Surya Mani and Another vs The State of U.P. and Another

Mahendra Dayal, J.—I have heard learned counsel for the petitioners and the learned counsel appearing on behalf of opposite party No. 2 as well as learned A.G.A. for the State and have also perused the impugned order.

The petitioners have filed this petition u/s 482 Cr.P.C. challenging the order dated 27.11.2012, passed by the Additional Sessions/Special Judge, E.C. Act Gonda, in S.T. No. 303/2012, arising out of Crime No. 182/2010, under Sections 147, 148, 149, 323, 307, 302 IPC, relating to P.S. Colonelganj, District Gonda, whereby the learned trial court has allowed the application u/s 319 Cr.P.C. and has summoned the petitioners as additional accused.

The brief facts are that the opposite party No. 2 lodged an FIR against six persons including the petitioners alleging therein that on 7.4.2010 about 7.00 P.M. the accused persons including the present petitioners on account of previous enmity assaulted the opposite party No. 2 and one of the accused persons, namely, Shyamu opened fire at Avadh Raj, as a result of which he died. On the basis of written application of opposite party No. 2 the police registered the case against the six persons including the petitioners and after completion of investigation submitted charge sheet but exonerated the petitioners. When the trial commenced after framing of the charges and the statement of three prosecution witnesses were recorded, an application u/s 319 Cr.P.C. was moved on behalf of the prosecution and the learned trial court by means of the impugned order allowed the aforesaid application and summoned the petitioners to face trial.

The learned counsel for the petitioners has submitted that after the lodging of FIR the Investigating Officer conducted a detailed investigation and recorded the statement of several witnesses but when no material was found against the petitioners, he did not file charge sheet against them. The learned trial court while considering the application u/s 319 Cr.P.C. in a very mechanical manner, passed the impugned order directing the petitioners to appear and face trial, although there was no evidence on record to have exercised the power u/s 319 Cr.P.C. It has also been submitted on behalf of the petitioners that it is a settled law that while invoking the power u/s 319 Cr.P.C. an additional accused can be summoned only if there is material evidence against him and there are fair chance to convict him. The impugned order does not reflect that the learned trial court has considered the evidence on record before passing the impugned order.

The learned counsel for the opposite party No. 2 as well as the learned A.G.A. have submitted that the Investigating Officer in order to extend the benefit to the petitioners did not file charge sheet against them, although there was sufficient evidence to implicate them and to file the charge-sheet. After the commencement of the trial when the evidence of three prosecution witnesses was recorded, an application was moved by the prosecution to summon the petitioners and the learned court below after going through the material on record came to conclusion that there was sufficient evidence against the petitioners to summon them. The impugned order, therefore, does not call for any interference by this Court.

From a perusal of the provision of section 319 Cr.P.C. it is clear that the court is empowered to summon a person as additional accused when in the course of enquiry or trial it appears that any person not being the accused has committed any offence, for which he could be tried together with the accused.

There is a series of judgment of this Court as well as of the Hon''ble Apex Court as to what would be sufficient evidence for summoning a person u/s 319 Cr.P.C. as an accused. The latest pronouncement on the subject by the Hon''ble Apex Court is Hardeep Singh Vs. State of Punjab and Others, , in which the Hon''ble Supreme Court has held that an order under the provision of Section 319 Cr.P.C. should not be passed only because the first informant or one of the witnesses seeks to implicate another person. Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Such an evidence must be convincing also at least for the purpose of invoking extra ordinary jurisdiction. The courts are required to apply stringent test, one of the test being whether evidence on record is such as may reasonably lead to conviction of the person sought to be summoned. Subsequently, in the case of Lal Suraj @ Suraj Singh and Another Vs. State of Jharkhand, , the Hon''ble Supreme Court has reiterated that the power u/s 319 Cr.P.C. to summon the accused has to be exercised sparingly and with caution and only when the court is satisfied that some offence is being committed by such person and this power has to be essentially exercised only on the basis of evidence.

In the order impugned in the present petition, the learned court below has referred to the statement of the witnesses recorded by the Investigating Officer u/s 161 Cr.P.C. but the learned trial court has not considered the evidence recorded during the trial. The learned trial court has not discussed as to what the witnesses have stated before the court during the trial. The learned trial court has passed the impugned order only on the ground that from the evidence on record there is sufficient evidence to summon the petitioners u/s 319 Cr.P.C. but no cogent reason or ground has been disclosed in the impugned order except that witness have stated before the I.O. that the petitioners were also involved in the offence.

Having considered the law laid down by the Hon''ble Apex Court and having gone through the order impugned in this petition, I am of the view that the learned trial court while considering the application u/s 319 Cr.P.C. has not exercised its power in accordance with the settled principle of law.

The petition is allowed and the impugned order dated 27.11.2012 is hereby quashed. The learned trial court is directed to consider the application of the prosecution moved u/s 319 Cr.P.C. again in the light of the law laid down by the Hon''ble Apex Court, within a month from the date, a certified copy of this order is placed before it.

Interim order, if any, stands discharged.