Allahabad High Court
Pehalwan Shukla vs Special Judge S.C.S.T. Act Gonda on 27 October, 2017
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A. F. R. Reserved on 04.10.2017 Delivered on 27.10.2017 Court No. - 28 Case :- U/S 482/378/407 No. - 18 of 2009. Applicant :- Pehalwan Shukla Opposite Party :- Special Judge S.C.S.T. Act Gonda Counsel for Applicant :- G.P. Misra Counsel for Opposite Party :- Govt. Advocate,K.N.Mishra Hon'ble Abdul Moin, J.
Heard learned counsel for the petitioner, learned Additional Government Advocate for the State and Sri K.N. Mishra, learned counsel appearing for respondent no. 2 and perused the material available on record.
The present petition has been filed by the petitioner under Section 482 Cr.P.C inter-alia praying for quashing of the order dated 28th August, 2008, passed by the learned Special Judge (SC ST Act), Gonda in Special Sessions Trial No. 73 of 2003 - (State Vs. Gopi Nath & Ors), in-re Criminal Case No. 120 of 1999, under Sections 419, 420, 467, 468, 447 I.P.C and Section 3 (1) (5) SC ST Act, Police Station - Kotwali Dehat, District - Gonda, by which the learned Trial Court, after considering the evidence on record has directed for summoning of the petitioner - Pehalwan Shukla, under the provisions of Section 319 Cr.P.C and fixed the matter on 11.09.2008. In the said case, the other accused are Gopi Nath Ojha, Prem Nath Ojha and Swami Nath Ojha, all sons of Ganesh Dutt.
This Court vide order dated 07.01.2009 stayed the proceedings of the Sessions Trial No. 73 of 2003 - (State Vs. Gopi Nath & Ors) qua the petitioner. The said stay order is still continuing.
The case set up by the petitioner is that there is a disputed land of Khata No. 63 which was recorded in the name of the father of the other accused persons, namely, Gopi Nath, Prem Nath and Swami Nath all sons of Ganesh Dutt Ojha and one Chhandu. After the death of Ganesh Dutt Ojha and Chhandu, the accused persons namely Gopi Nath Ojha, Prem Nath Ojha and Swami Nath Ojha sons of Ganesh Dutt Ojha filed a Case No. 863 before the Consolidation Officer, Belsar, District - Gonda, who passed an order dated 25.11.1997 and the names of the accused persons Gopi Nath Ojha, Prem Nath Ojha and Swami Nath Ojha were directed to be mutated in place of Ganesh Dutt Ojha and Chhandu. In compliance of the said order, the petitioner, who alleges himself to have been posted as Halqa Lekhpal in the year 1997 made the Amaldaramad on 28.11.1997 in the Revenue Records. Against the said order dated 25.11.1997, the opposite party no. 2 in the present petition/application namely Shiv Prasad filed a restoration application and the said order dated 25.11.1997, was stayed on 16.12.1997 by the Consolidation Officer and again the petitioner himself, in compliance of the said order made amaldaramad in the Revenue Records.
Subsequently, the said stay application and a restoration application that had been filed by the opposite party no. 2 in the Court of Consolidation Officer came to be dismissed in absentia and the said order was vacated and the previous order dated 25.11.1997 was confirmed by the Consolidation Officer, Belsar, District - Gonda on 22.08.1998. This time, the subsequent Chakbandi Lekhpal, Sri Sanjai Kumar Srivastava, made the Amaldaramad. Thereafter again, the opposite party no. 2 is alleged to have filed a recall application of the order dated 22.08.1998 which came to be stayed and again the Amaldaramad was made in the Revenue Record by the concerned - Lekhpal and since then the matter is sub-judice.
The petitioner alleges that the entire issue started when the opposite party no. 2 lodged an F.I.R, which was registered as Case Crime No. 120 of 1999, under Sections 419, 420, 467, 468, 447 I.P.C and Section 3 (1) (5) SC ST Act at Police Station - Kotwali Dehat, District - Gonda, against four named persons namely Gopi Nath Ojha, Prem Nath Ojha, Swami Nath Ojha and the petitioner - Pehalwan Shukla on 13.04.1999.
After investigation, the Investigating Officer submitted Charge-Sheet on 08.06.1999, against the three persons namely Gopi Nath Ojha, Prem Nath Ojha and Swami Nath Ojha.
The petitioner further alleges that during the investigation, the police had requested for permission to arrest and launch prosecution against the petitioner vide letter dated 19.05.1999 from the District Magistrate, Gonda and in pursuance to which the Settlement Officer Consolidation (S.O.C), submitted his report dated 11.06.1999 mentioning that the petitioner had not committed any offence in the matter and that the petitioner had made Amaldaramad of the order passed by the Consolidation Officer, Belsar, District - Gonda, in good faith reiterating that the petitioner had acted in discharge of his official duties and that no criminal case was made out against him. The copy of the said letter dated 11.06.1999 is on record as Annexure No. 4 to the petition.
Thereafter Case No. 73 of 2003 in-re State Vs. Gopi Nath Ojha and others was proceeded against the other three accused persons namely Gopi Nath Ojha, Prem Nath Ojha and Swami Nath Ojha, when during the proceedings, the statement of one of the witnesses namely Shiv Prasad was recorded on 19.03.2007, in which he stated that at the time when the said entries were made, the petitioner - Pehalwan Shukla was the Lekhpal and he was residing with the accused in their home itself. It was also stated that Pehalwan Shukla had full information that the accused persons belonged to Brahmin Caste while the Caste of the other persons was of Jhadu, which is Kori caste and the petitioner in collusion with the accused, despite knowing all the facts, had connived for making the entries in the records.
Later, an Application No. 21 (Kha), was moved by the prosecution side under Section 319 of the Cr.P.C for summoning the petitioner - Pehalwan Shukla in the pending proceedings namely in Special Session Trial No. 73 of 2003 - (State Vs. Gopi Nath and Ors.).
The learned Court below after perusing the said application and hearing the learned Additional District Government Counsel and after perusal of the records and taking into consideration the statement of Shiv Prasad arrived at a conclusion on the basis of evidence on record that the petitioner namely Chakbandi Lekhpal Pehalwan Shukla had sufficient material against him for being proceeded under the provisions of Sections 419, 420, 467, 468, 447 I.P.C and Section 3 (1) (5) of SC&ST Act and accordingly passed the order dated 28.08.2008 for summoning the petitioner on 11.09.2008.
As already indicated above the said order came to be challenged by means of the present petition and the stay order dated 07.01.2009 was passed by this Court.
While challenging the said order dated 28.08.2008, the learned counsel for the petitioner vehemently urged that once during the course of investigation no criminal offence was made out against the petitioner by the Investigating Officer of the case and the Charge-Sheet had also been submitted against the three persons excluding the petitioner as also the fact that the Settlement Officer Consolidation while submitting his report had declined to give the department's consent for launch of prosecution against the petitioner vide letter dated 11.06.1999, all went to prove that the petitioner had acted strictly in the discharge of his official duty and accordingly the learned Sessions Court was in error while issuing the order dated 28.08.2008, for summoning the petitioner and for proceeding against him.
On the other hand Sri K.N. Mishra, learned counsel for opposite party no. 2 contended that he did not wish to file counter affidavit as the facts were not in dispute rather he only wanted to argue the matter on the question of law pertaining to the order dated 28.08.2008 passed by the learned Sessions Court for summoning the petitioner.
According to the learned counsel for the opposite party no. 2, the provisions of Section 319 Cr. P. C are clear and unambiguous and leave the discretion of summoning of a person to the concerned court where in the course of trial it appears from the evidence that any person not being an accused has committed any offence for which such person could be tried together with the accused and accordingly the court may proceed against such person for the offences, which he appears to have committed. Thus, it is contended by the learned counsel for the opposite party no. 2 that the learned Court below having considered the evidence i.e. the statement of Sri Shiv Prasad dated 19.03.2007 and having found a prima-facie involvement of the petitioner has correctly passed the order impugned dated 28.08.2008 and accordingly the writ petition deserves to be dismissed.
I have heard the learned counsel for the parties and perused the record.
At the outset it would be convenient to reproduce Section 319 of the Code of Criminal Procedure 1973, under which the order dated 28.08.2008 has been passed by the Sessions Court. Section 319 of Cr.P.C, reads as under :-
319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
From perusal of the aforesaid provisions, it is apparent that where in the course of any trial of an offence, it appears from the evidence that any person not being an accused has committed any offence for which such person could be tried together with the accused,then the Court may proceed against such person for the offence which he appears to have committed.
Such sine-qua-non for proceeding under Section 319 of Cr.P.C would be the consideration of the evidence during the trial which could lead to the court come to a conclusion that a person not being an accused has committed an offence, which entails such person to be tried together with the accused. From this it is also clearly comes out that the person against whom the court is intending to proceed, may not be the accused, but his involvement or his committing of an offence which comes out from the evidence would be sufficient in itself for the court to proceed against the such person.
What would form the ''evidence' to be considered by the Court is also relevant as per the word "evidence" as used in Section 319 Cr.P.C.
For this the Court can take the help of Section 3 of the "Indian Evidence Act, 1872", wherein "evidence" has been defined as follows:-
" "Evidence" .-- " Evidence" means and includes--
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence. "Proved" .--A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved". -- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. " Not proved". -- A fact is said not to be proved when it is neither proved nor disproved. 7 [" India ". --" India " means the territory of India excluding the State of Jammu and Kashmir .] 8 [the expressions "Certifying Authority", 9 [electronic signature], 9 [Electronic Signature Certificate], "electronic form", "electronic records", "information", "secure electronic record", "secure digital signature" and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).]"
The word "evidence" came up for consideration before the Hon'ble Supreme Court in the case of Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri and another 2011 (2) SCC 532, wherein the Hon'ble Supreme Court held as under :-
The word `evidence' is used in common parlance in three different senses : (a) as equivalent to relevant (b) as equivalent to proof and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word "evidence" given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as : best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc. Similarly, the Hon'ble Supreme Court in the case of Lok Ram Vs. Nihal Singh and another (2006) 10 SCC 192, held as under:-
"It is further evident that such person, even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence".
The issue has also been elaborately dealt with in the judgment of the Hon'ble Supreme Court in the case of Raj Kishore Prasad Vs. State of Bihar (1996) 4 SCC 495, wherein the Hon'ble Supreme Court after considering its earlier judgement in the case of Kishun Singh And Ors vs State Of Bihar, 1993 (2) SCC 16 held that Section (1) of Section 319 contemplates existence of some evidence appearing in the course of trial where from the Court can prima-facie conclude that the person not arraigned before it is involved in the commission of the crime, for which he can be tried with those already named by the Police and even a person who has earlier been discharged was spelt out to fall within the sweep of the power conferred by Section 319 of the Code.
Thus when the statement of the witness - Shiv Prasad is tested on the touch stone of the law laid down by the Hon'ble Supreme Court as indicated above, it clearly comes out that the said statement of Shiv Prasad was the ''evidence' which could validly be considered by the learned court below for summoning the petitioner.
Thus from a perusal of the records, it is clear that the learned court below has considered the evidence, which is the statement of the witness - Sri Shiv Prasad, who has stated before the Court, of the petitioner - Pehalwan Shukla, being involved in the fraud and cheating and he being in connivance with the other accused and during the relevant time being a resident in the house of the other accused persons. Thus, when the proceedings of Section 319 Cr.P.C are seen in the light of said statement of the witness - Sri Shiv Prasad, it clearly comes out that in the course of trial, the learned court below considered the evidence of Shiv Prasad (dated 19.03.2007), from which the court found that it was an evidence from which it could be said that the petitioner Pehalwan Shukla appeared to have committed an offence, which would entail Pehalwan Shukla to be tried together with the other accused.
Section 319 Cr.P.C came up for consideration before a Constitution Bench of the Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 Supreme Court Cases 92. The Hon'ble Supreme Court after considering the entire law on the subject proceeded to frame a question namely, Question (iv) as follows:
"Q. (iv) What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C."
and proceeded to hold as under:-
"93. Section 319(1) Cr.P.C. empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved". It imparts a lesser degree of probability than proof.
94. In Pyare Lal Bhargava v. The State of Rajasthan, AIR 1963 SC 1094, a four-Judge Bench of this Court was concerned with the meaning of the word ''appear'. The court held that the appropriate meaning of the word ''appears' is ''seems'. It imports a lesser degree of probability than proof. In Ram Singh & Ors. v. Ram Niwas & Anr., a two-Judge Bench of this Court was again required to examine the importance of the word ''appear' as appearing in the Section. The Court held that for the fulfillment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as an accused in the case.
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 Cr.P.C., 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.
96. In Rajendra Singh, the Court observed: (SCC p. 388, para 16) "16. Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of he Code or not."
((emphasis supplied)
97. In Mohd. Shafi, this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.
98. In Sarabjit Singh & Anr. v. State of Punjab, while explaining the scope of Section 319 Cr.P.C., a two-Judge Bench of this Court observed: (SCC pp. 54-55, paras 21-23) "21....For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
22.......Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied."
(Emphasis supplied)
99. In Brindaban Das & Ors. v. State of W.B., a two-Judge Bench of this Court took a similar view observing that: (SCC p. 335, para 25) "25. .... the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.
(emphasis supplied)"
Further the Hon'ble Supreme Court proceeded to hold that:-
"105. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary 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.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. 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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ''it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not ''for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."
The Hon'ble Supreme Court then answered the Question (iv), as framed by it as under:-
"117.5. 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 difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different."
From the perusal of the law laid down by the Hon'ble Supreme Court in Hardeep Singh (supra), I find that Section 319 Cr.P.C allows the Court to proceed against any person who is not an accused but it appears from evidence that such person has committed any offence for which such person could be tried together with the accused meaning thereby that a person whose name has been disclosed in the evidence before the Court; can be proceeded against under the provisions of Section 319 Cr.P.C.
The mere fact that in the charge-sheet submitted by the Investigating Officer, the involvement of the petitioner did not come out or the fact that department did not give its sanction for initiating the proceedings against the petitioner could not restrain the learned court below in exercising its power under Section 319 Cr.P.C to summon any person, in this case, the petitioner, despite not being the accused, for being tried together with the other accused on the basis of the evidence led by Shiv Prasad during trial.
Thus, keeping in view the aforesaid facts and circumstances as well as the law laid down by the Hon'ble Supreme Court in the case of Hardeep Singh (supra) and the fact that in the evidence before the learned Court below the commission of the offence by the petitioner came out, as such the learned Court below was perfectly justified in exercising the power being satisfied from the evidence during the course of trial of proceeding against the petitioner, even though he was not an accused, but being satisfied that the petitioner had committed an offence for which the petitioner could be tried together with the other accused. The said power having been exercised in strict consonance with Section 319 Cr.P.C and its interpretation given by the Hon'ble Supreme Court in the case of Hardeep Singh (supra) is thus held to be valid.
Keeping in view the aforesaid facts the instant petition lacks merit and is accordingly dismissed.
However, in the interest of justice and in the facts of the instant case where the trial has remained stayed against the petitioner since the last nine years, the Court below is directed to conclude the proceedings of the trial within a period of six months from the date of receipt of certified copy of this Judgment. The Registry of this Court is directed to send a certified copy of this judgment to the Court below within seven days.
Order Date :- 27.10.2017.
Vinod.
(Abdul Moin, J.)