Allahabad High Court
Chakradhar Dwivedi vs State Of U.P. Thru. Its Secy. Deptt. Of ... on 7 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Neutral Citation No. - 2023:AHC-LKO:80496 Court No. - 29 Case :- CRIMINAL REVISION No. - 1134 of 2023 Revisionist :- Chakradhar Dwivedi Opposite Party :- State Of U.P. Thru. Its Secy. Deptt. Of Home Lko. And Another Counsel for Revisionist :- Akhilesh Pratap Singh,Kapil Misra,R.B.S. Rathaur Counsel for Opposite Party :- G.A.,Prem Narayan Tiwari,Rakesh Kumar Mishra,Shyamendra Singh,Sumit Kumar Srivastava Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the revisionist, learned counsel for the opposite party no. 2 and perused the record.
This is a revision filed by the revisionist against the order dated 07.12.2021 passed by the Additional District & Sessions Judge, Court No. 5, Pratapgarh, whereby the application under Section 319 Cr.P.C. moved by the opposite party no. 2, first informant was allowed and the applicant was summoned to face trial under Sections 302/34, 504 & 506 IPC.
As per facts of the case, an FIR was lodged by the opposite party no. 2 against Dinesh Singh, Akhil, Nikhil and Chakradhar Dwivedi, the present revisionist with the allegation that on 08.06.2017 at about 11 a.m. he got an information that without informing him Sangeeta Singh w/o Dinesh Singh was getting measured her land adjoining his ancestral garden. When he along with his brother and others reached on the spot and found their land also being measured he interrogated that how without informing them the measurement of their land was also being done, at this, Dinesh Singh and Chakradhar Dwivedi exhorted Akhil and Nikhil, both sons of Dinesh Singh, to put to death the first informant and the persons accompanying him. Chakradhar Dwivedi handed over his pistol to Akhil and Akhil with the intention of causing death, fired at Dinesh Chandra. The fire hit him on his chest. All the accused persons made good their escape waiving their weapons in their hands. The brother of the first informant, Dinesh Chandra, was declared dead when he was taken to the hospital.
This FIR was lodged under Section 302, 504, 506 & 34 IPC. After investigation the Investigating Officer exonerated Chakradhar Dwivedi, the present revisionist and filed charge sheet against Dinesh Singh, Akhil and Nikhil under Sections 302, 504, 506 & 34 IPC. After filing of charge sheet the charge was framed against the chargesheeted accused persons. The statement of PW1, the first informant was recorded by the trial court and after recording the statement of PW 1 on 09.04.2021 the first informant moved an application under Section 319 Cr.P.C., appended at page-123 of the paper book, with the version that in the FIR he had implicated Chakradhar Dwivedi also along with other co-accused persons as an accused of committing murder of his brother but the Investigating Officer after investigation wrongly exonerated Chakradhar Dwivedi @ Guddu. In the FIR, in the statement under Section 161 Cr.P.C. of the first informant, in examination-in-chief and in the cross examination of the first informant the name of Chakradhar Dwivedi has been mentioned as a person involved in the murder of his brother, so Chakradhar Dwivedi be also summoned to face trial along with chargesheeted co-accused persons.
This application of the opposite party no. 2 - first informant was allowed vide order dated 07.12.2021 and Chakradhar Dwivedi was summoned to face trial under Sections 302/34, 504 & 506 IPC.
By filing this revision against the impugned order, it is argued by the learned counsel for the revisionist that at the time of investigation the statements of the witnesses; Smt. Sangeeta Devi w/o late Dinesh Chandra Shukla, Krishna Dev Pandey, official went on the spot for measurement, Ankur Shukla s/o Lekhpal, Vinod Kumar, Gauri Shanker Patel s/o Ramanand, Bhagauti Prasad s/o Dewta Deen, Bamba Prasad s/o Shiv Ratan, Nasir Ali s/o Mahboob Ali, Tapan Pandey s/o Govind Narayan Pandey, Govind Narayan Pandey s/o Krishna Gopal and Mukesh Shukla s/o Ram Lakhan Shukla, were recorded who stated in their statements that the revisionist Chakradhar Dwivedi was not present on the spot at the time of incident rather witnesses; Gauri Shanker Patel, Bhagauti Prasad, Bamba Prasad and Nasir Ali specifically stated that the revisionist Chakradhar Dwivedi was present at his home at the time of incident along with them. The trial court did not record its satisfaction as to how the court reached at the conclusion on the basis of evidence collected by the Investigating Officer during investigation and evidence recorded in the trial court that there was strong and cogent evidence for exercising power under Section 319 Cr.P.C.
The attention of the court is drawn towards judgement Brijendra Singh & others Vs. State of Rajasthan, 2018 CriLJ 98 and it was submitted that as per findings of the judgement of Constitution Bench in Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92, the word 'evidence' in Section 319 Cr.P.C. has to understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that power to proceed against any person after summoning him can be exercised on the basis of any such material as brought before it. The judgement Hardeep Singh (supra) is also placed before the court and it is submitted that as per para-106 of this judgement, 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 sort of satisfaction to an extent that the evidence if any unrebutted would lead conviction and in absence of such satisfaction the court should refrain from exercising such power under Section 319 Cr.P.C.
On the basis of these two judgements it is submitted that on the basis of evidence collected by the Investigating Officer and the evidence placed before the court and during trial it was the duty of the trial court to note down its satisfaction in this regard but the trial court without discussing or even without mentioning the evidence collected by the Investigating Officer during investigation merely mentioning the statement of the PW1 has come to the conclusion of summoning the revisionist to face the trial along with chargesheeted accused persons, which is against the mandate of the judgements Hardeep Singh (supra) and Brijendra Singh (supra).
Learned counsel for the opposite party no. 2 - the first informant submitted that the facts in the case of Brijendra Singh (supra) were different. In that case, the evidence collected during investigation and placed before the court was of different nature, thus, the findings of that case do not apply to the present case. In that case in support of plea of alibi of the summoned accused Assistant Inspector General of Police, Deputy Inspector General of Police, Medical Officer and Police Superintendent had issued their certificates in favour of the summoned accused persons but here the position is different. The call details report of the revisionist has not been placed before the court. As per judgement of Apex Court in Criminal Appeal No. 875 of 2021 - Manjeet Singh Vs. State of Haryana & others, only the evidence before the trial court is sufficient enough to exercise the discretion by the court under Section 319 Cr.P.C. and in the present case PW 1 first informant Suresh Chandra Shukla has fully supported the version of the FIR regarding the involvement of the revisionist in the offence, therefore, the impugned order does not suffer from any infirmity. Hence, prayer is made accordingly.
To decide the matter it is apposite to mention Section 319 Cr.P.C. which runs as under:-
319 Cr.P.C. - 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 afresh, and 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 Admittedly, it was the appropriate stage of trial when the application under Section 319 Cr.P.C. was move after the statement of PW 1 before the court.
It is the discretionary power as held by the Apex Court in Hardeep Singh (supra) as under:-
"Power under Section 319 Cr.P.C. 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."
As per Section 319 Cr.P.C. the court has to see that whether on the basis of "evidence" it appears that any person not being the accused has committed any offence, the court may proceed against such person. So let us go through the definition of the evidence as laid down in Section 3 of Evidence Act.
Section 3 Evidence Act;
(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.
The Apex Court in judgement Hardeep Singh (supra) has held as under:-
Para-78-
"It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during the investigation."
Whether the word "evidence" used in Section 319 Cr.P.C. has been used in comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded in the trial court, the Apex Court in the judgment Hardeep Singh (supra) in para-117 has held as under:-
117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till "evidence" under Section 319 Cr.P.C. becomes available for summoning an additional accused.
117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.
117.3. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
The above view of the Apex Court was again followed in the judgement Manjeet Singh (supra) in para-13 (xi & xii) as under:-
(xi) the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents;
(xii) it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during the investigation;
Thus, it is clear that for the purpose of Section 319 Cr.P.C. the court has to look into the "evidence" produced before the court during trial. Though, the court can take note of the evidence produced before the it during inquiry but as per judgement in Hardeep Singh (supra) the evidence produced during inquiry under Sections 200, 201 and 202 Cr.P.C. and under Section 398 Cr.P.C. can be considered only for corroboration of the evidence recorded in the court after the trial commences.
Admittedly, in the present case, no inquiry is held by the court during trial so for the disposal of application under Section 319 Cr.P.C. the court had to consider the evidence recorded by the trial court during trial only.
Though the learned counsel for the revisionist drew the attention of the court towards the judgement in Brijendra Singh (supra) and submitted that as per this judgement the Apex court held that when there was ample evidence collected by the Investigating Officer during investigation which suggested otherwise the trial court was bound to look into the same while forming prima-facie opinion regarding summoning of a person under Section 319 Cr.P.C. and to see whether much stronger than mere possibility of complicity of the revisionist had come on record. It was also argued that the trial court had to record its satisfaction on the basis of evidence collected at the time of investigation and adduced at the time of trial both but the trial court did not consider the evidence collected by the Investigating Officer during investigation. Hence, not recording the satisfaction of the trial court of this nature makes the order of the trial court erroneous.
It is true that in the judgement Brijendra Singh (supra) the Apex Court opined that when there was plethora of evidence collected by the Investigating Officer during investigation which suggested otherwise, the trial court had to look into that evidence also before forming any prima-facie opinion regarding summoning of any person under section 319 Cr.P.C. but in the judgement Brijendra Singh (supra) the facts were quite different as the appellant was the junior driver of Deputy Inspector General of Police. In that case Additional Inspector General of Police and Deputy Inspector General of Police and regarding other appellant the Medical Officer of the Government Hospital and Medical Officer, Primary Medical Health Centre, all the Government officers had adduced evidence regarding the presence of the appellant before them on the date of incident. Thus, the Apex Court finding ample evidence collected by the Investigating Officer during investigation which suggested otherwise as per facts of the particular case, opined otherwise. That finding of the Apex Court was just a finding on the facts of that particular case but in the judgement Hardeep Singh (supra) and Manjeet Singh (supra) the Apex Court has laid down a specific law that for summoning a person under Section 319 Cr.P.C. the court has to take into account the evidence collected during trial only to exercise its power under SEction 319 Cr.P.C.
In the present case also, the statement of the first informant was found supporting the prosecution version in the FIR and it was also confirming the statement of PW 1 under Section 161 Cr.P.C. Thus, the trial court on the basis of on oath statement of the first informant came to the conclusion of allowing the application under Section 319 Cr.P.C.
On the basis of above discussions, I do not find any illegality, irregularity or impropriety in the impugned order passed by the trial court. Hence, the revision is liable to be dismissed.
The revision is hereby dismissed.
Order Date :- 7.12.2023 gp