Allahabad High Court
Krishna vs State Of U.P. And Another on 12 April, 2022
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- CRIMINAL REVISION No. - 3693 of 2021 Revisionist :- Krishna Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Vijay Bahadur Shivhare,Ram Raj Prajapati,Sr. Advocate Counsel for Opposite Party :- G.A.,Anil Kumar Dubey,Chandra Bhan Dubey Hon'ble Shekhar Kumar Yadav,J.
Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Vijay Bahadur Shivhare, learned counsel for the revisionist, learned AGA for the State as well as Sri Chandra Bhan Dubey, learned counsel for the opposite party no.2.
This revision has been filed challenging the order dated 01.12.2021 passed by learned Additional District and Sessions Judge/F.T.C., Court No.2, Baghpat passed under Section 319 Cr.P.C. in S.T. No.488 of 2018 arising out of Case Crime No.174 of 2017 in which the learned trial court summoned the revisionist under Sections 147, 148, 149, 323, 504, 506, 307 IPC to face trial.
Brief facts of the present case are that on 22.05.2017, the informant was going along with his sister Kajal to the field and on the way, Bhim, Vipin, Krishna, Prakash, Satyaprakash @ Sattey, Firey and Ravi armed with lathi, danda and pistol were standing near the bridge. They stopped the informant and gave threaten. When the informant opposed, they started beating by lathi, danda and butt of the pistol and after instigation of Prakash, Vipin had opened fire, in which informant's sister had received fire arm injury on her leg. With regard to the said incident, an FIR was lodged on 22.05.2017 by the informant, Yogesh @ Kale against the aforesaid persons. The injured persons, namely, Yogesh and Kajal were medically examined on 22.05.2017. Thereafter, the Investigating Officer recorded the statement of the informant under Section 161 Cr.P.C. who has supported the prosecution case. Statement of other injured Kajal was also recorded who has taken names of all the accused persons.
After due investigation, the Investigating Officer has submitted charge-sheet in which the name of the present revisionist was excluded. Feeling aggrieved, the informant moved an application under Section 319 Cr.P.C. to the summon the revisioinst to face the trial. After going through the record, the trial court vide impugned order dated 01.12.2021 has allowed the application and summoned the present revisionist to face the trial along with other co-accused under Sections 147, 148, 149, 323, 504, 506, 307 IPC.
Learned Senior Counsel has submitted that the revisionist has falsely been implicated in the present case by the opposite party no.2 and at the day and time of the alleged incident, he was not present at the place of incident. He was about 100 Km. away from the place of alleged incident. In support of his submission, learned Senior Counsel has placed call details of the revisionist in which location of the revisionist was found 100 Km away from the place of incident. He has further submitted that number of villagers gave affidavits before the S.P., Baghpat mentioning therein that the revisionist was not present at the place of alleged incident. On the basis of the said affidavits, the Investigating Officer exonerated the name of the revisionist from the chargesheet. He has further submitted that after committal of the case, an application under Section 319 Cr.P.C. has been filed and thereafter the trial court summoned the revisionist vide order dated 01.12.2021. He has further submitted that the trial court has passed the impugned order without any evidence against the revisionist on record which is against the provision of law, hence, the same is liable to be set aside.
In support of his submissions, learned Senior Counsel has placed reliance upon the judgments in the case of Brijendra Singh and others Vs. State of Rajasthan [2017 7 SCC 706] wherein it was held as under:-
"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 kms. 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 161 Cr.P.C. 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 appellants plea of alibi was correct."
Learned counsel for the revisionist has also relied upon the judgment passed in the case of Hardeep Singh Vs. State of Punjab and others [(2014) 3 SCC 92].
Per contra, learned A.G.A. as well as learned counsel for opposite party no.2 have vehemently opposed the prayer for setting aside the impugned order dated 01.12.2021 and have submitted that the revisionist was named in the FIR and the injured persons have also stated in their statements that the revisionist was present at the place of incident. The injured persons, namely, Yogesh Kumar (P.W.-1) and Kajal (Kajal) in their statements have clearly stated that revisionist alongwith other co-accused persons armed with Lathi Danda, Pistol, assaulted them, as a result of which, they received injuries. Therefore, the impugned summoning order does not suffer from any illegality or infirmity. In support of the contention, learned counsel for the opposite party has relied upon a judgment of Hon'ble the Supreme Court in the case of Sartaj Singh Vs. State of Haryana & another [AIR 2021 SC 1513], I have considered the submission made by learned counsel for the revisionist and the provisions of Section 319 Cr.P.C. and have arrived at a conclusion that no interference is called for in the impugned order. The scope and ambit of Section 319 of the Code have been elucidated in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 by the Hon'ble Apex Court. It has been held that, all that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, the person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It has further been held that though under Section 319 (4) (b) Cr.P.C., the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge.
The trial court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned thus the court need not wait for the evidence of such witness to be tested by cross-examination. In case of Sartaj Singh (supra), Hon'ble the Apex Court held thus:-
"7. Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, we are of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant ? injured eye witness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the Court need not wait till his cross-examination. If on the basis of the examination-in-chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial. At this stage, it is required to be noted that right from the beginning the appellant herein ? injured eye witness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not chargesheeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not charge sheeted. In any case, in the examination-in-chief of the appellant injured eye witness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examination-in-chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein ? injured eye witness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the Court. Therefore, as such, the learned Trial Court was justified in directing to issue summons against the private respondents herein to face the trial."
The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge sheet is filed by police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C., Court has said that test are same as applicable for framing charge.
In view of the above conspectus, I find no merits in the instant revision. There is no illegality or perversity in the impugned order in question.
The revision fails and is hereby dismissed.
Order Date :- 12.4.2022 Vivek Kr.