HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 28 Case :- U/S 482/378/407 No. - 4352 of 2015 Applicant :- [ENTITY] Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- Govt. Advocate,[ENTITY],[ENTITY],[ENTITY] Hon'ble [ENTITY],J.
1. This Petition under [SECTION] [ACT] has been filed impugning the order dated 7.8.2015 passed by the Additional Sessions Judge, Court No.1, Sultanpur in [CASE NUMBER], under [SECTION] [ACT], whereby the petitioner has been summoned under [SECTION], [SECTION], [SECTION], and [SECTION] [ACT].
2. An FIR at [CASE NUMBER] was lodged naming the petitioner along with other accused. The investigating officer after investigation of the case, filed the charge sheet against [ENTITY], [ENTITY] and [ENTITY] and did not file charge sheet against the petitioner on the ground that at the time of incident he was posted as Deputy Chief Ticket Inspector, Sultanpur. On 27/28.3.2014 he was on duty at Sadbhavana Express (14007) and went to Delhi with the train. Thereafter, on 29.3.2014 he came back to Sultanpur by Train No.14016. The investigating officer took into consideration the attendance register, tickets issued by the petitioner on the way and the register maintained at Delhi when the train reached and on that basis, he found that the petitioner was in Delhi and was not present at the time of occurrence on the date of incident. The petitioner has been summoned only on the basis of the statement of the complainant and without adverting to the documentary evidence, which is the official record maintained during the course of business of the Railways.
3. The Supreme Court in the case of [PRECEDENT] after noticing the judgment of the Constitution Bench in the case of [ENTITY] v. State of Punjab (2014) 3 SCC 92 in paragraphs 12, 13 and 14 held as Under :-
"12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under [SECTION] [ACT] and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in [ENTITY] case [[ENTITY] v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and answered in the following manner: (SCC pp. 135 & 138, paras 95 & 105-106) "95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under [SECTION] [ACT], though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in [PRECEDENT] , held that on the [Ed.: The words between two asterisks have been emphasised in original.] objective satisfaction [Ed.: The words between two asterisks have been emphasised in original.] of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
105. Power under [SECTION] [ACT] 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] [ACT]. In [SECTION] [ACT] 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 " [Ed.: The words between two asterisks have been emphasised in original.] for which such person could be tried together with the accused [Ed.: The words between two asterisks have been emphasised in original.] ". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under [SECTION] [ACT] to form any opinion as to the guilt of the accused." (emphasis supplied)
13. In order to answer the question, some of the principles enunciated in [ENTITY] case [[ENTITY] v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] may be recapitulated: power under [SECTION] [ACT] can be exercised by the trial court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some "evidence" against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The "evidence" herein means the material that is brought before the court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the court to invoke the power under [SECTION] [ACT]. No doubt, such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under [SECTION] [ACT] and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 km. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under [SECTION] [ACT] to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that the appellants' plea of alibi was correct."
4. The evidence brought on record by way of the charge sheet, is also evidence and the trial court is duty bound to consider the evidence available with the charge sheet before summoning the additional accused under [SECTION] [ACT] If the plea of alibi clinchingly establishes the non-presence of the additional accused to be summoned at the time and place of occurrence, the trial court ought to have considered the evidence and then only taken the decision for summoning or non-summoning the additional accused under [SECTION] [ACT] In the present case, the investigating officer has categorically opined after taking into account the record maintained officially by the Railways that the petitioner was not present at the time and place of occurrence and, therefore, he did not file the charge sheet against him. However, the trial court in casual and cavalier manner ignored that evidence and only on the basis of the statement of the complainant recorded in the Court, has summoned the petitioner.
5. Considering the fact that the facts of the present case are identical to that of the case of [PRECEDENT] (supra), it would be appropriate to pass an order in the interest of justice setting aside the impugned order.
6. Thus, the petition is allowed and the impugned summoning order dated 7.8.2015 passed by the Additional sessions Judge, Court No.1, Sultanpur in [CASE NUMBER], under [SECTION] [ACT], whereby the petitioner has been summoned under [SECTION], [SECTION], [SECTION], and [SECTION] [ACT]. is hereby set aside.
( [ENTITY], J.) Order Date :- 29.4.2019 Rao/-