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ALLAHABAD HIGH COURT
Shri Kant Tripathi, J.
Ram Raj Tewari -Appellant
Versus
State of U.P.and another -Respondent
Crl. Misc. Case No. 2196 of 2010
Decided On : 26-05-2010
Section 319 CrPC - Summoning Order - 419, 420, 467, 468, 471 IPC - 319 CrPC, 227 CrPC, 482 CrPC - The court discussed the ambit and scope of section 319 CrPC and the power to add any person as accused if there is sufficient evidence indicating involvement in the offence. It highlighted the necessity of cross-examination of witnesses before invoking section 319 CrPC and the requirement for compelling reasons to take cognizance against a person not named as an accused. The court emphasized that the power under section 319 CrPC should be used sparingly and only if there is a reasonable prospect of conviction of the person sought to be summoned. The judgment also addressed the standard of evidence required for summoning an additional accused, stating that it should be higher than the evidence required for framing charges and that the evidence on record should appeal to reason for the purposes of section 319 CrPC.
Fact of the Case:
The petitioner was summoned to face trial for offences under sections 419, 420, 467, 468, 471 IPC based on the statements of witnesses. The petitioner challenged the summoning order, arguing that the trial court did not record satisfaction of the possibility of conviction and that the summoning order was passed without cross-examining other witnesses.
Finding of the Court:
The court found that the summoning order lacked a specific finding on whether the evidence, if unrebutted, would be sufficient to record a conviction against the petitioner. As a result, the impugned order was set aside and the matter was remanded to the trial court for reconsideration.
Issues: The issues revolved around the sufficiency of evidence for summoning the petitioner, the necessity of cross-examination before invoking section 319 CrPC, and the standard of evidence required for summoning an additional accused.
Ratio Decidendi: The court emphasized that the power under section 319 CrPC should be used sparingly and only if there is a reasonable prospect of conviction of the person sought to be summoned. It also highlighted the necessity of cross-examination of witnesses before invoking section 319 CrPC and the requirement for compelling reasons to take cognizance against a person not named as an accused. The judgment addressed the standard of evidence required for summoning an additional accused, stating that it should be higher than the evidence required for framing charges and that the evidence on record should appeal to reason for the purposes of section 319 CrPC.
Final Decision: The petition under section 482 CrPC was allowed, and the impugned order was set aside. The matter was remanded to the trial court for reconsideration in accordance with the court's observations.
1. Heard the learned counsel for the petitioner and the learned AGA for the respondent no.1 and perused the impugned judgment and order.
2. With the consent of the learned counsel for the parties, this petition is being disposed of finally at the stage of admission.
3. It appears that the petitioner Ram Raj Tiwari has been summoned under section 319 CrPC to face trial in regard to the offences under sections 419, 420, 467, 468 and 471 IPC in case crime no. 127/1995, police station Itiathok, district Gonda by the Judicial Magistrate-I, Gonda, vide the order dated 5.8.2008, which was subsequently affirmed by the Special Judge (E.C.Act) Gonda vide the order dated 8.4.2010 in criminal revision no.318/2009.
4. During the trial, PW-1 Ghanshyam, PW-2 Ram Tirath and PW-3 Renu were examined, who have deposed in regard to complicity of the petitioner along with the charge-sheeted accused. The concerned Magistrate placing reliance on the statements of the said witnesses, has passed the impugned order summoning the petitioner and his revision against the summoning order was dismissed.
5. The learned counsel for the petitioner submitted that the learned trial court has not recorded any satisfaction that on the basis of the evidence adduced, there was a possibility of conviction of the petitioner, therefore, the summoning order is bad.
6. The learned Magistrate has passed the summoning order only on the basis of the statements of the aforesaid witnesses without examining other witnesses and getting them cross-examined.
7. In Joginder Singh v. State of Punjab (1979) 1 SCC 345), the Apex Court while dealing with the ambit and scope of section 319 CrPC, held that the court has power to add any person as accused if there is sufficient evidence indicating his involvement in the offence.
8. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983 (1) SCC 1) the Apex Court after referring to the decision of Joginder Singh's case (supra) observed that the power under section 319 CrPC is an extra ordinary power, which should be used very sparingly only if compelling reasons exists for taking cognizance against the other person against whom some action has not been taken.
9. In the case of Rakesh & another vs. State of Hariyana, 2001 SCC (Crl) 1090, the Apex Court extended the meaning of the term 'evidence' used in section 319 CrPC to include not only the evidence given during the inquiry or trial but also the evidence collected during the investigation and forming part of the case diary. The Apex Court overruled the submission that the term 'evidence' used in section 319 CrPC would mean "evidence which is tested by cross- examination' by holding that the question of testing the evidence by cross-examination would arise only after addition of the accused.
10. But in the case of Mohd. Shafi v. Mohd. Rafiq & Anr., (2007) 4 SCR 1023, the Apex Court expressed a contrary opinion and propounded that the trial judge in terms of Section 319 CrPC was required to arrive at his satisfaction only after the cross-examination of the witnesses is over with no exception.
11. Another Division Bench of the Apex Court in the case of Hardeep Singh vs. State of and Punjab and another 2008 (16) SCALE 276, doubted the correctness of the judgment rendered in the case of Mohd. Shafi v. Mohd. Rafiq & another (supra) and referred the following two questions to a Larger Bench:
(i) When the power under sub-section (1) of section 319 of the Code of addition of accused can be exercised by a Court? Whether application under section 319 is not maintainable unless the cross-examination of the witness is complete?
(ii) What is the test and what are the guidelines of exercising power under sub-section (1) of section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?
12. However, in Hardeep Singh's case (supra) the Apex Court held that at the stage of issuing summons or proce
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