Allahabad High Court
Lalta Prasad And 3 Ors vs State Of U.P. And Anr on 27 February, 2020
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 77 Case :- CRIMINAL REVISION No. - 800 of 2020 Revisionist :- Lalta Prasad And 3 Ors Opposite Party :- State Of U.P. And Anr Counsel for Revisionist :- Atharva Dixit,Aushim Luthra Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
Sri Suresh Dhar Dwivedi, Advocate has filed his Vakalatnama on behalf of opposite party no.2, which is taken on record.
Heard Sri Atharva Dixit, learned counsel for the revisionist, Sri Rabindra Kumar Singh, learned Additional Government Advocate assisted by Sri Rajmani Yadav, learned Brief Holder for the State/opposite party No.1, Sri Suresh Dhar Dwivedi, learned counsel appearing on behalf of opposite party no.2 and perused the record with the assistance of learned counsel for the parties.
This criminal revision under Section 397/401 Cr.P.C. has been filed by the revisionists with a prayer to quash the order dated 29.01.2020 passed by Additional Sessions Judge, Court No.3, Shahjahanpur in S.T. No. 205 of 2017 (State Vs. Anirudha Singh and others) arising out of case crime no. 0948 of 2016, under sections 302, 452, 148, 149, 120B IPC, Police Station Banda, District Shahjahanpur, whereby application (paper no. 43 ka) under Section 319 Cr.P.C. of the opposite party no.2 has been allowed and revisionists have been summoned to face trial under Sections 302, 452, 148/149, 120B IPC as an additional accused.
In short compass, the facts of the case are that on 11.10.2016 FIR was lodged by Roshan Lal against Aniruddha Kumar, Ashok Kumar (applicant no.3), Abhimanyu (applicant no.2), Lalta Prasad (applicant no.1), Bhimsen and Rajeev Gangwar (applicant no.4), under Sections 147, 148, 149, 302, 452/120B IPC with regard to murder of his brother making allegation inter-alia that on 11.10.2016 at about 1.45 PM his brother Dev Narayan was reading newspaper in his house. All of sudden aforesaid accused persons armed with country made pistol, rivolver and rifle entered in his house and surrounded him. The accused Aniruddha on the exhortation of co-accused persons with intention to kill his brother opened fire at him, which hit to his chest, who died at the spot. In the FIR, informant (brother of deceased), Maya Devi (wife of deceased), Krishna Kumar and Harish have been shown as eye-witness of the incident. Statement under Section 161 Cr.P.C. of all the aforesaid eye-witnesses were recorded during investigation, in which they have reiterated the prosecution case as mentioned in the FIR. On 22.12.2016, third statement of informant was recorded, in which he has stated that Ram Chandra and Bal Govind have also seen the incident. Thereafter, statement of Ram Chandra and Bal Govind were recorded, in which they have stated that they have seen six persons, who were coming on three motor cycles. Out of them, they have identified two persons, namely Aniruddha Kumar and Bhimsen. The Investigating Officer in the statement of Ram Chandra has mentioned that he in reply to a query stated that he had not seen the accused Ashok, Abhimanyu, Lalta Prasad and Rajeev Kumar. The Investigating Officer after completion of investigation submitted charge-sheet no. 10 of 2016 dated 24.11.2016 against Aniruddha Kumar, Shailendra Kumar, Surjeet, Brahm Swaroop and Bagees and charge-sheet no. 10A of 2016 dated 22.12.2016 against co-accused Bhimsen. In the trial wife of deceased, namely Maya Devi, first informant, namely Roshan Lal and eye-witness Harish Kumar have been examined as PW-1, PW-2 and PW-3 respectively, in which they have made allegation against the present applicant reiterating the FIR version. Thereafter, upon testimonies of PW-1, PW-2 and PW-3, an application dated 11.11.2019 under Section 319 Cr.P.C. was moved by the opposite party no.2 for summoning the revisionists as an additional accused, which has been allowed by impugned order dated 29.01.2020 by the trial court summoning the revisionists to face trial. The said order dated 29.01.2020 is the subject matter of challenge in the present revision.
The relevant part of statements of PW-1, PW-2 and PW-3, which are against the present revisionists are reproduced herein below:-
ih0MCyw0&1 ek;k nsoh] tks e`rd nso ujk;u dh iRuh gS] ijhf{kr gq;h gSa] ftlus vius c;ku esa ;g dgk gS fd mlds ifr nso ujk;u o xkao ds vfu:} ls iz/kkuh dk pquko gqvk FkkA bl pquko esa mlds ifr nso ujk;u thrs Fks vkSj eqfYte vfu:} gkj x;s FksA bl iz/kkuh ds pquko dks ysdj mlds ifr vkSj vfu:} esas jaft'k gks x;h Fkh] igys jaft'k ugha FkhA vkt ls ikSus nks lky igys dh ckr gS ]dqWokj dk eghuk Fkk] X;kjg rkjh[k Fkh] fnu ds yxHkx ikSu nks cts dk le; FkkA mlds ifr nso ujk;u ml le; cSBd esa v[ckj Ik< jgs Fks] ml le; og vius ifr ds lkFk cSBh gq;h Fkh vkSj mlds nsoj jks'ku yky Hkh cSBs gq, Fks] brus esa vfu:} reapk ysdj vkSj Hkhelsu jk;Qy ysdj vk;s] buds lkFk v'kksd] vfHkeU;q]ykyrk izlkn vkSj jktho Fks] bu yksxksa ds ikl Hkh fjokYoj o reaps Fks dgk fd lkys rq>s iz/kkuh pkfg, vkSj mu yksxksa us dgk ekj nks lkys dks] rHkh vfu:} us mlds ifr nso ujk;u dks reaps ls xksyh ekj nhA xksyh ekjus ls mlds ifr dks pksV vk;h] mlus 'kksj epk;k] rks d`".k dqekj gjh'k dqekj vk x;s vkSj mUgksus Qk;j gksrs ns[kk] eqfYteku vfu:} vkSj lHkh eqfYteku ?kj ls fudys] mlus xkMh eaxokbZ mlds nsoj xkMh yk;s] fQj c.Mk vLirky ys x;s] ogka ij MkWDVj us crk;k fd ;g [kRe gks x;sA mlds nsoj jks'ku yky us fjiksVZ fy[kk;hA ih0MCyw0&2 jks'ku yky] tks oknh eqdnek gS] }kjk Hkh eq[; ijh{kk esa vfHk;kstu dFkkud ,oa ih0MCyw&1 ds c;kuksa dk leFkZu djrs gq, vfu:} ,oa mlds HkkbZ nso ujk;u dh iz/kkuh dh jaft'k crkrs gq, c;ku essa dgk gS fd ?kVuk fnukad 11-10-2016 le; ikSus nks cts fnu dh gS] mlds HkkbZ nso ujk;u cSBd esa dqlhZ ij cSBs v[ckj i< jgs Fks] og o mldh HkkHkh ek;k nsoh cSBd esa ekStwn Fks] rHkh eqfYteku vfu:} dqekj] Hkhelsu] vfHkeU;q] v'kksd] ykyrk izlkn jktho xaxokj mlds HkkbZ dh cSBd esa vk;s vkSj mlds HkkbZ nso ujk;u dks ?ksj fy;k bu eqfYteku ds gkFkksa esa jk;Qy] fjokYoj o reaps Fks vfu:} ds ikl reapk ] jktho ds ikl fjokYoj] Hkhelsu ds ikl jk;Qy vfkn FkhA eqfYteu us nso ujk;u dks ?ksj dj dgk fd blh dks gj ckj iz/kkuh pkfg;s] ekj nks lkys dks xksyh] rHkh vfu:} dqekj us mlds HkkbZ ds lhus esa reaps ls Qk;j ekj fn;k Fkk] rc mlus o mldh HkkHkh us 'kksj epk;k] rHkh eqfYteku Qk;j djrs gq, ckgj Hkkx x;sA ih0MCyw0&3 gjh'k dqekj us Hkh vius l'kiFk c;ku dh eq[; ijh{kk esa rgjhj ih0MCyw0&1 ,oa ih0MCyw0&2 }kjk fd;s x;s dFkuksa dk leFkZu djrs gq, c;ku fn;k gS fd tc og d`".k dqekj [skr ls vkrs le; nso ujk;u ds ?kj ds eafnj ds ikl frjkgs ij igqaps] rHkh Qk;j dh vkokt nso ukjk;u dh cSBd ls vk;h rFkk 'kksj gqvk] rHkh og o d`".k dqekj ogka igqaps] rHkh eqfYteku v'kksd dqekj] vfu:} vfHkeU;q] ykyrk izlkn] Hkhelsu] jktho tks xzke eksgn~nhuiqj ds gS] ckdh Hkoj[ksMk ds gSa] lHkh yksx cSBd ls ckgj fudys Fks ] og cSBd ds vUnj x;k] rks iz/kku th ds xksyh yxh gq;h FkhA iz/kku th ds HkkbZ vkSj mudh iRuh ekSds ij FkhaA nso ujk;u dks vLirky ys x;s Fks vkSj mudh e`R;q gks x;h FkhA Assailing the impugned order dated 29.01.2020, the main substratum of argument of learned counsel for the revisionists is that merely on the basis of statements of PW-1, PW-2 and PW-3, revisionists cannot be summoned as an additional accused to face trial unless entire prosecution witnesses are examined.
It is next submitted that in the FIR as well as in the statement of PW-1 and PW-2, the main allegation of FIR of causing injury to deceased has been assigned to co-accused Aniruddha. Eye-witness Ram Chandra in his statement under Section 161 Cr.P.C. had stated that he had not seen the revisionists. It is also submitted that the revisionists have been falsely implicated in this case. They were not present at the spot on the date and time as alleged by the prosecution. It is also submitted that the evidence, which has come on record against the revisionists is not much more than prima facie, therefore, summoning the revisionists under Section 319 Cr.P.C. as an additional accused to face trial is not justified and is liable to be quashed.
Per contra, learned Additional Government Advocate appearing on behalf of the State of U.P. and learned counsel appearing on behalf of opposite party no.2 submitted that in the present case informant (brother of deceased) and Maya Devi (wife of the deceased) are the eye-witness of the incident. The revisionists are named in the FIR. Informant and Smt. Maya Devi in their statements under Section 161 Cr.P.C. have supported the prosecution case reiterating the averment as mentioned in the FIR. Krishna Kumar and Harish are also eye-witness, who have seen the accused persons, when they came out from the house in question after committing murder of deceased. Krishna Kumar and Harish in their statement under Section 161 Cr.P.C. have also supported the prosecution case. In the trial PW-1, PW-2 and PW-3 have given consistent evidence against the revisionists regarding their active participation and role in the murder of deceased Dev Narayan, which is much more than prima facie evidence against the revisionists. It is broad day light murder, which took place at about 1.45 PM, in which brother and wife of the deceased are eye-witness, therefore, it is not expected from them that they will depose wrong facts and frame false case against the revisionists leaving the real culprits to scot free. It is also contended that the revisionists have been summoned after cross-examination of PW-1, PW-2 and PW-3 is over, therefore, there is no illegality in the impugned order dated 29.01.2020 and revision is liable to be dismissed.
Before adverting to the claim of the parties, it would be useful to quote Section 319 Cr.P.C.
"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 the perusal of Section 319 Cr.P.C., it is clear that it is the duty of the Court to see that no accused is left unpunished. Where the investigating agency for any reason does not array the real culprit as accused, the Court is empowered to call the said accused to face the trial.
The moot question involved in the present case is as to at which stage the power should be exercised in respect of a person named in the FIR, but not charge sheeted and what would be degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C.
These two questions have been specifically dealt with by the Constitution Bench of Hon'ble Supreme Court in case of Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92, wherein the Apex Court held as under:
"92. Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence"
The Court further held as under:
"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 aforesaid view as settled in case of Hardeep Singh (supra) has been further followed by the Apex Court in case of Rajesh and others Vs. State of Haryana (2019) 6 SCC 368.
The Division Bench of Hon'ble Supreme Court in Vikas Vs. State of Rajasthan (2014)3 SCC 321 has 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.
While dealing with the duty and power of the Court under Section 319 Cr.P.C., Hon'ble Supreme Court in Brijendra Singh and others Vs. State of Rajasthan, 2017(7) SCC 706 has held as under:
"It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C."
xx xx xx "The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence." It also goes without saying that Section 319 Cr.P.C., which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of Section 207/208 Cr.P.C., the committal etc., which is only a pre-trial stage intended to put the process into motion."
After having heard the argument the argument of learned counsel for the parties and perusing the impugned order dated 29.01.2020 in the light of law laid down by the Apex Court, I find that the trial court while allowing the application under Section 319 Cr.P.C. of the opposite party no.2 has taken into consideration the judgment of the Apex Court in case of Hardeep Singh (supra). I also find that statements of eye-witness, namely Roshan Lal (informant/brother of deceased/PW-1) and Smt. Maya Devi (wife of deceased/PW-2) are intact supporting the prosecution case. PW-3 Harish Kumar has also given statement about the presence of revisionists at the spot.
In view of above, it can safely be hold that the learned Sessions Judge while passing the impugned order dated 29.01.2020 was fully satisfied that there are strong and cogent evidence against the revisionists and has not passed the order in a casual manner.
Each case must be decided on its own facts and merit. Even one additional or different fact may make big difference between the conclusion in two cases, because even a single significant detail may alter entire aspect.
Considering the facts, materials on record as well as statements of PW-1, PW-2 and PW-3, as mentioned above, this Court is also of the view that the evidence, which has come on record against the revisionists are much more than prima facie and are sufficient to proceed against the revisionists in exercise of power under Section 319 Cr.P.C.
In view of what has been indicated herein above, I do not find any illegality or irregularity in the order dated 29.01.2020 passed by Additional Sessions Judge, Court No. 03, Sahjahanpur summoning the revisionists under Section 319 Cr.P.C. to face the trial under Sections 302, 452, 148/149, 120B IPC.
The instant criminal revision under Section 397/401 Cr.P.C. lacks merit and is accordingly, dismissed.
Order Date :- 27.2.2020 AK Pandey