IMPORTANT POINT
Only when strong and cogent evidence occurs against a person from evidence power under Section 319 Cr.P.C. should be exercised – Power cannot be exercised in a casual and cavalier manner.

JUDGMENT :

K.M. JOSEPH, J.

1. Leave granted.

2. This is yet another case where summons issued purporting to invoke power under Section 319 of the Code of Criminal Procedure (Cr.P.C.) has brought the newly summoned person to this Court.

3. FIR came to be lodged on 27.06.2015 by the second respondent before us. It is inter alia alleged in the FIR that her husband(deceased) told her that he is leaving for work to meet the appellant. There is, in fact, no dispute that the deceased was the driver of the appellant. In the FIR, it is also stated that at 2 p.m., he called and informed the second respondent-his wife that he is going to Gola and shall return by evening. It is thereafter her case that her husband’s phone was switched off and an unidentified dead body was found. The second respondent reported that the murder of her husband was committed by his employer (the appellant before us) with the help of his friends. The statement came to be recorded from her on 27.06.2015. She also gave an additional statement. Thereafter, the police investigated the matter and chargesheet was filed against three persons. Thereafter, the second respondent deposed:

4. In her evidence, she has inter alia deposed that, on 23.06.2015, her husband left home at around 7-8 in the morning telling her that his car owner had called him immediately. On the same day her husband called her around 2 p.m. on her mobile phone and told her that he was going to Gola with the appellant and that he will return by evening. She also deposed that when she called the appellant, he told her that the car was found near the Government tubewell near Lagucha and that slippers of her husband were lying in that car. She has also stated that she and her family are convinced that her husband was murdered by the appellant with the help of his friends. She further stated that she is fully confident that her husband was murdered by the appellant. This statement was made on 05.08.2017. On the very same day, an application was filed on behalf of the prosecution invoking Section 319 Cr.P.C. The Sessions Judge, Khiri, by order dated 11.09.2018, took the view that the power under Section 319 Cr.P.C. has to be invoked and ordered to summon the appellant. This order came to be unsuccessfully challenged before the High Court. It is thus, the appellant is before us.

5. We have heard Mr. Gaurav Srivastava, learned counsel for the appellant, Mr. Adarsh Upadhyay, learned counsel for the first respondent-State and Ms. Sansriti Pathak, learned counsel for the second respondent.

6. Learned counsel for the appellant would point out that the courts have erred in law in invoking power under Section 319 Cr.P.C. solely based on the deposition as already noted by us, given by the second respondent. The appellant has relied on the judgments of this Court rendered in Hardeep Singh v. State of Punjab and Others (2014) 3 SCC 92 and Labhuji Amratji Thakor and Others v. State of Gujarat and Another AIR 2019 SC 734.

7. While this Court has approved of relying upon deposition which has not suffered cross examination for the purpose of invoking Section 319 Cr.P.C., it is relevant to note the standards which have been fixed by this Court for invoking the power under Section 319 Cr.P.C. The statement of law in this regard is contained in paragraphs 105 and 106 of Hardeep Singh (supra):

105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not neces