Allahabad High Court sets aside order passed by the Additional Sessions Judge

The Lucknow Bench of the Allahabad High Court while allowing the appeal set aside the order passed by the Additional Sessions Judge, Sitapur, whereby the appellants have been summoned under Section 319 Cr.P.C in Special Trial (State Vs Shivpal Singh & Others), under Sections 452, 323, 427, 504, 506 I.P.C and Section 3(1)(Gha) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kotwali, District Sitapur.

A Single Bench of Justice Shamim Ahmed passed this order while hearing a Criminal Appeal filed by Vishwapal Singh And 2 Ors.

Counsel for the appellants submitted that initially an impugned F.I.R was lodged by the opposite party no 2, complainant on 29.02.2016 at Case under Sections 323, 147, 452, 504, 506, 427 I.P.C and Section 3(1)(xi) of S.C/S.T Act against the five persons including the appellants. Thereafter, the matter was thoroughly investigated and nothing was found against the appellants and they were expunged by the Investigating Officer.

Counsel for the appellants further submitted that opposite party no 2 moved an application dated 16.09.2019 under Section 319 Cr.P.C before the court below for summoning the appellants to face trial.

He further submitted that against the application under Section 319 Cr.P.C, objection was filed by the appellants on 04.10.2019.

Counsel for the appellants also submitted that the appellants have not committed any offence as alleged by the complainant and from a bare perusal of the evidence collected by the Investigating Officer, it is crystal clear that the appellants have not participated in the alleged offence.

Counsel for the appellants said that the application dated 16.09.2019 moved by the opposite party no 2, complainant under Section 319 Cr.P.C is not supported with any affidavit nor any cogent reason has been given as to why the appellants be summoned after a long time of lodging of the first information report, as such, it shows the malafide arbitrary intention of the complainant just to harass the appellants.

Counsel for the appellants further said that the order dated 04.03.2020 passed by the Additional Sessions Judge, Sitapur, by which the appellants were summoned, is also non speaking as the Magistrate has not considered any material available before him while summoning the appellants to face the trial. As such, the impugned order dated 04.03.2020 on the face of record appears to be unjustified and is passed without application of judicial mind, therefore, the same is liable to be set aside by the Court and the appeal be allowed.

A.G.A for the State as well as counsel for the opposite party no 2 have opposed the argument raised by the counsel for the appellants and have jointly submitted that the order dated 04.03.2020, summoning the appellants under Section 319 Cr.P.C, was rightly passed, as such, the same is not liable to be quashed and the appeal is liable to be rejected.

The Court observed that,

After hearing counsel for the parties and perusal of record, it reveals that the charge-sheet has not been filed against the appellants. The appellants have been summoned merely on the application given by the opposite party no 2, complainant under Section 319 CrPC. It also reveals that a Civil Suit (Shivpal Singh & Others Vs Ram Swaroop & Others) is pending between the parties, as such, the prosecution has tried to give colour of criminal nature to a civil dispute.

Further, the Court finds that the application dated 16.09.2019 filed by the opposite party no 2, complainant under Section 319 Cr.P.C before the court below is not supported with any affidavit nor any cogent reason has been given so that the appellants be summoned by the court below. Even though when the names of the appellants were dropped/expunged during the investigation, the opposite party no 2, complainant has not filed any protest petition against the same, however, after a long gap, the application under Section 319 Cr.P.C was filed that too without assigning any cogent reason.

It is further observed by the Court that in application dated 16.09.2019 filed by the opposite party no 2, complainant under Section 319 Cr.P.C, the same allegation has been leveled which was leveled in the first information report and further that the trial court, while passing the order dated 04.03.2020 did not consider this aspect that the power under Section 319 Cr.P.C is a discretionary and extraordinary power, which should be sparingly used and only in those cases where the circumstances of the case so warrant, has passed the order in cursory manner and without application of judicial mind.

“In the case, it is apparent that the order under Section 319 CrPC is based on the statement of the complainant without considering the relevant facts and without recording any satisfaction that there is some cogent evidence which may lead to their conviction even otherwise the appellants were already expunged by the Investigating Officer and final report was submitted against them.

In the matter of Hardeep Singh & Bijendra Singh (supra) and other judgments, the Apex Court is clearly of the view that evidence should be more prima facie, if unrebutted, would lead to conviction, here no such satisfaction has been recorded by the Additional Sessions Judge, Sitapur while passing the summoning order dated 04.03.2020.

Thus, in view of the law laid down by the Apex Court and the facts and circumstances, as narrated above and from the perusal of the record, the summoning order dated 04.03.2020 passed by the Additional Sessions Judge, Sitapur, summoning the appellants under Section 319 Cr.P.C, is against the spirit and directions issued by the Apex Court and is liable to be set aside”, the Court further observed while allowing the appeal.

“Accordingly, the order dated 04.03.2020 passed by the Additional Sessions Judge, Sitapur, whereby the appellants have been summoned under Section 319 Cr.P.C in Special Trial (State Vs Shivpal Singh & Others), under Sections 452, 323, 427, 504, 506 I.P.C and Section 3(1)(Gha) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kotwali, District Sitapur is hereby set aside and reversed”, the Court ordered.

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