Umesh Chandra vs State of U.P.

Shri Kant Tripathi, J.—This is a petition u/s 482 Code of Criminal Procedure for quashing the order dated 26.06.2009 rendered by Additional Sessions Judge, Court No. 31, Barabanki in S.T. No. 317 of 2007, State v. Nanha alias Nanhoo and Ors., whereby the learned Additional Sessions Judge has summoned the Applicants u/s 319 of the Code of criminal Procedure (in short Code of Criminal Procedure) to face trial in regard to the offences under Sections 308 read with Section 34, 323 read with Section 34, and Section 504, 506 I.P.C.

Heard the learned Counsel for the Applicant and the learned AGA and perused the impugned judgment and order.

With the consent of the learned Counsel for the Applicant and the learned AGA, the instant petition is being disposed of finally at the stage of admission.

It appears that the Applicant''s name did not find place in the charge-sheet submitted by the investigating officer but during the trial only one witness (PW-1, Ram Sewak) was examined and the learned Additional Sessions Judge passed the summoning order only on the basis of that statement without taking any other evidence.

The learned Counsel for the Applicant submitted that the learned Additional Sessions Judge has not recorded any finding on the question as to whether the evidence adduced against the Applicants, if uncontroverted, would reasonably lead to the conviction of the Applicant.

In the case of Sarabjit Singh and Anr. v. State of Punjab and Anr. (LXVI)2009 ACC 32, Brindaban Das and Ors. v. State of West Bengal (LXVI) 2009 ACC 273 , Michael Machado and Another Vs. Central Bureau of Investigation and Another, and Krishnappa Vs. State of Karnataka, the Apex Court has very clearly held that summoning order should be passed only when the evidence adduced in support of the application u/s 319 Code of Criminal Procedure if uncontroverted, is of such a nature as to reasonably lead to conviction of the person sought to be summoned.

After considering the aforesaid case laws and few other decisions of the Apex Court, this Court in the case of Rajol v. State of U.P. 2010 (5) ADJ 628 has observed in para 22 as follows:

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.

In the present case, no doubt the learned Additional Sessions Judge has passed a detailed order but he, nowhere, recorded any specific finding on the question whether the evidence adduced in support of the application u/s 319 Code of Criminal Procedure, if uncontroverted, would reasonably lead to conviction of the Petitioner. In absence of any finding on this point, the summoning order can not be upheld.

For the reasons discussed above, the petition is allowed. The impugned order dated 26.06.2009 is set aside. The matter is remanded to the learned Additional Sessions Judge, with the direction to reconsider the application in the light of the observations made herein above and pass an appropriate order afresh in accordance with law.

The application u/s 319 Code of Criminal Procedure shall be disposed of if possible within a period of six months. Interim order, if any, is vacated.