Summoning an accused under section 319 Cr.P.C. should be based on stringent tests, convincing evidence, and satisfaction regarding the possibility of conviction, and the charges can be framed based on the disclosure of a prima facie offense, but summoning another person to face trial should be based on further satisfaction of a good chance of conviction and sufficient evidence.

Arvind Kumar Tripathi,J.:-

Heard learned counsel for the applicant, learned counsel for the complainant and learned A.G.A.

2. An application under section 319 Cr.P.C. has been filed to summon the applicant. The applicant was summoned vide order dated 2.12.1996 to face the trial along with other accused in S.T. No. 228 of 1995 State Vs. Rampal Agnihotri and others, under sections 498-A/304-B I.P.C. arising out of case Crime No. 107 of 1994 P.S. Sheorajpur District Kanpur Dehat.

3. Learned counsel for the applicant contended that the entire family was implicated in the present case. However after investigation no charge sheet was filed against the applicant. The charges were framed and the case was committed for trial to the court of Session. After statement of informant Ramjeewan, father of the deceased the applicant was summoned by the Addl. Sessions Judge, Kanpur Dehat in the present case without giving reason and without recording satisfaction with regard to the possibility of conviction of the applicant. Neither the evidence nor the reason has been mentioned in the order. Merely mentioning that prima facie offence was disclosed, the applicant was summoned which is against the provision of section 319 Cr.P.C. and against the judgment of Hon. Apex Court as well as of this Court.

4. Learned A.G.A. and learned counsel for opposite party-complainant have opposed the version of the applicant and submitted that since there was sufficient evidence and material on record and the name of the applicant was clearly mentioned in the statement of Ramjeewan, informant along with other co-accused, hence the court below has not committed any illegality in the impugned order, therefore the present application is liable to be rejected.

5. The evidence for summoning the accused u/s 319 Cr.P.C. is only those evidence which are placed before the trial court. In the present case only the statement of Ramjeewan informant who was not eye witness was recorded. In his statement it was mentioned that his two sons Arvind and Vidya Shanker were present at the place of incident in the house of the accused. However the trial court without waiting for statement of those witnesses who were alleged to have been present in the house of the accused at the time of incident, the applicant was summoned to face the trial. Apart from that no reasons or any satisfaction was recorded to the effect that the court was satisfied regarding possibility of conviction.

6. The counsel for the applicant has relied upon the judgment of this Court reported in 2010(5) ADJ 628 Rajol and others Vs. State of U.P. and another as well as of Hon. Apex Court in 2010 (2) SCC (Cri) 141 Sarabjit Singh and another Vs. State of Punjab and another and 2009 AIR (SC) 1248 Brindaban Das and others Vs. State of West Bengal.

He has referred para 17 of the Judgment of Hon. Apex Court in case of Sarbjit Singh (Supra) which is quoted herein below:

"The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criteria laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question ? Indisputabley, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraoridnary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.

8. We may notice that in Y. Saraba Reddy V. Puthur Rami Reddy and Anr. (JT 2007 (6) SC 460), this Court opined:

"......Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court....."

9. An order unde

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