief Judicial Magistrate, Mirzapur has passed the summoning order while holding the trial against the co-accused Darbari and Ashok. who have not been charge-sheeted u/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Chief Judicial Magistrate, Mirzapur recorded the statement of the complainant, Sukaru only and pass the summoning order without taking any other evidence. He has not recorded any specific finding that the evidence of the complainant, if uncontroverted, is reasonably sufficient to record the conviction against the applicant. The power u/s 319 Code of Criminal Procedure should be exercised very sparingly only if compelling or cogent reasons exist against the person sought to be summoned.

This Court, after considering a large number of decisions of the Apex Court, has propounded the following principles in the case of Rajol v. State of U.P. 2010 (5) ADJ 628.

In the cases of Sarabjeet (Supra), Brindawan Das, Michael Machado (supra) and Krishnappa (supra), it has been clearly held that 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 u/s 319 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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.

The learned Chief Judicial Magistrate has not recorded any finding on the question whether the evidence given by the Respondent No. 2, if uncontroverted, is sufficient to record a valid conviction against the applicant.

For the reasons stated above the summoning order cannot be sustained. The application is allowed. The order dated 15.2.2008 is quashed. The application u/s 319 Code of Criminal Procedure may be considered afresh by the competent Court in accordance with law. Interim order, if any, is vacated.