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"It is the opinion of the Court and not the Investigating Officer which is determinative. Evidence and deposition in the court of law, are relevant for the purpose of Section 319 of the Code.", remarked the Supreme Court on Monday.

These observations were made by a bench of Justices Sanjiv Khanna and Bela M Trivedi while hearing an appeal filed against the High Court's decision to set aside the summoning order passed by the court below.

It was found that the Additional District Judge, Hardoi, Uttar Pradesh was justified and correct in allowing the application filed under Section 319 of the Code of Criminal Procedure, 1973, thereby summoning one Satya Pal Singh for trial.

The bench was of the opinion that the Additional District Judge, had duly and rightly applied the law and noticed the evidence that has come on record.

It was further held that the High Court in the impugned order did not consider the evidence in the form of deposition recorded by the trial court, albeit observed that the order should not have been passed merely on the statements of the complainant(s) or those witnesses who had given the statements under Section 161 of the Code, which the Investigating Officer did not find credible and cogent.

Taking a different view than that of the High Court, the bench said,

"The Investigating Officer had relied on call record details, which in our opinion, would be the aspect that has to be considered in light of the testimony of prosecution witness PW-2 (Basant). Call record details would indicate location of the phone at a particular time, but not necessarily indicate the person in possession of the phone instrument."

With this view, the court went on to allow the appeal and restore the summoning order passed by the Additional District Judge.

Cause Title: ANIL KUMAR TIWARI v STATE OF UTTAR PRADESH & ANR.