S.N.H.ZAIDI, J. - (1.) HEARD learned Counsel for the petitioner, learned A.G.A. for opposite party No. 1, Mr. Anil K. Tripa­thi for opposite party No. 2 and perused the material on record. By means of this petition filed under section 482, Cr.P.C., order dated 7.7.2010 passed by 1st Additional Sessions Judge, Gonda in S.T. No. 28 of 2010 has been challenged, whereby the application moved by the complainant-petitioner under sec­tion 319 Cr.P.C. for summoning opposite party No. 2 for trial along with the accused persons has been rejected. The submissions of the petitioner's Coun­sel are that despite sufficient evidence, in the statement of complainant P.W-1 Shobha Ram Pandey, showing the participation of opposite party No. 2 in the incident, the learned Trial Court after observing that at this stage defi­nite opinion/finding can not be recorded in respect of the involvement of opposite party No. 2, who was sought to be summoned, and also observing that had there been more than one injury on the person of the deceased, then the matter would have been different, has rejected the application. The contention is that the grounds on which the application is re­jected, are insufficient and untenable.
(2.) MR . Tripathi submitted that since the learned Court has specifically observed that at this stage no definite finding regard­ing involvement of opposite party No. 2 could be given, therefore, the order is in accordance with law. Hon'ble the Supreme Court in the case of Jogindar Singh v. State of Punjab, 1979 (16) ACC 43 (SC) = (1979) 1 SCC 345 while dealing with the ambit and scope of section 319 Cr.P.C. has observed that the Court has power, to add any person for trial along with the accused persons, if there is suffi­cient evidence indicating his involvement in the offence. It is also a settled proposi­tion of law that the term evidence referred to in this section contemplates the evidence of witnesses produced before the Court and not the material contained in the charge-sheet or the case diary. (Y. Sareba Reddy v. Puthur Kami Reddy, 2007 (58) ACC 573 (SC) = 2007 (54) AIC 27 (SC)). The Supreme Court in the cases of Sarabjit Singh and others v. State of Punjab and another, 2009 (66) ACC 32. Brindaban Das and others v. State of West Bengal, 2009 (66) ACC 273. Michael Machado and another v. Central Bureau of Investigation and another, 2000 (40) ACC 795 (SC) and Krishnappa v. State of Karnataka, 2004 (50) ACC 343 (SC) = 2004 (23) AIC 483 (SC) has held that a summoning order un­der section 319 Cr.P.C. should be passed only when the evidence, if uncontroverted, is of such a nature as to reasonably lead to conviction of the person sought to be sum­moned. The standard of evidence required for summoning an additional accused should be higher than the evidence re­quired for framing charges because the ju­risdiction under section 319 Cr.P.C. is to be exercised sparingly in an extra ordinary situation. Whether or not any evidence is of such a quality as to record conviction if it remains uncontroverted, is a variable question depending upon the facts and cir­cumstances of each case and no hard and fast rule can be laid down in this regard. However, the Court considering the evi­dence for the purpose of section 319 Cr.P.C. is not legally required to evaluate the evi­dence as it is ordinarily done while render­ing the final judgment but the Court has to see whether or not, the evidence on record appeals to the reason for the purposes of section 319 Cr.P.C. and the story narrated by the witnesses against the person sought to be summoned is not improbable and absurd and a conviction is possible on such statements, if un-rebutted.
(3.) A perusal of the impugned order, however, shows that while passing the or­der the learned trial Court has not consid­ered the evidence on record in view of the settled principles of law and as such the impugned order appears to be suffering with the illegality and cannot be sustained. The petition is, therefore, allowed and the impugned order dated 07.07.2010 is set aside. The matter is remitted back to the learned trial Court to reconsider the appli­cation under section 319 Cr.P.C. in the light of the above observation and pass an ap­propriate order in accordance with law, within a period of three weeks from the date a certified copy of this order is pro­duced before it. Petition Allowed.;