Court No. - 48
Case :- APPLICATION U/S 482 No. - 37136 of 2017 Applicant :- Om Prakash Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Garun Pal Singh,Vikas Sharma Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
This application u/s 482 of Cr.P.C. has been moved on behalf of applicant seeking the quashing of impugned order dated 12.01.2016 passed by learned Additional District Judge, Court No.2, Hathras in Sessions Trial No.38 of 2011 (State vs. Khayali Ram) arising out of Case Crime No.59 of 2005, u/s 316, 323, 504, 506 I.P.C. and Section 3(1)(10) of SC/ST Act, Police Station-Sahpau, District-Hathras and all consequential proceedings.
Heard learned counsel for the applicant and learned A.G.A. and perused the record.
Submission of counsel for the applicants is that the summoning u/s 319 Cr.P.C. has been done without recording the finding that the evidence is of such nature that will result in the conviction of the accused. Contention is that the evidence produced in the court should be of such nature which must constitute a sure basis to entail conviction, otherwise the additional accused should not be summoned to face trial. Learned counsel has sought to contend that the evidence produced in the court is not worth placing reliance upon and the prosecution cannot succeed to procure from the court the verdict of the guilt against the accused on that basis. Further submission is that no charge sheet was submitted against the applicants as the Investigating Officer did not find or collect any evidence which could justify the submission of charge sheet against the applicants and this aspect of the matter has been wholly ignored by the trial court and the court proceeded only on the basis of the evidence produced in the court without any reference to the findings and conclusions arrived at by the Investigating Officer.
So far as the requirement of recording the finding about the sufficiency of evidence for the purposes of conviction is concerned, there is no such requirement of law. The standard of adjudging the sufficiency of evidence to vindicate the summoning of additional accused u/s 319 of Cr.P.C. is not the same which is to be applied at the time of final adjudication on the point of guilt or innocence of a particular accused. The two are different stages and required different degrees of rigour to be employed in evaluating the evidence and its worth. It cannot be successfully argued that all those accused who are summoned u/s 319 of Cr.P.C. must be attended with the fate of conviction at the time of final judgement. The only desirable thing is that while summoning the additional accused u/s 319 Cr.P.C. the court has to be circumspect and should apply a higher standard of satisfaction and a superior standard of evaluating the sufficiency of evidence to summon the additional accused. The standard to summon an accused u/s 204 of Cr.P.C. is on a different footing than the yardstick which is to be employed in deciding the appropriateness of summoning an additional accused u/s 319 Cr.P.C., and as per the Apex Court's decision given in the case of Hardeep Singh vs. State of Punjab and others, 2014 (3) SCC-92 the requirement is that the court should not proceed in a cavalier fashion and should be evaluating the evidence with a higher standard of appreciation with care.
So far as the investigation aspect of the matter is concerned, the law in this regard is also well settled. The findings of the Investigating Officer or the material collected by him are no conclusive or binding guidelines for the court which must act independently on its own. Even in cases where the Investigating officer failed to collect sufficient evidence against the accused persons nominated in the F.I.R. or even in those cases where according to the inference drawn by the Investigating Officer certain accused were found to have been wrongly nominated, the trial court can still proceed to summon such accused to face trial if the evidence produced against such accused before the court inspires confidence. The submission of final report in favour of certain accused or the non submission of the charge sheet against certain accused does not and cannot denude the trial court from its power and jurisdiction to summon those accused to face trial. It shall all depend upon the nature of evidence produced in the court during the course of trial from which shall emanate the need, justification and desirability or the appropriateness of summoning the additional accused who are not facing the trial before the court.
So far as the facts of the present case are concerned, there is no ambiguity and the order passed by the court below reflects judicial application of mind. The facts have been analyzed in right perspective and the order impugned does not reflect either perversity or any casual approach. There is nothing to indicate that the court has proceeded in a cavalier fashion or that the sufficiency of evidence was in any manner lacking for the purposes of invoking the provisions of Section-319 of Cr.P.C. It is also to be kept in perspective that exercise of power u/s 319 of Cr.P.C. is a matter which comes within the realm of the trial court and involves the exercise of trial's court judicial discretion. Ordinarily unless some element of perversity in the exercise of such discretion is found or some express breach of law or some flagrant misreading of evidence is reflected in the order passed by the trial court, this Court is slow to interfere and substitute the lower court's discretion by its own, even if a different or another view could also have possibly been taken. In the present case, this Court does not see any good reason to take a different view in the matter than the one that has been adopted by the trial court.
In the considered opinion of this Court, the application has no merits and there is no justifiable reason to interfere in the impugned order. The prayer to quash the impugned order is therefore, refused.
However, in the peculiar facts and circumstances of the case, it may be observed that in case the bail has not been obtained as yet, the applicants may appear before the court below and apply for bail within two months from today, the same shall be considered and decided expeditiously in accordance with law.
No coercive measures shall be taken or given effect to in the aforesaid period or till the date of appearance of the applicants in the court below, whichever is earlier.
It is clarified that this order has been passed only with regard to the applicants on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.
With the aforesaid observations this application is finally disposed off.
Order Date :- 8.11.2017 M. Kumar