Munni Vs State of U.P. and Another

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Court No. - 67 Case :- CRIMINAL REVISION No. - 499 of 2020 Revisionist :- Munni Opposite Party :- State of U.P. and Another Counsel for Revisionist :- M J Akhtar,V.M. Zaidi (Sr. Adv) Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Supplementary affidavit filed by learned counsel for the revisionist today in the Court is taken on record.

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Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

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The instant criminal revision has been filed to set-aside the order dated 13.01.2020 passed by Additional Sessions Judge/Fast Track Court No.7, Mathura in Sessions Trial No.501 of 2018 (State Vs. Fareed and others) under section 319 Cr.P.C.

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Learned counsel for the appellant submitted that during the course of investigation, complicity of the revisionist was found false by the police and charge sheet was submitted dropping the name of the present revisionist and thereafter, aggrieved by the order, an application 123-Kha was moved under section 319 Cr.P.C. which was eventually allowed by the court concerned while passing the impugned order.

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Learned counsel for the revisionist has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C.

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"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

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105. Power under Section 319 CrPC 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.

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Learned counsel for the revisionist has further drawn the attention of the Court to para-12 of the above judgement:

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12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one,is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused.

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Learned counsel for the revisionist has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019.

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"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused. "

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Moreover, in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017 has stated that," Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record".

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Thus, perusing the impugned order, I have no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above) and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of eight weeks from today.

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With the aforesaid observations, this criminal revision stands disposed of.

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Order Date :- 5.8.2020/Sumit S

Munni v. State of U.P. and Another

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