Allahabad High Court
Rinku Gaida Alias Manish Gupta And ... vs State Of U.P. And Another on 21 February, 2024
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:29595 RESERVED Court No. - 9 Case :- CRIMINAL REVISION No. - 4793 of 2023 Revisionist :- Rinku Gaida Alias Manish Gupta And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Amit Daga,G.S. Chauhan Counsel for Opposite Party :- G.A.,Deepak Dubey Hon'ble Vipin Chandra Dixit,J.
1. Heard Sri Amit Daga, learned counsel for the revisionists, learned A.G.A. for the State, Sri Deepak Dubey, learned counsel appearing on behalf of opposite party no. 2 and perused the record.
2. This criminal revision has been filed by the revisionists against the order dated 24.08.2023, passed by Sessions Judge, Jhansi in Sessions Trial No. 227 of 2018 (State of U.P. vs. Rajendra Gurjar and others), arising out of Case Crime No. 344 of 2018, under Sections 147, 148, 149, 302, 307, 506 I.P.C., Police Station Nawabad, District Jhansi by which the application filed by informant under Section 319 Cr.P.C. was allowed and the revisionists were summoned to face trial.
3. Brief facts of the case are that the informant opposite party no. 2 had lodged the first information report against 9 accused persons including revisionists with the allegations that on 21.07.2018 at about 01:30 P.M., the father of informant was coming from district court after attending the date of his case by Pajero Sport bearing no.UP-93/AN-6301. The vehicle was driven by Ravi Verma and security persons Jai Goshwami and Sunil Kushwaha were also accompanying with his father. When they reached near the temple, the accused persons who were armed with Katta and pistol had opened fire and his father and other persons who were travelling in the vehicle had received gun shot injuries. This incident was witnessed by informant, Ajay Sony, Gaurav Verms and Prateek Verma. The first information report was registered as Case Crime No. 344 of 2018, under Sections 147, 148, 149, 302, 307, 506 I.P.C. The Investigating Officer has recorded the statement of informant and other witnesses under Section 161 Cr.P.C. and all the witnesses of prosecution have supported the prosecution case. The Investigating Officer after completion of investigation has submitted charge sheet against seven named accused persons and the revisionists Rinku Gaida @ Manish Gupta and Bobby Gaida @ Sandeep Gupta were exonerated.
4. During trial, the informant appeared as PW-1 and has supported the prosecution case. The other two injured witnesses namely Sanjay Verma (PW-2) and Ravi Verma (PW-3), have also supported the prosecution case. All the three witnesses produced by the prosecution have named both the revisionists Rinku Gaida and Bobby Gaida in their statements that they were also accompanied with other accused persons and participated in committing the crime.
5. After the statements of PW-1, PW-2 and PW-3, the informant through Additional District Government Advocate (Criminal) has moved the application under Section 319 Cr.P.C. which is Paper No. 119A on the ground that the involvement of revisionists in the incident are fully established by the prosecution witnesses and they were also named in the first information report and the Investigating Officer with the collusion of revisionists has exonerated them and no charge sheet has been submitted against the revisionists.
6. The application was opposed by the learned counsel for the accused persons on the ground that the proposed accused persons were not present at the place of incident and have not participated in the crime as alleged by the prosecution. The plea of alibi was also taken by the learned counsel for the accused persons that the proposed accused persons were present some where else and have not committed any offence as alleged by the prosecution.
7. The learned trial court after considering the statements of PW-1, PW-2 and PW-3 and other materials which are available on record had found that there are specific allegations against the revisionists regarding their participation in the crime and their presence on the spot was fully established by the prosecution witnesses, had summoned them vide order dated 24.08.2023 by allowing the application filed under Section 319 Cr.P.C.
8. It is submitted by learned counsel for the revisionists that the revisionists were not present at the place of incident and have not participated in committing any crime and Investigating Officer after due investigation has not found the presence of revisionists at the place of incident and as such, has rightly exonerated the revisionists and charge sheet was not submitted against them. The Investigating Officer during investigation has obtained C.D.Rs. of mobile phones of both the revisionists and has arrived at the conclusion that the mobile locations of the revisionists were not at the place of occurrence at the time of incident and none of the revisionists had made any conversation on mobile numbers of other co-accused persons. It is further submitted that revisionist namely Rinku Gaida @ Manish Gupta was in Bhopal on the date of incident and CCTV footage was also obtained by Investigating Officer, which proves that on the date of incident, revisionist Rinku Gaida @ Manish Gupta had withdrawn money from A.T.M. Lastly, it is submitted that the Investigating Officer during investigation had recorded the statements of independent witnesses, who also stated in their statements under Section 161 Cr.P.C. that the revisionists were in district Bhopal on the date and time of incident. Learned counsel for the revisionists further submits that both the revisionists were not present at the place of incident and on account of previous enmity, they have been named in the first information report. The presence of revisionists at the place of incident was not proved as they were in district Bhopal on the date of incident and the Investigating Officer after conducting fair investigation has found no evidence regarding participation of revisionists in the crime as alleged in the first information report, has exonerated the revisionists from any offence and submitted charge sheet against other seven named accused persons. Lastly, it is submitted that the involvement of revisionists in the present case has not been proved by the prosecution by adducing cogent evidence and the trial court has committed gross illegality in allowing the application filed under Section 319 Cr.P.C.
9. On the other hand, learned counsel appearing on behalf of opposite party no. 2 submits that both the revisionists were named in the first information report and specific role of firing has been assigned to them. The informant and other injured witnesses who appeared as P.W.-1, P.W.-2 and P.W.-3 have supported the prosecution case and named the revisionists with specific role. It is further submitted that the plea of alibi as claimed by the revisionists has rightly been denied by the learned trial court. The plea of alibi by the revisionists is only on the basis of call details and report of C.D.R. of the revisionists which can not be considered at the stage of summoning under Section 319 Cr.P.C., as the same is an electronic evidence which as per Section 3 of the Evidence Act would be certified by an expert under Section 65-B of the Evidence Act, which is required to be certified after the prosecution evidence.
10. Before considering the merits of the contention of rival parties it is necessary to refer Section 319 Cr.P.C. which 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."
11. By bare reading of Section 319 Cr.P.C. it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face trial, if it appears from the evidence that such person has committed any offence for which such person could be tried together with other accused.
12. The provisions of Section 319 Cr.P.C. have been enacted in the Code of Criminal Procedure with a view to achieve objective that the real culprit should not get away unpunished and the court is empowered to proceed against any person not shown as an accused, if it appears from the evidence that such person has committed any offence then he may be summoned to face the trial along with other co-accused.
13. The Full Bench of Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others reported in 2014 (1) JIC 539 (SC) has laid down the principles in respect of summoning the persons who were not charge-sheeted during investigation but from the evidence they were found guilty for committing such an offence. The relevant paragraphs 96, 97, 107, 108 are quoted hereunder:-
"96. 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- Judges Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, 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.
97. In Rajendra Singh (Supra), the Court observed:
"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 the Code or not."
107. 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.
108. 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."
14. The power of trial court under Section 319 Cr.P.C. in respect to arraign any person as an accused during the course of enquiry or trial is also dealt with by Hon'ble the Apex Court in the case of Babubhai Bhimabhai Bokhiria and another Vs. State of Gujarat and others, reported in (2014) 5 SCC 568. The relevant paragraph 8 is quoted hereunder:-
"8. Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher."
15. The Hon'ble Apex Court in the case of Darshan Singh Vs. State of Punjab reported in (2016) 3 SCC 37, has held that the plea of alibi is required to be proved after prosecution evidence is over. The relevant para 17 is quoted herein below:-
"17. The word alibi means "elsewhere". The plea of alibi is not one of the General Exceptions contained in Chapter IV IPC. It is a rule of evidence recognised under Section 11 of the Evidence Act. However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused. In the present case the said condition is fulfilled."
16. The pleas of alibi of the revisionists on the basis of Call Detail Reports of mobiles of revisionists can not be considered at the stage of summoning under Section 319 Cr.P.C., as the same is an electronic evidence, which as per Section 3 of Evidence Act would needed to be certified by an expert under Section 65B of Evidence Act, which is required to be certified after the prosecution evidence is over.
17. Considering the rival submissions of the learned counsels for the parties and on perusal of record, it is apparent that both the revisionists were named in the first information report and the informant and two injured witnesses had levelled specific allegations against the revisionists regarding their participation in committing the crime. The trial court has not committed any illegality or irregularity in allowing the application under Section 319 Cr.P.C.
18. No ground for interference is made out. The criminal revision is devoid of merits and is liable to be dismissed.
19. Criminal revision is dismissed accordingly. Interim order, if any, stands discharged.
Order Date :- 21.2.2024 sailesh