- (1.) BY means of the instant application moved under section 482 Cr.P.C., the applicant has invoked the inherent powers of this Court with a prayer to quash the order dated 09.07.2009 passed by the Additional Sessions Judge, Court No.6, Hardoi in S.T.No.465 of 2008 summoning the applicant under section 319 Cr.P.C. for trial with the accused persons.
(2.) HEARD learned counsel for the applicant, learned A.G.A. for the State and perused the material on record. The submission of the applicant's learned counsel is that though the applicant was named in the report of the incident with specific role of exhortation and firing but in the investigation of the case the naming of the applicant was found false as several persons had filed affidavits showing that at the time of incident the applicant was not present in the village and charge-sheet was not filed against him. However, during the trial complainant Pintoo Singh P.W.1 and Ajai Kumar Singh P.W.2 have stated about the presence and participation of the applicant in the incident and on the basis of the statement of these witnesses, the learned trial Court, on the application moved by the complainant, summoned the applicant under section 319 Cr.P.C. for trial along with the accused-persons through the impugned order. Learned counsel further submitted that for exercising jurisdiction under section 319 Cr.P.C. it is incumbent upon the Court to satisfy itself whether or not the evidence adduced before it, if uncontroverted, would be sufficient to record conviction of the person sought to be summoned. In support of his contention, the learned counsel has relied upon the judgments of Hon'ble Supreme Court rendered in the cases of Sarabjit Singh & others vs. State of Punjab & another 2009 (66) ACC, 32, Brindaban Das and others vs. State of West Bengal, 2009 (66) ACC 273, Michael Machado and another vs. Central Bureau of Investigation and another, (2000) 3 SCC 262 and Krishnappa vs. State of Karnataka, 2004 (7) SCC 792. In the case of Sarabjeet Singh (supra) the Apex Court has held that indisputably , 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 extraordinary 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. The Apex Court further observed that an order under section 319 Cr.P.C., therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person. Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. After making these observations, the Apex Court further held that the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
(3.) ANOTHER Division Bench of the Apex Court in the case of Brindaban Das (supra), propounded the same principle and held that in matters relating to invocation of powers under section 319 CrPC, the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. The Apex Court further observed that the fulcrum on which the invocation of section 319, CrPC rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned. In the case of Michael Machado (supra), the Apex Court propounded that power under section 319 CrPC vested in the Court should be used sparingly and the evidence on which the same was to be invoked should indicate a reasonable prospect of conviction of the person sought to be summoned.;