The higher standard of proof required for summoning a person under Sec. 319 of Cr.P.C. and the consideration of evidence proving the innocence of the accused.

JUDGMENT

1. The order dtd. 28/10/2022 passed by the Court of Additional Civil Judge and JMFC, Bhalki in C.C.No.313/2014 allowing the application filed by the prosecution under Sec. 319 of Cr.P.C., and issuing notice to the petitioner herein, is under challenge in this petition filed under Sec. 482 of Cr.P.C.

2. Heard both sides and perused the material on record.

3. It is alleged by the prosecution that on 16/1/2014 at about 12.30 noon, in view of a civil dispute, when the complainant and his wife Rangamma were proceeding towards their land accused Nos.1 to 4 wrongfully restrained them and assaulted with club, knife etc., and caused injuries to them.

4. FIR was registered against accused Nos.1 to 4 for offences punishable under Ss. 341, 504, 323 ,324 r/w 34 of IPC. The petitioner was arraigned as accused No.4 in the FIR. However, while filing charge-sheet her name was deleted and charge-sheet was filed against accused Nos.1 to 3. Trial was held against the said accused in C.C.No.313/2014 on the file of the Court of Additional Civil Judge and JMFC, Bhalki.

5. The complainant was examined as PW.3 and his wife Rangamma was examined as PW.4. The prosecution filed an application under Sec. 319 of Cr.P.C., stating that it intends to implead the petitioner herein as additional accused in view of the evidence appearing against her given by PWs.1, 3 and 4. The contention of the prosecution was that there is sufficient material to proceed against her and therefore it is necessary to array the petitioner as an accused in this case.

6. The material on record would disclose that the evidence of PW.1 was recorded on 21/12/2017 and he turned hostile and not supported the case of prosecution. In so far as the evidence of complainant/CW.1 examined as PW.3 and his wife examined as PW.4 is concerned, their evidence was recorded on 13/2/2020. Both of them have stated that even accused - Rekha i.e., the petitioner herein twisted the hand and assaulted PW.4.

7. It is pertinent to see that I.O. was examined in this case as PW.7. His evidence was recorded on 27/11/2021. Though the evidence of PWs.3 and 4 was recorded on 13/2/2020, the prosecution did not file any application under Sec. 319 of Cr.P.C., to implead the petitioner as additional accused. On 15/2/2022 the statement of the accused was recorded under Sec. 313 of Cr.P.C. Thereafter, on 17/2/2022 the case was posted for judgment, but the case was adjourned. The application under Sec. 319 of Cr.P.C., was filed on 25/8/2022 i.e., after two and half years from the date of recording of the evidence of PWs.3 and 4.

8. It is well settled that the standard of proof employed for summoning a person as an accused under Sec. 319 of Cr.P.C., is placed on a higher pedestal and it requires higher standard of proof. The learned counsel for petitioner would contend relying on a decision of the Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab reported in (2014) 3 SCC 92 that while considering an application under Sec. 319 Cr.P.C., the test that has to be applied is one which is more than a prima facie case but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. He would point out that the I.O. himself had stated in his evidence that at the time of incident the petitioner was working as a teacher in one Satyaniketan Higher Primary School and in this regard he has marked the certificate issued by the Head master.

9. The prosecution itself has got marked Ex.P8 i.e., the certificate issued by the head master of one Satyaniketan Higher Primary School, through I.O., stating that the petitioner was working in the said school at the time of incident. It is for the said reason the petitioner was dropped from the charge-sheet. The prosecution cannot dispute its own document, which proves the innocence of the petitioner. In that view of the matter, the impugned order dtd. 28/10/2022 passed by the Court below is not sustainable in law. For the foregoing reasons the follo