Allahabad High Court
Ajay Singh And 6 Others vs State Of U.P. And Another on 15 July, 2022
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL REVISION No. - 2313 of 2022 Revisionist :- Ajay Singh And 6 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rahul Kumar Sharma Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the revisionists as well as learned A.G.A.
This revision is being filed by all the seven non-accused revisionists against the order impugned dated 15.04.2022 whereby learned Additional Sessions Judge/F.T.C.-I, Hathras while allowing the application no.11-Kha under section 319 Cr.P.C., summoned the seven non-accused revisionists to face trial under section 498A, 323, 506, 313 IPC arising out of case crime no.625 of 2013.
Interestingly, the FIR was got registered through 156(3) Cr.P.C. application. The lady Seema Devi lodged the present FIR mentioning therein that she got married with one Pramod Kumar on 12.03.2003 and thereafter, all the family members who are nine in numbers, even remote relationship, were roped in the present offence levelling omnibus and general allegations upon them. The next submission is that out of this wedlock, one son and daughter were born and after ten years of marriage, additional demand of dowry was made. On this account, she was physically assaulted and her still born child got aborted. Through 156(3) Cr.P.C. application, she has managed to register the FIR.
After lodging of the FIR, the police investigated in the matter and has recorded the statements of all the witnesses. Interestingly, in the majeed bayan recorded on 22.01.2014, she has completely somersaulted from her earlier stand and submitted that in order to take revenge from them, she has wrongly mentioned their names as accused persons. Not only this, Dr. Arun Kumar was also examined. He states in his statement under section 161 Cr.P.C. that he has examined the lady whereby she has not made a single complaint to him that she was subjected to any assault by the family members to get her aborted. After thrashing the entire material on record, police has submitted the charge sheet only against husband-Pramod Kumar and Ganga Devi-mother-in-law wayback on 22.01.2014 under sections 498A, 323, 506, 313 IPC. Since, the matter was triable by Sessions and consequently, the matter was committed to the court of Sessions for putting a person to face the trial. These prosecution witnesses were examined and thereafter, they moved the application under section 319 Cr.P.C. in application no.11-Kha for calling upon the non-accused persons to face the trial. This application was eventually allowed by the court on 15.04.2022 which is impugned in this revision.
I have perused the order impugned. Except the general and omnibus allegations with a particular motive and purpose, there is nothing on record to substantiate the allegations. Dr. Sundar Lal was also examined as PW-6 who in his testimony clearly indicates that she came to him with a complain that she is feeling weakness for which she administered certain medicines. She, at no stage, has ever made complaint that she was assaulted by the non-accused persons and got her fetus aborted. Moreover, in the impugned order too, learned Sessions Judge has not at all recorded his satisfaction that there are sufficient material to call upon to face the prosecution.
Learned counsel for the revisionist has relied upon the judgment of Hon'ble the Apex Court in the case of Brijendra Singh and others Vs. State of Rajasthan decided on 27.04.2017 in Crl. Appeal No. 763 of 2017, in which the Hon'ble Apex Court has held that:-
"Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material."
It is contended by the counsel that the learned trial judge has blissfully ignored all the relevant factors while forming the prima facie satisfaction to summon the revisionist in exercise of power under Section 319 Cr.P.C.
I have perused the order impugned and compared the same with the observation of Hon'ble Apex Court in the case of Brijendra Singh (Supra) and the Court too is in favour that all the material on record has to b taken into account while forming the prima facie opinion of the court concerned. Surprisingly the learned trial court has literally translated the story as narrated in the FIR and branded it as its satisfaction. This proposition is not at all acceptable.
Learned counsel for the revisionists in this regard has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C. :
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner."
Learned counsel for the revisionist has further drawn the attention of the Court to para-12 of the above judgement:
"12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused."
Learned counsel for the revisionists has further submitted that the revisionists even not named in the F.I.R. and after thorough investigation the police too has not included the name of the revisionists in the chargesheet, even then the learned trial court has summoned the revisionists exercising his power u/s 319 Cr.P.C. in a cavalier fashion and without having any cogent evidence against them. Learned counsel for the revisionists in this regard has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019, in which it has been held that :
"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."
I have perused the order impugned and I am of the considered opinion that the same is dehors of the law laid down by Hon'ble the Apex Court in the aforesaid judgment.
Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above), therefore, impugned order dated 15.04.2022 passed by learned Additional Sessions Judge/F.T.C.-I, Hathras is hereby set aside and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of three months positively from the date of production of certified copy of this order.
With the aforesaid observations, the present revision stands disposed off.
Order Date :- 15.7.2022 Sumit S