VIKASH KUMAR @ SHIVAM KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has challenged, in this application under Section 482 Cr.P.C., the summoning order dated 02.11.2017 passed in exercise of power under Section 319 Cr.P.C. by the learned 1st Additional Sessions Judge, Hilsa in Sessions Trial No. 393 of 2017 arising out of Nagar Nausa P.S. Case No. 07 of 2017, a case under Section 302/34 of the Indian Penal Code. The impugned order has been passed considering the material surfaced in the prosecution evidence of P.Ws. 1, 2 and 3. It is worth to be pointed out that the informant P.W. 4 was already examined and his evidence has not been considered while the impugned was passed.

(2.) The challenge is on the ground that the law has already been well settled by the Constitution Bench of the Hon'ble Supreme Court in Hardeep Singh Versus State of Punjab And Others reported in 2014(3)SCC 92 that the evidence led before the trial court requires much stronger evidence than mere probability of complicity of the accused summoned. 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.

(3.) Learned counsel has relied on the judgment in Shiv Prakash Mishra Versus State of Uttar Pradesh And Another reported in 2019(7)SCC 806 for his submission that in identical situation the Hon'ble Supreme Court did not interfere with the order of the trial Judge refusing to summon the accused under Section 319 Cr.P.C. or against dismissal of the criminal revision by the High Court against order of the trial Judge.