Leave granted.
This is yet another case where summons issued
purporting to invoke power under Section 319 of the Code of
Criminal Procedure (Cr.P.C.) has brought the newly summoned
person to this Court.
FIR came to be lodged on 27.06.2015 by the second
respondent before 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, in fact, no dispute
Digitally signed by that the deceased was the driver of the appellant. In theNidhi Ahuja
FIR, it is also stated that at 2 p.m., he called and
informed the second respondent-his wife that he is going to
Gola and shall return by evening. It is thereafter her case
that her husband’s phone was switched off and an
unidentified dead body was found. The second respondent
reported that the murder of her husband was committed by his
employer (the appellant before us) with the help of his
friends. The statement came to be recorded from her on
27.06.2015. She also gave an additional statement.
Thereafter, the police investigated the matter and
chargesheet was filed against three persons. Thereafter,
the second respondent deposed:
In her evidence, she has inter alia deposed that, on
23.06.2015, her husband left home at around 7-8 in the
morning telling her that his car owner had called him
immediately. On the same day her husband called her around
2 p.m. on her mobile phone and told her that he was going to
Gola with the appellant and that he will return by evening.
She also deposed that when she called the appellant, he told
her that the car was found near the Government tubewell near
Lagucha and that slippers of her husband were lying in that
car. She has also stated that she and her family are
convinced that her husband was murdered by the appellant
with the help of his friends. She further stated that she
is fully confident that her husband was murdered by the
appellant. This statement was made on 05.08.2017. On the
very same day, an application was filed on behalf of the
prosecution invoking Section 319 Cr.P.C. The Sessions
Judge, Khiri, by order dated 11.09.2018, took the view that
the power under Section 319 Cr.P.C. has to be invoked and
ordered to summon the appellant. This order came to be
unsuccessfully challenged before the High Court. It is
thus, the appellant is before us.
We have heard Mr. Gaurav Srivastava, learned counsel
for the appellant, Mr. Adarsh Upadhyay, learned counsel for
the first respondent-State and Ms. Sansriti Pathak, learned
counsel for the second respondent.
Learned counsel for the appellant would point out that
the courts 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 the second respondent. The appellant has
relied on the judgments of this Court rendered in Hardeep
Singh v. State of Punjab and Others (2014) 3 SCC 92 and
Labhuji Amratji Thakor and Others v. State of Gujarat and
Another AIR 2019 SC 734.
While this Court has approved of relying upon
deposition which has not suffered cross examination for the
purpose of invoking Section 319 Cr.P.C., it is relevant to
note the standards which have been fixed by this Court for
invoking the power under Section 319 Cr.P.C. The statement
of law in this regard is contained in paragraphs 105 and 106
of Hardeep Singh (supra):
105. Power under Section 319 Cr.P.C. 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 should refrain from exercising power under
Section 319 Cr.P.C. In Section 319 Cr.P.C. the
purpose of providing if ‘it appears from the evidence
that any person not being the accused has committed
any offence’ is clear from the words “for which such
person could be tried together with the accused.” The
words used are not ‘for which such person could be
convicted’. There is, therefore, no scope for the
court acting under Section 319 Cr.P.C. to form any
opinion as to the guilt of the accused.”
After hearing learned counsel for the respondents,
who, no doubt, point out that the deposition of the second
respondent as given by her, would suffice in law for the
Court to invoke the power under Section 319 Cr.P.C., we are
of the view that the matter must be reconsidered.
We say this for the following reason:
The test as laid down by the Constitution Bench of
this Court for invoking power under Section 319 Cr.P.C.
inter alia includes the principle that only when strong and
cogent evidence occurs against a person from the evidence
the power under Section 319 Cr.P.C. should be exercised.
The power cannot be exercised in a casual and cavalier
manner. The test to be applied, as laid down by this Court,
is one which is more than prima facie case which is applied
at the time of framing of charges.
It will all depend upon the evidence which is tendered
in a given case as to whether there is a strong ground
within the meaning of paragraph 105.
We are of the view that from the facts of this case,
it becomes necessary for us to direct the Sessions Judge,
Khiri, to consider the matter afresh in the light of the
principles which have been clearly enunciated by this Court.
The appeal is accordingly, allowed. The impugned
judgment will stand set aside and we also set aside the
order passed by the learned Sessions Judge issuing summons.
The Sessions Judge, Khiri, will apply his mind in the light
of the principles which have been laid down by the
Constitution Bench.
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
mind the principles which have been laid down by this Court
in Hardeep Singh (supra). The appeal is allowed as above.
New Delhi; September 13,2021.