The power under Section 319 Cr.P.C. should be exercised sparingly and only when strong and cogent evidence occurs against a person.

JUDGMENT :

SHAMIM AHMED, J.

1. Pleadings have already been exchanged between the parties are on the record.

2. Heard Shri Suresh Kumar Yadav, the learned counsel for the applicant, learned A.G.A. for the State and perused the record.

3. The applicant, Puspha Devi, has moved the present bail application seeking bail in Case Crime No. 327 of 2018, under Sections 302, 120-B I.P.C. Police Station Mohammadpur Khala, District Barabanki.

4. Learned counsel for the applicant submits that accused applicant has falsely been implicated in the present case. It is further submitted that the applicant was not named in the F.I.R. and she was summoned under Section 319 Cr.P.C. on the premise of statements of witnesses, PW-7, PW-9 and PW-10 in the trial court who have maliciously taken the name of applicant with intention to implicate the applicant falsely. The complainant in her statement before the trial court has not taken the name of applicant. As per prosecution case, the main role has been assigned to co-accused Gajraj Singh, who has already been granted bail by a co-ordinate Bench of this Court vide order dated 24.04.2019 passed in Bail No. 8940 of 2018. One another co-accused, Jaikaran Singh @ Chhoti, who was not named in the F.I.R. and was summoned under Section 319 Cr.P.C. has also been granted bail by a coordinate Bench of this Court vide order dated 26.02.2020 passed in bail No. 10612 of 2020, and the case of applicant is not on the worse footing than that of the co-accused, Jaikaran Singh @ Chhoti, who has been enlarged on bail.

5. Learned counsel for the applicant further submits that summoning order dated 31.07.2019 is also against the spirit of various judgments of Hon'ble Supreme Court. He placed reliance upon a judgment of Constitution Bench of Hon'ble Apex Court in the case of Hardeep Singh vs. State of Punjab and Others, (2014) 3 SCC 92, wherein paragraphs-105 and 106 it has been observed as under:

“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 necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima-facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused.”

6. The words used are not “for which such person could be convicted.” There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.” The above Constitution Bench judgment was duly considered by the Hon'ble Apex Court in the case of Labhuji Amratji Thakor and Others vs. State of Gujarat and Another, 2018 (0) Supreme (SC) 1147. Paragraph-9 of the aforesaid judgment reads as under:

“9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid dow