Allahabad High Court
Shailesh Pandey And Another vs State Of U.P. And Another on 20 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2187
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 74 Case :- CRIMINAL REVISION No. - 4296 of 2019 Revisionist :- Shailesh Pandey And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajrshi Gupta,Dileep Kumar(Senior Adv.),Muktesh Singh,Vinay Kumar Pathak Counsel for Opposite Party :- G.A.,Anand Kumar Singh Hon'ble Om Prakash-VII,J.
1. Present Criminal Revision has been filed with the prayer to quash the impugned judgment and order dated 4.11.2019 passed by the Additional Sessions Judge/Fast Track Court-IInd, Basti in Sessions Trial No. 230 of 2004 (State Vs. Subhash Mishra and others) by which the revisionists have been summoned to face trial for the offence under Section 363, 364, 302, 201 IPC on the application under Section 319 Cr.P.C. Further prayer has been made to stay the operation and effect of judgment and order dated 4.11.2019.
2. Heard Sri Dileep Kumar, learned Sr. Advocate assisted by Sri Muktesh Singh for the revisionists, Sr. H. N. Singh, learned Sr. Advocate assisted by Sri Anand Kumar Singh, Advocate for the opposite party no. 2 and learned A.G.A.
3. Submission of learned Sr. Advocate appearing for the revisionists is that impunged order passed on the application under Section 319 Cr.P.C. is illegal and without applying judicial mind. Revisionists were not named in the FIR. Name of the revisionists surfaced during investigation on the application of the informant/opposite party no. 2. Referring to the statement of the witnesses recorded twice during investigation Learned Sr. Advocate appearing for the revisionists also argued that star witness P.W.-2 Chandra Prakash has not disclosed the involvement of the present revisionists in it. P.W.-1 and P.W.-3 are not eye account witnesses. Incident is said to have taken place in the year 2003. Dead body of the deceased was received within the territorial jurisdiction of Police Station Chhavani, district Basti. In the evening inquest report was not prepared and two constables were deputed to supervise the dead body of the deceased. It is further submitted that in the night concerned itself informant lodged an FIR at Police Station Parsarampur district Basti for the offence under Section 363 IPC. Informant and some of the witnesses cited in the FIR lodged at Police Station Parsarampur also reached in the morning at the place where Inquest Report was being prepared, as is clear from the Inquest Report. It is also argued that in the meantime one application had been moved on 17.12.2003 by informant/opposite party no. 2 disclosing the name of the revisionists also as accused in commission of the present offence. FIR lodged at Police Station Chhavani for the offence under Section 279 and 304-A IPC was merged in the FIR lodged at Police Station Parasrampur and case was converted into the offence under Section 302 IPC. Referring to annexure no. 7, 8, 9 and 10 learned Sr. Advocate appearing for the revisionists also argued that only suspicion was shown against the revisionists about their involvement in the present matter. No concrete/cogent evidence was collected by the Investigating Officer. Independent witnesses interrogated by the Investigating Officer have also shown the presence of revisionists at another place, thus, no charge sheet was submitted against the present revisionists. On submission of charge sheet trial court started against the co-accused and it reached up to the stage of argument after completion of prosecution and defence evidence. Referring to the order sheet maintained before the trial court it is also argued that at one point of time matter was posted for judgment after hearing the parties. Since Presiding Officer was transferred and a new Presiding Officer joined, court again started hearing the argument. During that period, one application was received to the Sessions Judge concerned which was sent to the court concerned. Another application was moved on behalf of the public prosecutor before the court concerned invoking the jurisdiction under Section 319 Cr.P.C. to summon the present revisionists to face the trial. Court concerned after hearing the parties, vide impugned order summoned the revisionists to face trial. Learned counsel appearing for the revisionists also argued that since there was no cogent evidence against the revisionists collected by the Investigating Officer during investigation, therefore, charge sheet was not submitted against them. P.W.-1 and P.W. -3 are not eye account witness. Statement of the P.W.-2 is also based on suspicion only. Thus there was no occasion to summon the revisionists to face trial. It was further argued that summoning order was passed in this matter after a gap of about 14 years against the settled proposition of law. At this juncture, learned counsel for the revisionists also referred to the documents annexed with the application and further argued that while exercising the jurisdiction under Section 319 Cr.P.C. learned trial court has not afforded opportunity of hearing to the revisionists. No satisfaction as required under law was recorded in the impugned order. In support of his submissions learned counsel appearing for the revisionists also placed reliance on the following case laws :
1. Jogendra Yadav and others Vs. State of Bihar and another reported in 2015 AIR (SC) 2951.
2. Brijendra Singh and others Vs. State of Rajasthan reported in 2017 (4) JT 530.
3. Hardeep Singh and others Vs. State of Punjab and others reported in 2014 AIR (SC) 1400.
4. Mani Pushpak Joshi Vs. State of Uttarakhand and another reported in (2019) 9 SCC 805.
5. Lal Singh Arya Vs. Ranveer Jatav and others in CR.R. 508 of 2017 decided on 29.5.2017 by Madhya Pradesh High Court.
6. Smt. Asha Vs. State of Karnataka in Criminal Revision Petition No. 231 of 2016 decided on 30.3.2016 by Karnataka High Court.
4. Sri H. N. Singh, learned Sr. Advocate appearing for the opposite party no. 2 as well as learned A.G.A. argued that although power conferred under Section 319 Cr.P.C. was exercised by the court below at the stage of the argument after a gap of about 14 years yet there is sufficient evidence against the revisionists to proceed with the trial. Delay in moving the application under Section 319 Cr.P.C. does not create any bar to exercise jurisdiction under Section 319 Cr.P.C. It is further argued that facts mentioned in FIR was written down in the presence and on dictation of police. Involvement of the revisionists in the present matter is supported with the statement of P.W.-1., P.W.-2 and P.W-3 made before the court below on oath. A lengthy cross examination has also been made from the witnesses. All the requirement to exercise jurisdiction under Section 319 Cr.P.C. are available in the present matter. There is no illegality, infirmity or perversity in the impugned order. A prima facie case is made out. There was no occasion to issue notice to the present revisionists for hearing on the application under Section 319 Cr.P.C. Ratio laid down in Jogendra Yadav case (Supra) is only regarding availability of opportunity under Section 227 Cr.P.C. to the accused summoned on the application under Section 319 Cr.P.C. to face trial. Thus the revisionists do not get help with the law laid down in Jogendra Yadav case (Supra). Other case laws relied upon by the learned counsel appearing for the revisionists are also not helpful to the revisionists as there is sufficient evidence to proceed with trial against them.
5. I have considered the rival submissions made by the learned counsel for the parties and have also gone through the entire record.
6. In this matter, as is evident from the record, dead body of the deceased was found within the territorial jurisdiction of Police Station Chhavani. An FIR was registered at Police Station Chhavani in respect of the receiving of the dead body for the offence under Section 279 and 304-A IPC. In the night itself another FIR was lodged at Police Station Parasrampur for the offence under Section 363 IPC on the written report of P.W.-1 Jai Prakash Pandey. FIR registered at Police Station Chhavani was merged in the FIR registered at Police Station Parasrampur and offence under Section 302 IPC was also added and investigation was completed for the aforesaid offence. It is also evident from the record that during investigation one application had been moved by the P.W.-1 Jai Prakash Pandey at the Police Station Parasrampur mentioning the details of the offence said to have been committed by the present revisionists as well as the accused charge sheeted in the matter. Application under Section 319 Cr.P.C. was moved at the stage of argument in the year 2019. Offence is said to have been committed in the year 2003 and charge sheet had been submitted in the year 2004.
7. First submission raised on behalf of the revisionists is that application under Section 319 Cr.P.C. was moved at belated stage i.e. after a gap of about 14 to 15 years at the stage of argument. If the submissions raised by learned counsel appearing for the revisionists is compared with the provisions of Section 319 Cr.P.C. as well as law laid down by the Apex Court in Hardeep Singh case (Supra), it is evident that provisions of Section 319 Cr.P.C. 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. Thus, submissions raised across the Bar regarding exercise of powers under Section 319 Cr.P.C. after a gap of about 14 to 15 years has no relevance particularly keeping in view the nature of the offence i.e. offence under Section 302 IPC. Thus, it may safely be held that impugned order passed on the application under Section 319 Cr.P.C. summoning the revisionists to face trial for the aforesaid offence cannot be quashed or set aside merely on the ground of delay.
8. Now the question for consideration is whether the evidence collected during investigation could also be taken into consideration while dealing with the application under Section 319 Cr.P.C. Plain reading of Section 319 Cr.P.C. indicates that evidence which have to be considered while dealing with the application under Section 319 Cr.P.C. are the evidence collected in the course of any enquiry or trial. This proposition of law also finds support with the dictum of Constitutional Bench decision of Apex Court in Hardeep Singh case (Supra). Hon'ble Supreme Court in Brijendra Singh case (Supra) in exceptional circumstances has taken into consideration the evidence collected during investigation also wherein the certificate issued by the Government Department in support of alibi regarding the presence of the accused at another place at the time of committing the offence was taken into consideration and on that ground summoning order passed under Section 319 Cr.P.C. was set aside. In the present matter no such document which is impeccable in nature and does not require rebuttal is available on record in support of plea of alibi taken by the revisionists. Although some of the witnesses interrogated during investigation have stated that revisionists/accused were present in a function at another place but the statement of those witnesses cannot be placed in the category of document/evidence as has been categorised by the Apex Court in Brijendra Singh case (Supra). Thus submissions raised on behalf of the revisionists on this issue is also not acceptable.
9. As far as affording of opportunity of hearing to the revisionists while deciding the application under Section 319 Cr.P.C. is concerned, learned counsel appearing for the revisionists has relied upon the decision of Jogendra Yadav case (Supra). The issue involved before the Apex Court in Jogendra Yadav case (Supra) was whether accused summoned on the basis of order passed on the application under Section 319 Cr.P.C. could avail the provisions of Section 227 Cr.P.C. or not. Apex Court answered this issue in negative. Although while deciding the aforesaid issue at one moment it was also observed that before the disposal of the application under Section 319 Cr.P.C. opportunity of hearing to the proposed accused should be given. Apex Court in the case of Anju Chaudhary Vs. State of Uttar Pradesh and another reported in (2013) 6 SCC 384 discussing the previous decision in the case of Samaj Parivartan Samudaya Vs. State of Karnataka reported in (2012) 7 SCC 407 has laid down that law does not contemplate grant of any personal hearing to a suspect at this stage. Keeping in view the ratio laid down in Anju Chaudhary case (Supra), the submissions raised at the Bar regarding the opportunity of hearing to the revisionists/accused at the time of disposal of the application under Section 319 Cr.P.C. is also not acceptable.
10. So far as prima facie opinion which is to be formed for disposal of the application under Section 319 Cr.P.C. which requires stronger evidence than mere probability is concerned, it is settled proposition of law that degree of satisfaction is more than the degree which is warranted at the time of framing of charge against others in respect of whom charge sheet was filed. It is also settled proposition of law that only where strong and cogent evidence led before the Court is available, in that situation power conferred under Section 319 Cr.P.C. should be exercised. If in the back drop of aforesaid legal proposition, the evidence available before the trial court at the time of disposal of the application under Section 319 Cr.P.C. are scrutinised in the light of the submissions raised across the Bar, although P.W.-1 Jai Prakash Pandey and P.W.-3 Ram Surat are not eye account witnesses but P.W.-2 Chandra Prakash claims himself to be present on the spot at the time of incident. He also claims himself to be present at the time of occurrence when another incident on the same day in day hour was committed by the accused persons. There is no requirement of law that power conferred under Section 319 Cr.P.C. could be exercised only after witnesses are tested by cross examination. Trial Court while passing the impugned order has placed reliance on the statement made by the witnesses during trial on oath. If the statement of P.W.-1 and P.W.-3 made before the court on oath are not taken into consideration then also in the opinion of the Court statement of P.W.-2 who is eye account witness, is sufficient to exercise the powers conferred under Section 319 Cr.P.C. P.W.-2 has clearly and categorically disclosed the names of revisionists in commission of the offence. Thus in the opinion of the Court, the requirement as has been held in Hardeep Singh case (Supra) is available in the present matter. Trial Court while passing the summoning order on the application under Section 319 Cr.P.C has not committed any illegality. Summoning order also finds support with the evidence available on record.
11. Thus revision being devoid of merit is not liable to be allowed. Hence, it is dismissed at this stage itself.
20.12.2019.
Sachdeva.