RAMESH CHANDRA SRIVASTAVA versus THE STATE OF U. P. & ANR.

RAMESH CHANDRA SRIVASTAVA

THE STATE OF U. P. & ANR.

(Criminal Appeal No. 990 of 2021)

SEPTEMBER 13, 2021

[K. M. JOSEPH AND PAMIDIGHANTAMSRI NARASIMHA, JJ.]

Code of Criminal Procedure, 1973 – s.319 – Summonspurporting to invoke power u/s.319 CrPC – Challenge to – Murder– Deposition of second respondent that her husband (deceased)was murdered by his employer (the appellant) with the help of hisfriends – Deceased was the driver of appellant – Application onbehalf of prosecution invoking s.319 CrPC – Sessions Judge heldthat power u/s.319 CrPC has to be invoked and ordered to summonthe appellant – Order upheld by High Court – Held: The statementof law as regards the standards fixed for invoking power u/s.319CrPC is contained in paragraphs 105 and 106 of the ConstitutionBench decision of Supreme Court in Hardeep Singh case – The testas laid down in Hardeep Singh case for invoking power u/s.319CrPC inter alia includes the principle that only when strong andcogent evidence occurs against person from the evidence, thepower u/s.319 Cr.P.C. should be exercised – The power cannot beexercised in casual and cavalier manner – The test to be appliedis one which is more than prima facie case which is applied at thetime of framing of charges – It will all depend upon the evidencewhich is tendered in given case as to whether there is strongground within the meaning of paragraph 105 of Hardeep Singhcase – Order of the Sessions Judge issuing summons, set aside –Sessions Judge to re-consider the matter in light of the principlesenunciated in Hardeep Singh case.

Allowing the appeal, the Court

HELD:1. While the Supreme Court has approved ofrelying upon deposition which has not suffered crossexamination for the purpose of invoking Section 319 Cr.P.C., itis relevant to note the standards which have been fixed by thisCourt for invoking the power under Section 319 Cr.P.C. The

DEF

Astatement of law in this regard is contained in paragraphs 105and 106 of Hardeep Singh case. [Para 7][222-E-F]

2.1. The respondents, no doubt, point out that thedeposition of the second respondent as given by her, wouldsuffice in law for the Court to invoke the power under SectionB319 Cr.P.C., however, the matter must be reconsidered.[Para 8][223-D]

2.2. The test as laid down by the Constitution Bench of thisCourt in Hardeep Singh case for invoking power under Section319 Cr.P.C. inter alia includes the principle that only when strongCand cogent evidence occurs against person from the evidence,the power under Section 319 Cr.P.C. should be exercised. Thepower cannot be exercised in casual and cavalier manner. Thetest to be applied, as laid down by this Court, is one which ismore than prima facie case which is applied at the time of framingDof charges. It will all depend upon the evidence which is tenderedin given case as to whether there is strong ground withinthe meaning of paragraph 105 of Hardeep Singh case. [Paras 10,11][223-E-G]

3. The order passed by the Sessions Judge issuingEsummons, is set aside. The Sessions Judge is directed toconsider the matter afresh in the light of the principles whichhave been clearly enunciated by this Court in Hardeep Singhcase. [Paras 12, 13][223-H; 224-A-B]

Hardeep Singh v. State of Punjab and Others (2014)F3 SCC 92 : [2014] 2 SCR 1 – followed.

Labhuji Amratji Thakor and Others v. State of Gujaratand Another AIR 2019 SC 734 : [2018] 13 SCR 822– referred to.

GCase Law Reference

[2014] 2 SCR 1followed[2018] 13 SCR 822

Para 6

referred to

Para 6

CRIMINAL APPELLATE JURISDICTION : Criminal AppealHNo. 990 of 2021.

From the Judgment and Order dated 09.01.2020 passed by theHon’ble High Court of Judicature at Allahabad, Lucknow Bench,Lucknow in Criminal Misc. Case under section 482/378/407 bearingno. 93 of 2020.

Gaurav Srivastava, Adv. for the Appellant.

Adarsh Upadhyay, Abhishek Chaudhary, Sansriti Pathak, Advs.for the Respondents.

The Judgment of the Cour was delivered by

K. M. JOSEPH, J.

1. Leave granted.

2. This is yet another case where summons issued purporting toinvoke power under Section 319 of the Code of Criminal Procedure(Cr.P.C.) has brought the newly summoned person to this Court.

3. FIR came to be lodged on 27.06.2015 by the second respondentbefore us. It is inter alia alleged in the FIR that her husband(deceased)told her that he is leaving for work to meet the appellant. There is, infact, no dispute that the deceased was the driver of the appellant. Inthe FIR, it is also stated that at 2 p.m., he called and informed thesecond respondent-his wife that he is going to Gola and shall return byevening. It is thereafter her case that her husband’s phone was switchedoff and an unidentified dead body was found. The second respondentreported that the murder of her husband was committed by his employer(the appellant before us) with the help of his friends. The statementcame to be recorded from her on 27.06.2015. She also gave anadditional statement. Thereafter, the police investigated the matter andchargesheet was filed against three persons. Thereafter, the secondrespondent deposed:

4. In her evidence, she has inter alia deposed that, on23.06.2015, her husband left home at around 7-8 in the morning tellingher that his car owner had called him immediately. On the same dayher husband called her around 2 p.m. on her mobile phone and told herthat he was going to Gola with the appellant and that he will return byevening. She also deposed that when she called the appellant, he toldher that the car was found near the Government tubewell near Laguchaand that slippers of her husband were lying in that car. She has alsostated that she and her family are convinced that her husband was

Amurdered by the appellant with the help of his friends. She further statedthat she is fully confident that her husband was murdered by theappellant. This statement was made on 05.08.2017. On the very sameday, an application was filed on behalf of the prosecution invokingSection 319 Cr.P.C. The Sessions Judge, Khiri, by order dated11.09.2018, took the view that the power under Section 319 Cr.P.C.Bhas to be invoked and ordered to summon the appellant. This order cameto be unsuccessfully challenged before the High Court. It is thus, theappellant is before us.

5. We have heard Mr. Gaurav Srivastava, learned counsel forthe appellant, Mr. Adarsh Upadhyay, learned counsel for the firstCrespondent-State and Ms. Sansriti Pathak, learned counsel for thesecond respondent.

6. Learned counsel for the appellant would point out that thecourts have erred in law in invoking power under Section 319 Cr.P.C.solely based on the deposition as already noted by us, given by theDsecond respondent. The appellant has relied on the judgments of thisCourt rendered in Hardeep Singh v. State of Punjab and Others(2014) 3 SCC 92 and Labhuji Amratji Thakor and Others v. Stateof Gujarat and Another AIR 2019 SC 734.

7. While this Court has approved of relying upon deposition whichEhas not suffered cross examination for the purpose of invoking Section319 Cr.P.C., it is relevant to note the standards which have been fixedby this Court for invoking the power under Section 319 Cr.P.C. Thestatement of law in this regard is contained in paragraphs 105 and 106of Hardeep Singh (supra):F

105. Power under Section 319 Cr.P.C. is discretionary and anextraordinary power. It is to be exercised sparingly and only inthose cases where the circumstances of the case so warrant. Itis not to be exercised because the Magistrate or the SessionsJudge is of the opinion that some other person may also be guiltyGof committing that offence. Only where strong and cogentevidence occurs against person from the evidence led beforethe court that such power should be exercised and not in casualand cavalier manner.

106. Thus, we hold that though only prima facie case is to beHestablished from the evidence led before the court, not necessarily

tested on the anvil of cross-examination, it requires much strongerevidence than mere probability of his complicity. The test thathas to be applied is one which is more than prima facie case asexercised at the time of framing of charge, but short ofsatisfaction to an extent that the evidence, if goes unrebutted,would lead to conviction. In the absence of such satisfaction, thecourt should refrain from exercising power under Section 319Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘itappears from the evidence that any person not being the accusedhas committed any offence’ is clear from the words “for whichsuch person could be tried together with the accused.” The wordsused are not ‘for which such person could be convicted’. Thereis, therefore, no scope for the court acting under Section 319Cr.P.C. to form any opinion as to the guilt of the accused.”

8. After hearing learned counsel for the respondents, who, nodoubt, point out that the deposition of the second respondent as givenby her, would suffice in law for the Court to invoke the power underSection 319 Cr.P.C., we are of the view that the matter must bereconsidered.

9. We say this for the following reason:

10. The test as laid down by the Constitution Bench of this Courtfor invoking power under Section 319 Cr.P.C. inter alia includes theprinciple that only when strong and cogent evidence occurs against aperson from the evidence the power under Section 319 Cr.P.C. shouldbe exercised. The power cannot be exercised in casual and cavaliermanner. The test to be applied, as laid down by this Court, is one whichis more than prima facie case which is applied at the time of framingof charges.

11. It will all depend upon the evidence which is tendered in agiven case as to whether there is strong ground within the meaningof paragraph 105.

12. We are of the view that from the facts of this case, it becomesnecessary for us to direct the Sessions Judge, Khiri, to consider thematter afresh in the light of the principles which have been clearlyenunciated by this Court.

13. The appeal is accordingly, allowed. The impugned judgmentwill stand set aside and we also set aside the order passed by the

Alearned Sessions Judge issuing summons. The Sessions Judge, Khiri,will apply his mind in the light of the principles which have been laiddown by the Constitution Bench.

14. The Sessions Judge, Khiri, will call this case on 30.09.2021.The parties will be present on the said day.

Thereafter the Court will pass appropriate orders bearing in mindthe principles which have been laid down by this Court in HardeepSingh (supra). The appeal is allowed as above.

Bibhuti Bhushan BoseC

Appeal allowed