TaxTMI 
TaxTMI 
2024 (5) TMI 1595
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.... under Section 302 IPC. Both the Appellants being identically placed, their appeals are being dealt with together. 3. The issue that arises for our consideration is whether there is sufficient material against the Appellant prompting the Trial Court to pass a summoning order under Section 319 Cr.P.C. The principles of law being settled by the judgments of the constitutional benches of this Court, this question hinges upon the facts of the present case, which is as follows: 4. Facts and investigation: On 10.05.2011, the first informant (PW-1), who is the mother of the deceased, got an FIR lodged at P.S. Ghatampur, informing that her son was found dead near a tubewell in the wheat field of a fellow villager. In her statement, she alleged that her son was murdered by the present appellants, the father of the appellants, along with two others, due to certain old enmity existing between the two families. 5. The following day, the investigation officer recorded a statement of PW-1 under Section 161 Cr.P.C. In this statement she also stated that the deceased was quarrelsome, had a habit of picking up fights with other villagers and had a few criminal cases going on against them. ....
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....ing certain previous decisions of this Court where it was held that if the evidence tendered in the course of trial shows that any person not named as an accused has a role to play in the commission of the offence, then he could be summoned to face trial even though he may not have been charge sheeted. 10. High Court: The above order passed by the Trial Court was challenged by the Appellants before the High Court by filing a petition under Section 482 Cr.P.C. This petition came to be dismissed by the High Court by its order dated 04.04.2023. While dismissing the petition, the High Court noted that at the stage of Section 482, the Court is only supposed to see if there exists a prima-facie case. It is this order of the High Court which is impugned before us. 11. Issue: The only question arising in the present appeal is whether the power under Section 319 Cr.P.C. has been properly exercised in light of the facts of the present case and evidence on record. 12. Analysis: We have heard Ld. counsel for appellants, Ms. Preetika Dwivedi and Ld. counsel for the Respondent State Mr. Ankit Goel. 13. At the outset, we may note that the four accused who were charge-sheeted, have pas....
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.... Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter... 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. 106. Thus, we hold that though only 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....
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.... Singh and accompanied Vijay Singh and Mahendra Singh and all four of them killed my son Vijay Singh and threw the dead body in the field near the tubewell of Mahendra Pratap Singh Bhadoria. The names of Shankar Singh and Vishal Singhs sons of Bachha Singh, which I have written in the FIR, have been written by me falsely without collecting full information. My son Vijay Singh was murdered by Mahendra Singh s/o Chandrapal Singh Sachan of village Laukaha, Bacha Singh s/o Mohan Singh of village Raha and Sanjay Singh and Kallu Singh s/o Munna Singh of village Jalala. Shankar and Vishal sons of Bacha Singh were not involved in my son's murder." (emphasis supplied) 17.3 Even in the chargesheet, which was filed after investigation, the name of the appellants has not been mentioned as accused. 17.4 It is only in her deposition before the trial court that PW-1 has once again named the appellants. However, she has also stated that she has named them only on the basis of suspicion. The relevant portion of her deposition before the Trial Court is as follows: "In my report, I made Bachha Singh, Shankar, Vishal, Kallu Singh and Mahendra Sachan accused. I had an old ....
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....ot involved in the murder of her son. 22. When we contrast this statement with her deposition given five years later, we do not see a drastic change in the stand of PW-1. Even in her chief examination, she had stated that she had an old enmity with the family of the accused. However, in her cross examination, she clarified that as the enmity with the appellants family was going on for the last eleven years, names of the appellants were mentioned in the FIR on the basis of suspicion. Therefore, the change of circumstance which the prosecution seeks to contend on the basis of PW-1's deposition does not satisfy the requirement of Section 319 at all. 23. Having considered the matter in detail, we are of the opinion that PW-1, not being an eye-witness, her deposition is not sufficient enough to invoke the extra-ordinary jurisdiction under Section 319 to summon the appellants. 24. There are no other witnesses who have deposed against the appellants. There is no documentary evidence that the prosecution had collected against the appellants. There is absolutely no role that is attributed to the appellants. We are of the opinion that the deposition of PW-1 is also in line and consi....