Under challenge in the appeal was a summoning order dated 16 October, 2021 passed by the relevant Special Court under the 1989 Act, in exercise of power conferred on him by Section 319, Code of Criminal Procedure (hereafter, ‘Cr.
At this stage, the Special Court passed the order dated 16.10.2021 summoning the appellant for trial along with Dharmendra for punishable offences under Sections 323, 504 and 506, IPC and 3(1)(r) & (s) of the 1989 Act.
While PW-1 deposed that Dharmendra, his brother (i.e., the appellant) and an unknown person were travelling in a car when they stopped PW-1 and his family members whereafter the alleged incident of assault and abuse took place, PW-2 deposed that the accused persons (Dharmendra, the appellant and an unknown person) arrived at the place of occurrence riding two motorcycles.
It is to be found in the versions of PW-1 & PW-2 that since 2015, they personally knew the appellant; hence, not naming the appellant in the FIR and instead disclosing that the brother of Dharmendra too had involved himself in the alleged assault and abuse and taking the name of the appellant as a co-accused only in course of recording of evidence is a clear embellishment, which has been made with a view to harass the appellant by dragging him to face an unnecessary trial. PC by the Special Court is arbitrary and that the High Court erred in law as well as on facts in not interfering with such order in exercise of appellate jurisdiction.
Also Read: https://newslaw.in/supreme-court/appellant-convicted-for-culpable-homicide-not-amounting-to-murder/
Having bestowed due consideration to the rival claims, we are of the view that any expression of ours while dealing with each and every point urged on behalf of the appellant could result in prejudgment; and thereby hinder a fair trial hence, adopting a cautious approach, we propose to restrict our consideration solely to the question as to whether the evidence adduced by the complainant and his wife in course of recording of their depositions did justify the Special Court to make the order it did. PC, which envisages a discretionary power, empowers the court holding a trial to proceed against any person not shown or mentioned as an accused if it appears from the evidence that such person has committed a crime for which he ought to be tried together with the accused who is facing trial.
The FIR in this case is not such where one finds complete absence of any reference to the brother of Dharmendra who had joined Dharmendra in assaulting and abusing the complainant or that the allegations are entirely Dharmendra centric with none else playing any role.
We are satisfied, on facts and in the circumstances, that the Special Court formed the requisite satisfaction prior to summoning the appellant to face trial with Dharmendra.
Also Read: https://newslaw.in/supreme-court/ownership-dispute-commissioners-order-and-revenue-documents/
The same stands dismissed together with any other application, if any.
Case Title: JITENDRA NATH MISHRA Vs. STATE OF UTTAR PRADESH (2023 INSC 576)
Case Number: Crl.A. No.-000978-000978 / 2022
