Allahabad High Court
Rameshwar Pathak @ Daddan Pathak & Anr. vs State Of U.P. & Anr. on 4 September, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 28 Case :- CRIMINAL REVISION No. - 1691 of 2019 Revisionist :- Rameshwar Pathak @ Daddan Pathak & Anr. Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Yamuna Prasad Yadav,Baljeet Singh Counsel for Opposite Party :- Govt. Advocate,Ambrish Kumar Pandey Hon'ble Virendra Kumar Srivastava,J.
1. In view of COVID 19 pandemic situation, this matter is being heard through Video Conferencing.
2. This revision has been filed under Section 397 read with Section 401 Cr.P.C., 1973 (hereinafter referred to as 'Code') against the order dated 07.12.2019 passed by Additional Sessions Judge, Court No.3, District Gonda in Session Trial No.136 of 2017 (State vs. Madhav Raj and others) arising out of Crime No.79 of 2017, Police Station Katra Bazar, District Gonda whereby revisionists Rameshwar Pathak @ Daddan Pathak and Rajesh Singh, have been summoned on an application filed by the prosecution under Section 319 of the Code for trial of the offence under Sections 147, 323, 149, 302, 149 IPC., in the aforesaid case.
3. Heard Shri Vinod Kumar Singh, Senior Advocate assisted by Shri Baljeet Singh, learned counsel for revisionists, Shri G.D. Bhatt, learned AGA for the State and Shri Ambrish Kumar Pandey, learned counsel for opposite party no.2. and perused the record.
4. Learned Senior counsel for the revisionists submits that the impugned application filed under Section 319 of the Code has been allowed only on the statement of sole prosecution witness i.e. P.W.1 Kartar Nath Tiwari (opposite party no.2), informant of the prosecution case who is not an eye witness of the case. Learned counsel further submits that the alleged occurrence had taken place at 4:00 a.m. on 20.2.2017 in the village Korinpurwa, Rajgarh Aminpur, whereas P.W.-1, informant is resident of village Pipri Majha, Police Station Katra Bazar, Gonda which is situated one km away from the place of occurrence. Learned counsel further submits that as per FIR, the deceased had gone for natural call from his house towards his field alone on 20.02.2017 and the occurrence had taken place in front of the house of one Raj Kishore, resident of Korinpurwa, Rajgarh Aminpur village.
5. Learned Senior counsel further submits that as per prosecution story, Raj Kishore is sole injured in the alleged incident but he has not been produced by the prosecution. He further submits that in the alleged incident no specific role has been shown to the revisionists either in the FIR or in the statement of Kartar Nath Tiwari-P.W.-1, Learned counsel further submits that during investigation, in affidavit filed by the opposite party no.2 i.e. informant-P.W.1, he did not claim that he was an eye witness of the occurrence. It is also submitted that Kartar Nath Tiwari-P.W.1 in his examination has specifically admitted that he had not gone to the place of occurrence.
6. Learned Senior counsel for the revisionists further submits that the deceased was murdered by unknown persons as according to the prosecution, his dead body was recovered by the police. He further submits that the impugned order is illegal and without any evidence on record as well as also against the settled provision of law on Section 319 of the Code. Learned counsel further submits that the impugned order is liable to be set aside.
7. Learned AGA as well as learned counsel for opposite party no.2 jointly opposed and vehemently submit that though the presence of opposite party no.2 Kartar Nath Tiwari -P.W.1 has not been specifically mentioned in the FIR or his statement under Section 161 of the Code recorded by the Investigating Officer, but he has specifically stated in his examination before the Court that he was present at the place of occurrence and saw the whole occurrence. Learned counsels further submitted that as per settled provision of law, a person can be summoned by invoking the provision of Section 319 of the Code for trial along with other accused, if reliable evidence is available on record. They further submitted that for summoning any person as accused, in this provision, number of witness is not required and even on evidence of single witness, a person can be summoned as accused for trial. Learned counsels further submit that revisionists are named in the FIR and their names have also surfaced in the statement of Kartar Nath Tiwari-P.W.-1 recorded, under Section 161 of the Code as well as during trial hence, the impugned order is legal and as such no interference is required.
8. Prosecution case in brief is that Kartar Nath Tiwari PW-1, brother of deceased Mannu lal, lodged an FIR on 20.02.2017 at about 7:30 a.m. that deceased, at about 4:00 a.m. on 20.02.2017 had gone to ease himself towards his field and sensing that some unknown persons were already present there with an intention to kill him (Mannu lal), he in order to save his life ran towards the house of one Raj Kishore, son of Bachcha, resident of village Korinpurwa, Rajgarh Aminpur. When he (deceased) reached there, the accused persons (against whom a charge sheet has been filed) including the revisionists accused Rameshwar Pathak @ Daddan Pathak and Rajesh Singh on the ground of previous enmity chased the deceased and as the deceased reached the house of Raj Kishore, they forcibly took away the deceased from the house of Raj Kishore and brutally beaten him resulting his death. It has further been mentioned in the FIR that in the said incident Raj Kishore was also beaten by the accused persons Madhav Raj, Tribhuwan, Shanker and Munna including the revisionists.
9. On the said information, an FIR was lodged against the revisionists accused including four other persons under Sections 149, 323, 302 IPC. During investigation, the involvement of revisionists accused were not found in the said occurrence as such no charge sheet was submitted against them. During trial, the statement of informant, Kartar Nath Tiwari was recorded as P.W.1 wherein he stated that at the time of occurrence, he his elder brother Onkar Nath Tiwari and one Rakesh Kumar had also gone with deceased to irrigate his field and had seen the whole occurrence.
10. Subsequently, the prosecution filed an application under Section 319 of the Code stating therein that the revisionists accused are named in the FIR, as there are sufficient material available in case diary against them and also an affidavit was filed by Kartar Nath Tiwari-P.W.-1, Onkar Tiwari, Rakesh and injured witness Raj Kishore regarding involvement of the revisionists accused in the aforesaid offence but the Investigating Officer did not file charge sheet against the revisionists accused Rameshwar Pathak @ Daddan Pathak and Rajesh Singh. It was further mentioned that in the statement of Kartar Nath Tiwari P.W.-1, the involvement of the revisionists Rameshwar Pathak @ Daddan Pathak and Rajesh Singh has again been stated hence, both the revisionists accused be summoned for trial under Section 319 of the Code. The learned Trial Judge vide impugned order allowed the said application filed by the prosecution and summoned the revisionists.
11. Aggrieved by the said impugned order, this revision has been filed.
12. Before expressing any opinion in the light of argument of learned Counsels of both the parties, I would like to refer the relevant portion of Section 319 of the Code 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) .....
(3).....
(4)......"
13. Thus it is clear that for invoking the power under Section 319 of the Code, there must be evidence against such person. Law and principal on the nature of evidence required for invoking the power of section 319 of the Code as well nature and scope of power of the Court therein has now been well settled. Trial Court is not bound to allow all the applications filed under this provision and to summon any person for trial who has been exonerated during investigation, unless a strong and reliable evidence is produced by the prosecution during trial. Because the fact that on relying the report filed under section 173 (2) of the Code, the trial Court has already proceeded only against the existing accused and has not made any adverse comment on the said report, is in favour of the proposed accused.
14. The Constitutional Bench of Hon'ble Supreme Court in the case of Hardeep Singh v. State of Punjab & Others, (2014) 3 SCC 92 has clearly held that the power of the Court under this provision is discretionary and extraordinary power and the evidence as required in this section for summoning any person as an accused for trial must be strong and cogent evidence.
15. The Three-Judges Bench of Supreme Court in Labhuji Amratji Thakor v. State of Gujarat AIR 2019 SC 734 while relying on the law laid down by the Apex Court in Hardeep Singh (Supra) has held as under :
"6. Section 319 Cr.P.C. provides that 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.The Court, thus, during the trial on the basis of any evidence is fully empowered to proceed against any person, whose name was not even included in the F.I.R. or the Charge Sheet. The parameters of exercise of power under Section 319 Cr.P.C has been explained by this Court time and again. It is sufficient to refer to Constitution Bench judgment in Hardeep Singh (supra), where this Court had considered the following issue amongst others:-
6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted ?
7. The Constitution Bench judgment in the above judgment has held that under Section 319 Cr.P.C. Court can proceed against any person, who is not an accused in a case before it. The Constitution Bench, however, has held that the person against whom the Court decides to proceed, "has to be a person whose complicity may be indicated and connected with the commission of the offence.
8. Answering the Issue No.(iv) as noticed above, in Paragraph Nos. 105 and 106 of the judgment, following was laid down by the Constitution Bench:-
"105. Power under Section 319 CrPC 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.
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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused.
9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is "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." The present is a case, where the trial court had rejected the application filed by the prosecution under Section 319 Cr.P.C. Further, in the present case, the complainant in the F.I.R. has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure......."
(Emphasis supplied)
16. The Supreme Court in the case of Shiv Prakash Mishra v. State of U.P. AIR 2019 SC 3477 in case where the respondent no. 2 was named in FIR but after investigation his involvement was not found and no charge sheet was submitted against him. During trial, after examination of two prosecution witnesses including informant, an application under section 319 of the Code was filed for summoning the respondent no-2/accused but the trial court rejected the same as the evidence available on record was not sufficient for summoning the respondent no-2/accused. High Court also dismissed the revision filed against the order of trial Court. Dismissing the appeal by relying on law laid down in Brijendra Singh v. State of Rajasthan (2017) 7 SCC 706 and Hardeep Singh (Supra), the Apex Court held as under:
"The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan (2008) 14 SCC 51, "the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are "it appears from the evidence"...."any person"...."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court."
17. Once again Supreme Court in Sunil Kumar Gupta & ors. v. State of Uttar Pradesh AIR 2019 SC 1174 where in dowry death case, nine person including appellant were named in FIR and they were also named in dying declaration of deceased but only one person was named as accused in report u/s 173(2) of the Code filed for offence u/s 302 IPC and all the accused person including appellant were exonerated by the Investigating Officer. During trial, after examination of three witnesses, an application under Section 319 of CrPC seeking to summon the appellants/accused was filed for trial with other accused stating therein that accused were named in FIR and also in the evidence of PW-1 and PW-3. Trial Court allowed the application and summoned the appellants and revision against whereof was also dismissed by this Court. On appeal, Supreme Court while allowing the appeal and setting aside impugned order of trial court and of this Court, relying on the law laid down in Hardeep Singh (supra) held as under :
"12. Under Section 319 Cr.P.C., a person can be added as an accused invoking the provisions not only for the same offence for which the accused is tried but for "any offence"; but that offence shall be such that in respect of which all the accused could be tried together. It is to be seen whether the appellants could be summoned for the offence under Section 498A IPC and under Sections 3 and 4 of Dowry Prohibition Act. The statement of PW-1 both in the complaint and in his evidence before the court is very general stating that he had given sufficient dowry to Shilpa according to his status and that the groom side were not satisfied with the dowry and that they used to demand dowry each and every time. Insofar as the demand of dowry and the dowry harassment, there are no particulars given as to the time of demand and what was the nature of demand. The averments in the complaint and the evidence is vague and no specific demand is attributed to any of the appellants. In such circumstances, there is no justification for summoning the appellants even under Section 498A IPC and under Section 3 and 4 of Dowry Prohibition Act. It is also pertinent to point out that upon completion of investigation, the Investigating Officer felt that no offence under Section 498-A 304 B IPC and under Sections 3 and 4 of the Dowry Prohibition Act is made out. Charge sheet was filed for the offence punishable only under Section 498-A IPC against Chanchal @ Babita. As held in the Constitution Bench judgment in Hardeep Singh, for summoning an accused under Section 319 Cr.P.C. it requires much stronger evidence than mere probability of his complicity which is lacking in the present case. The trial court and the High Court, in our considered view, has not examined the matter in the light of the well-settled principles and the impugned order is liable to be set aside."
18. Now coming again to the facts of this case, in FIR, P.W.-1 Kartar Nath Tiwari has neither mentioned his presence nor any specific role of any accused, or the weapon used by the revisionists. It is an admitted case of the prosecution that the occurrence was neither happened at the place where the deceased had gone for natural call i.e. in his field or any other place where the presence of P.W.1 Kartar Nath Tiwari can be said as natural or probable because the offence was committed at 4:00 a.m. in the month of February in the village Korinpurwa, one km away from the residence of Kartar Nath Tiwari P.W.1, although P.W.1 Kartar Nath Tiwari in his examination has stated that at the time of occurrence, he along with his brother Munnu lal, deceased his elder brother Onkar Nath Tiwari had gone for irrigating the field with his co-villager Rakesh Kumar and when they reached near Prahladpurwa road, deceased told him that he was going for natural call and would reach at boring with one Ram Kishore. It has further been stated by him that as he was to reach at boring, he heard noise of his brother (deceased) and when they reached near the hut (Marha) of Raj Kishore, they saw that Rameshwar Pathak @ Daddan Pathak, Rajesh Singh, Munna, Shankar, Tribhuwan and Madhav Raj were beating the deceased (Munnu lal) by lathi danda. He further stated that when they tried to rescue the deceased, the accused persons caused injury to Raj Kishore and dragged the deceased from Raj Kishore's house to the house of one Badlu and also caused injury at that place.
19. In his examination, he (P.W.-1) further admitted that when he was present at Police Station he was informed by the Police Inspector that deceased was carried away from the place of occurrence by one Madhav Raj to hospital. He further stated that his brother Ram Babu Tiwari had gone to the hospital but he had not gone.
20. Although an FIR is not an encyclopedia of the full occurrence but in the peculiar facts and circumstances of the case, where the presence of any family member of the deceased was not shown in the FIR and neither any specific role of any accused person has been mentioned in it or any weapon has been mentioned in the FIR and all of a sudden during trial only one witness whose presence was not specifically noted in the FIR, has not only developed the prosecution story for his presence but also the presence of other family members of the deceased, his statement cannot be treated as sufficient cogent evidence for summoning the revisionists. In my opinion, unless some more witness(s) is/are examined, the impugned order of summoning the revisionists Rameshwar Pathak @ Daddan Pathak and Rajesh Singh cannot be said to be legal and justified.
21. In view of the aforesaid discussion, the impugned application under Section 319 of the Code is premature and has been allowed without any cogent evidence as required under Section 319 of the Code and against the aforesaid settled principle of law. The impugned application is thus liable to be dismissed. The impugned order dated 07.12.2019 is set aside and the application under Section 319 of the Code is dismissed.
22. However, it is made clear that observations made in this order will not affect the trial or the merits of the prosecution case. It is also provided that a prosecution may file another application under Section 319 of the Code during the course of trial as and when some further reliable witness(s) is/are produced and examined by the prosecution in addition to Kartar Nath Tiwari P.W.1.
23. With the aforesaid observations, the revision is disposed of.
Order Date :- 4.9.2020 P.s.