The level of satisfaction for summoning under Section 319 of the Code should be higher than a prima facie case, and the summoning should be justified based on stronger evidence than mere probability of complicity.

JUDGMENT :

Ravindra Maithani, J.

Challenge in the petition is made to the following:-

(i) the order dated 03.11.2017, passed in the Criminal Case No. 420 of 2012 Deepak Bahtham Vs. Vivek Sharma and others under section 379 IPC (“the case”) by the court of Judicial Magistrate, Narendra Nagar, District Tehri Garhwal. By this order an application under Section 319 of the Code of Criminal Procedure, 1973. (“the Code”) filed by the respondent no. 2 (“the complainant”) has been allowed and the petitioners Smt. Priya Sharma and Rahul Sharma have been summoned to answer the accusation under section 379 IPC.

(ii) the order dated 27.09.2018 passed in the Criminal Revision No. 29 of 2017 Rahul Sharma and another Vs. State of Uttarakhand and another by court of Additional District and Sessions Judge, District Tehri Garhwal. By it, the impugned order dated 03.11.2017 has been upheld.

2. Facts, briefly stated, are as follows:-

The complainant filed an application under Section 156 (3) of the Code for investigation, on which, a police report was sought. The police reported that no offence as such is made out. It is, thereafter that the application under Section 156 (3) of the Code was registered as a complaint. After inquiry, under Section 200 and 202 of the Code, vide order dated 14.03.2013, four persons were summoned to answer the accusations under Section 379 IPC. The trial continued. At the stage of recording of evidence under section 244 of the Code, five witnesses were examined, namely, PW1 Deepak Bothem, PW2 Shubham, PW3 Harshit Goel, PW4 Manik Goel and PW5 Sri Krishna. Thereafter, the complainant moved an application under Section 319 of the Code with the request that there is evidence against the petitioners as well and they may be tried along with the accused. Therefore, the petitioners may also be summoned to answer the accusations under Section 379 IPC. By the impugned order dated 03.11.2017, the application was allowed and the petitioners were summoned to answer the accusations under Section 319 IPC. The order dated 03.11.2017 was unsuccessfully challenged by the petitioners, in Criminal Revision No. 29 of 2017, Rahul Sharma and another Vs. State of Uttarakhand and another, in the court of Additional District and Sessions Judge, Tehri Garhwal.

3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioners would submit that while summoning an accused under Section 319 IPC, the level of satisfaction should be more than a prima facie case, which is required at the stage of initial summoning of an accused. Learned counsel raised the following points in his arguments:-

(i) After the stage of section 244 of the Code, the Magistrate has to form an opinion as to whether charge may be framed or the accused may be discharged. It is argued that what if, the main accused are discharged? It is argued that in such case, the summoning of the petitioners at this stage, would be a futile exercise.

(ii) At the stage of section 244 of the Code, though, the Magistrate may exercise jurisdiction under Section 319 of the Code to summon any person, but, it should not be a routine and mechanical exercise.

(iii) At the stage of inquiry under Sections 200 and 202 of the Code, similar evidence was available, which then was not found sufficient to summon the petitioners to answer the accusations under Section 379 IPC. Therefore, it is argued that the same set of evidence with some more persons, appearing as a witness, may not be a ground to summon the petitioners now.

(iv) Offence under Sections 379 IPC is punishable with the imprisonment for three years in period, the limitation for taking cognizance of the offence under Section 468 of the Code is three years. Allegedly, the offence was committed on 24.12.2012 and the summoning under Section 319 of the Code has been done on 03.11.2017, which is beyond limitation.

5. Learned counsel for the petitioners has referred to a judgment in the case of Hardeep Singh Vs. State of Punjab an