PANKAJ NAQVI, J. - (1.) HEARD Sri Rajrshi Gupta, learned counsel for the revisionists and learned A.G.A. This criminal revision is preferred against the order dated 3.3.2015, passed by Addl. Sessions Judge, Auraiya in S.T. No.26/2010, whereby revisionists have been summoned under Section 319 Cr.P.C. for offences under Section 498 -A/304 -B IPC and 3 / 4 of D.P. Act. The informant alleged that he married his daughter with Jagdish Yadav, s/o Rajendra Yadav on 26.2.2008; soon thereafter his daughter was physically/mentally maltreated and harassed for want of additional dowry in the form of a motorcycle and a gold chain by Rajendra Singh (father -in -law), Sachin Sahni @ Santu (husband), Soni (sister -in -law), Satyawati (mother -in -law) and Mahavir Prasad (maternal uncle) so much so that on 13.6.2009 she was put to death by appellants and the accused persons by pouring kerosene over her and setting her on fire. During investigation, charge -sheet was filed against husband, father -in -law and mother -in -law only on the ground that revisionist nos. 1 and 2 were living in different city. Upon committal, charges were framed, the accused persons were put on trial. During trial, P.W. -1 Rati Ram (father) and P.W. -2 Ranju Yadav were examined. The trial court relying upon their testimony, proceeded to summon the revisionists under Section 319 Cr.P.C, which is impugned herein.
(2.) IT is submitted that once the Investigating Officer after being apprised that the present revisionists had no role whatsoever in the commission of the alleged offence, dropped them at the stage of investigation, there was no justifiable reason for the court below to have summoned them under Section 319 Cr.P.C. He further submits that the informant neither in the FIR nor in his statement under Section 161 Cr.P.C. assigned any role to the revisionists and that it was only for the first time in his substantive evidence that he assigned a role vis -a -vis the present revisionists. He also contends that the court below has only relied upon the testimony of P.W. -1 and did not take into consideration the evidence of P.W. -2. He finally relied upon the judgment of the Apex Court in the case of Hardeep Singh v. State of Punjab and others, 2014 3 SCC 92 to contend that in the absence of any satisfaction recorded by the court below as contemplated by the Apex Court, which should be more than that of framing of charge, but short of conviction of guilt, the impugned order stands vitiated.
(3.) THE Constitution Bench of the Apex Court in the case of Hardeep Singh , after examining the previous decisions, culled out the following proposition of law in so far relevant for the present case: - 105. Power under Section 319 Cr.P.C. is a discretionary and 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 persons 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, 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 unrebutted, 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". 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. P.W. 1 stated that subsequent to the marriage of his daughter, she was informed by her daughter that Rajendra, Satyawati, Sachin, Soni and Mahavir Prasad used to invariably demand a motorcycle and a gold chain and in this connection, they also used to physically torture her. He further stated that it was P.W. -2 Raju and one Shyam Singh, who informed him of the alleged death under suspicious circumstances with the use of kerosene oil. P.W. -2 also stated that he had seen Sachin (husband), Soni (sister -in -law) and Mahavir (mama) catching -hold of the victim and also taking can of five litre kerosene from the hands of Ramawati and the matchstick was lighted by Rajendra Kumar.;