SMT. SANTOSH Vs. STATE OF UTTARAKHAND & ANOTHER

JUDGEMENT

(1.) At the outset, it is pertinent to mention that Smt. Usha, private respondent has been served personally, all the same, none has turned up on her behalf. Hence, this Court rendered hearing to learned Counsel for the applicant and learned AGA for the State. Also perused the papers on record.

(2.) Applicant Smt. Santosh has been summoned as an accused under Sec. 319 Crimial P.C. vide impugned order dated 17.9.2007 passed by the Chief Judicial Magistrate, Haridwar in Criminal Case No. 4975/2004, State Vs. Smt. Vimala, under Sec. 420, 323, 504, 506 IPC. Initially an FIR was lodged by Smt. Usha against Smt. Santosh, Smt. Vimla and Virju. Investigation Officer after completion of the investigation did not find any evidence against Smt. Santosh and Virju. Accordingly, the chargesheet was filed only against Smt. Vimla. Thereafter trial proceeded. Informant Smt. Usha was examined as PW1. In her examination-in-chief, she named the present applicant Smt. Santosh as the perpetrator of the crime. So, the court below summoned the applicant under Sec. 319 CrPC.

(3.) Learned Counsel for the applicant submitted that only the examination-in-chief of PW1 Smt. Usha has been recorded and she is yet to be cross-examined. Learned Counsel argued that the court below has erred in summoning the applicant under Sec. 319 Crimial P.C. just after the examination-in-chief of PW1 Smt. Usha. In support of his contention, he has relied upon a verdict of Honourable Apex Court rendered in Mohd. Safi Vs. Mod. Rafiq & Anr., reported in 2007 AIR 1899 SC, wherein it has been held that before exercising its discretionary jurisdiction in terms of Sec. 319 CrPC, the court must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at, inter alia, upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. This way judgment of the High Court affirming the order of cognizance was set aside.