Allahabad High Court
Arunendra Alias Daddu Yadav vs State Of U.P. And Another on 5 March, 2024
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 21.2.2024 Delivered on 05.3.2024 Neutral Citation No. - 2024: AHC: 40191 AFR Court No. - 77 Case :- CRIMINAL REVISION No. - 5924 of 2023 Revisionist :- Arunendra Alias Daddu Yadav Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Nipun Singh,Vivek Chaturvedi Counsel for Opposite Party :- G.A.,Kunjesh Kumar Dubey Hon'ble Sanjay Kumar Singh,J.
1-The instant Criminal Revision under Section 379/401 of the Code of Criminal Procedure, hereinafter referred as "Cr.P.C" has been preferred by the revisionist-Arunendra alias Daddu Yadav with a prayer to set aside the impugned order dated 31.10.2023 passed by learned Additional Sessions Judge/Special Judge MP/MLA Court, Prayagraj in Complaint Case No. 2390 of 2010 (UPAD01-007721-2010), under Sections 307/419, 436/149, 323/149 I.P.C., Police Station Jhunsi, District Prayagraj, whereby application No. 171 kha dated 17.10.2023 moved by the complainant under Section 319 Cr.P.C. was allowed and revisionist-Arunendra alias Daddu Yadav was summoned to face the trial for the offence punishable under Sections 307/419, 436/149, and 323/149 I.P.C.
2-Heard Mr. V.P. Srivastava, learned Senior Advocate, assisted by Mr. Nipun Singh, learned counsel for the revisionist, Mr. J.K. Upadhyay, learned Additional Government Advocate assisted by Ms. Pratiksha Rai, learned Brief Holder for the State of U.P./opposite party No. 1, Mr. Kunjesh Kumar Dubey, learned counsel for opposite party no. 2 and perused the materials on record.
3-Brief facts of the case which are required to be stated are as follow:-
3.1-The complainant/opposite party no. 2-Shashi Devi moved an application under Section 156(3) Cr.P.C. dated 08.07.2005 in respect of incidents dated 29.06.2005 and 30.06.2005 against eleven accused persons, namely, Moolchandra Yadav, Smt. Vijma Yadav (MLA), Raju Yadav, Ashok Nishad, Loha Singh, Amar Singh, Gyan Chandra, Lal Chandra, Jabar Singh, Padmakar Rai-Sub-Inspector, Police Station Jhunsi, Allahabad and Raju seeking direction to lodge F.I.R. in the matter for the offence under Sections 395, 397, 436, 323, 504, 506, 364 I.P.C. alleging inter alia that Mohan Lal Yadav of her village was murdered by some unknown persons on 29.06.2005 in the morning. Angered by this murder, deceased's brother Moolchandra Yadav, Smt. Vijma Yadav (MLA), Raju Yadav, Gyan Chandra Yadav, Amar Singh Yadav, Ashok Nishad, Loha Singh, Jabar Singh, Raju, Lal Chand and 10-20 unknown persons barged into her house and started beating women, children and her brother-in-laws Raj Kumar and Awadhesh. Raj Kumar and Awadhesh got scared and ran away from the village. Then on the exhortation of Smt. Vijma Yadav, MLA, Moolchandra and other accused persons looted the ornaments, clothes and licensed rifles and cartridges of her brother-in-law Raj Kumar Yadav and her husband Ashok Kumar Yadav kept in house and set the house on fire, as a result thereof about 140 bags of grains and household items kept in the house were burnt to ashes. The accused persons also burnt the tractor parked in front of her house. It is further alleged in paragraph no. 4 of the application that on the next day, on 30.06.2005 under the leadership of Smt. Vijma Yadav, MLA, again Moolchandra Yadav, Arunendra @ Daddu Yadav (revisionist), Gyan Chandra Yadav, Jabar Singh, Amar Singh, Raju Yadav, Raju son of Tulsiram, Ashok Nishad, Lalchand and 15-20 persons came and opened fire with the rifles which they had looted from her house and weapons they had brought with them and barged into her house by breaking the doors and started beating her and her children. When she protested, then Vijma Yadav, MLA exhorted the persons who had come with her to set the house on fire and she herself by pouring kerosene set the bed on fire and started pushing the children towards fire. When she protested, then Padmakar Rai-Sub-Inspector, Police Station Jhunsi, Allahabad, who was present at the spot after beating and abusing her directed the constables to put her on police vehicle. Thereafter constables took her to the police station. In the police station also she was beaten. Her tent house and home were set on fire. In the application, it is also stated that police of concerned police station is not taking any action against the accused persons under the pressure and in collusion with Smt. Vijma Yadav (local MLA).
3.2-Learned Magistrate, vide order dated 03.08.2005 instead of directing to lodge F.I.R. in the matter treated the said application dated 08.07.2005 as a complaint and after recording statement under Section 200 Cr.P.C. of complainant on 12.08.2005 and statements under Section 202 Cr.P.C. of prosecution witnesses namely, Shiv Narayan (PW-1) on 27.09.2005, Awadhesh Yadav (PW-2) on 27.09.2005, Ram Bachcha (PW-3) on 12.04.2006, Shivmurat alias Rajjan (PW-4) on 12.04.2006, Ayodhya Prasad (PW-5) on 21.04.2006, Prakash Giri (PW-6) on 21.04.2006, Pramod Kumar (PW-7) on 21.04.2006 and Ajeet Kumar (PW-8) on 21.04.2006, summoned all the aforesaid accused persons vide order dated 29.06.2006 to face trial except the revisionist-Arunendra @ Daddu Yadav, who is presently "Block Pramukh" from block Bahadurpur, Prayagraj.
3.3-Accused persons had preferred the Criminal Misc. Applications under Section 482 Cr.P.C. Nos. 7761 of 2007, 2469 of 2007, 2667 of 2007 and 38646 of 2017 which were decided by common judgement and order dated 23.02.2018 by the coordinate Bench of this Court, whereby prayer for quashing the criminal proceeding, summoning order and issuance of bailable and non-bailable warrants against the accused persons were refused and trial court was directed to conclude the trial expeditiously, preferably within the period of eight months.
3.4-Thereafter, charges were framed against the accused persons on 13.10.2019 and statement of complainant and witnesses, namely, Shashi Devi, Awadesh Yadav and Shiv Narayan were recorded before the trial court as PW1, PW-2 and PW-3 on 09.12.2019, 29.09.2022 and 29.05.2023 respectively, in which, they have supported the prosecution case and made allegations against the present revisionist-Arunenedra @ Daddu Yadav also along with other accused persons. Relevant part of their statements in respect of role of the revisionist-Arunenedra @ Daddu Yadav regarding the incident dated 30.06.2005 are as under:-
(i) Statement of complainant-Shashi Devi, PW-1.
xxxxxxxxxx "दूसरे दिन सुबह हम लोग अपने महमूदाबाद वाले घर पर आये। फिर मुल्जिमान को जब पता चला तो वे लोग वहाँ पर भी आयें। मृतक मुनीम का लड़का अरुणेन्द्र उर्फ डब्बू तथा मूलचन्द्र मृतक मुनीम के भाई हमारे आदमी की राइफल लिये थे। तथा अरूणेन्द्र उर्फ डब्बू मेरे देवर की राइफल लिये थे। विजमा यादव के कहने पर फायर किया। मुल्जिमान मेरे घऱ का दरवाजा तोड़ दिये। हम लोगों को मुल्जिमान पुनः पीटे। घर अन्दर तख्ता रखा था। उसे विजमा यादव ने जला दिया। मेरे बेटे मंगल यादव के सिर का बाल पकड़ कर आग में झोकने की कोशिश किया। मैने हाथ पकड़ कर बेटे को अपने तरफ खींचने की कोशिश किया फिर पोलिस आ गयी। दूसरे दिन मुल्जिमान हमारी कार, ट्रैक्टर, टेण्ट हाउस में भी विजमा के ललकारने पर लगाया पुलिस के आऩे पर विजमा ने कहा कि इसे मारो। इस पर दरोगा ने हाथ ऐठ कर मुझे डण्डे से मारा। पुलिस को देखकर बाकी लोग भागने लगे। दरोगा जी के मारने के बाद विजमा ने भी मुझे मारा। मुझे तथा मेरे बच्चों को पुलिस वाले पकड़ कर थाने ले गये। थाने का नाम नहीं बता सकती। शहर के थाने में ले गया था। इस आगजनी व तोड़फोड़ में मेरा करीब 20-25 लाख का नुसकान हुआ आज तक मेरे पति व देवर की राइफल नहीं मिली। विजमा तथा अन्य मुल्जिमान मारते पीटते समय गाली भी दे रहे थे। हाजिर अदालत मुल्जिमान को देखकर साक्षी ने कहा कि ये मेरे गांव के है इन्हें मैं जानती पहचानती हूँ। अभियुक्ता विजमा यादव हाजिर अदालत नहीं है। वह किसी अन्य गांव की है।"
(ii) Statement of witness Shiv Narayan, PW-2 बयान शिव नारायण यादव पी०डब्लू-2 xxxxxxxx "दूसरे दिन दिनांक 30.06.2005 को हमारे ग्राम सभा उस्तपुर वामदबाद के मकान पर सुबह मूलचन्द्र विजमा यादव क्षेत्रीय विधायक डब्बू उर्फ अरूणेन्द्र यादव एक हाथ में मूलचन्द्र एक हाथ में डब्बू उर्फ अरूणेन्द्र लेकर आए और मेरे घर पर फायर करने लगे।
यहाँ खड़ा ट्रैक्टर को मेरे दरवाजे पर था खड़े ट्रैक्टर को विजमा यादव के कहने पर उसमें आग लगा दिये घर में खड़ी गाड़ी स्टीम (कार) को दरवाजा तोड़कर के अंदर मोबिल डालकर आग लगा दिया घर में मेरी बड़ी भाभी माया देवी व उनके बच्चे को मारना पीटना चालू कर दिया विजमा यादव जबरजस्ती टांग पकड़कर खींचने लगी बोली आग लगा दो मिट्टी का तेल छिड़ककर आग लगा दी और मेरे भाभी के बच्चों को आग में ढकलने लगी उनको भी आग में ढकेलकर इनको जला दो।
यहाँ पर मौजूद थानेदार पदमाकर राय से बोली मेरे भाभी शशी को पकड़कर जबरजस्ती जीप में ढकेल दिया जीप में बैठा लिया थानेदार पदमाकर राय मेरी भाभी को थाने में भद्दी भद्दी गालियां जाति सूचक देते हुए उनके साथ दुर्वव्यवाहार किया गया और थाने में लाकर मारा पीटा गया और उनको थाने पर तीन-चार दिन तक बैठाए रहे क्षेत्रीय विधायक विजमा यादव के दबाव में। कोई कार्यवाही न होने पर मेरी भाभी शशी देवी मुल्जिमानों को दण्डित कराने हेतु प्रा० पत्र दिया था।"
(iii) Statement of witness Awadhesh Kumar Yadav, P.W. 3 xxxxxxxx "दि०30/06/05 को उपरोक्त सभी अभि०गण, व लूटी हुई रायफल अरूणेन्द्र उर्फ डब्बू यादव और मूलचन्द्र यादव लेकर आये और उस्तापुर वाले घर में ट्रैक्टर, इस्टीम कार, टेन्ट हाउस के सामान रजाई, गद्दा, कुर्सी आदि, पर अपने साथ लायें मिट्टी के तेल छिड़ककर आग लगा दियें, मेरी भाभी ने जब विरोध किया तो विजमा यादव बाल पकड़कर उनकों मारने-पीटने लगी। विजमा यादव ने कहा कि सब लोगों को बच्चों सहित आग में डालकर जला दों। मैने जब बचाने को प्रयास किया तो मूलचन्द्र, अरूणेन्द्र उर्फ डब्बू यादव द्वारा बाहर से फायर किया गया। दि०30/06/2005 को विजमा यादव के साथ पदमाकर एस०ओ० झूंसी भी साथ में थे, जब विजय यादव मार-पीट ली, तो भाभी शशि देवी को पदमाकर राय ने अपनी सरकारी जीप में बैठा लिया और 30/06/05 से 06/07/2005 तक भाभी को थाने पर रखे थे, जब हम लोग थाने पर जाते थे तो पदमाकर राय दौड़ाकर मारते थे और गाली-गुप्ता देते थे।
जब मेरी भाभी छूटकर दि०06/07/2005 को आई तो उन्होंने बताया कि पदमाकर मारते-पीटते और प्रताड़ित करते थे। विजमा यादव के कहने पर पदमाकर राय थाने पर भाभी को गाली देता था व प्रताड़ित करता था।"
3.5-On 01.09.2023 statements under Section 313 Cr.P.C. of the accused persons were recorded and after completion of defence evidence and final argument, date was fixed for delivery of judgement on 18.10.2023. In the meantime before delivery of judgement, the complainant /opposite party no. 2 moved an application under Section 319 Cr.P.C. dated 17.10.2023 for summoning the revisionist-Arunenedra @ Daddu Yadav to face trial. The said application of the complainant has been allowed by the trial court vide order dated 31.10.2023 and summoned the revisionist Arunendra @ Daddu Yadav as an additional accused to face trial under Section 307/149, 436/149 and 323/149 I.P.C., which is the subject matter of challenge in the present Criminal Revision.
4-The main substratum of argument of learned counsel for the revisionist is that on 29.06.2005 revisionist's father was murdered, regarding which Moolchandra Yadav (uncle of the revisionist) lodged F.I.R. against Ashok Yadav (husband of complainant), Raju Yadav, Chottan Giri and Ramesh Chandra Yadav, therefore a false complaint has been filed by the complainant. Much emphasis has been given by contending that though in paragraph No. 4 of the complaint, allegation against the revisionist Arunendra @ Daddu Yadav has been levelled with regard to the incident dated 30.06.2005, but he was not included as an accused in array of the parties and he was not summoned under Section 204 Cr.P.C. The complainant at that time did not file any petition regarding non summoning of the revisionist along with other accused persons. It is next argued that complainant with ulterior motive has moved an application under Section 319 Cr.P.C. at the fag end of the trial on 17.10.203, a day before the delivery of judgement, which was not maintainable. It is also argued that on the basis of statements of PW-1, PW-2 and PW-3 given before the trial court, revisionist cannot be convicted, hence the same is not sufficient to summon the revisionist under Section 319 of Cr.P.C. The learned Additional Sessions Judge/Special Judge wrongly and illegally entertained the said application under Section 319 Cr.P.C. of the complainant and without applying judicial mind and without giving finding as to whether revisionist can be convicted on the material evidence (statements of PW-1, PW-2 and PW-3) or not, allowed the said application and summoned the revisionist in exercise of powers under Section 319 Cr.P.C. to face trial vide impugned order dated vide order dated 31.10.2023, which is liable to be set aside.
5-On the other hand, learned A.G.A. for the State and learned counsel appearing on behalf of complainant/opposite party no. 2 vehemently opposed the prayer made on behalf of the revisionist by contending that name of the revisionist Arunendra @ Daddu Yadav and allegation against him with regard to the incident dated 30.06.2005 are mentioned in paragraph no. 4 of the complaint itself, but due to omission, his name was not mentioned at first page of the complaint in the list of accused. The complainant and witnesses in their statements under Section 200 and 202 Cr.P.C. have also made allegation against the revisionist. Much emphasis has been given by contending that before the trial court also the complainant and witnesses who have been examined as PW-1, PW-2 and PW3 have made allegation against the revisionist by stating inter-alia that on the next day on 30.06.2005, in morning, they came to their house in Mahmudabad. When accused persons came to know it, they also came there. Arunendra @ Daddu Yadav was armed with rifle of complainant's brother-in-law and Moolchandra was armed with rifle of complainant's husband which were looted by the accused persons on 29.06.2005 and fired on the exhortation of accused Vijama Yadav (the then M.L.A.). Learned A.G.A. for the State referring the statements of PW1, PW2 and PW3, also argued that from their statements active involvement of revisionist in the incident dated 30.6.2005 is apparent on record and as such much more than prima facie case is made out against the revisionist, which is sufficient to frame charge against him.
6-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."
7-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.
8-The moot question involved in the present case is as to whether application under Section 319 Cr.P.C. of the complainant which was filed before delivery of judgement was maintainable or not and what would be degree of satisfaction for invoking the provisions of Section 319 Cr.P.C.
9-So far as the first issue regarding the maintainability of application dated 17.10.2023 under Section 319 Cr.P.C. is concerned, it would be appropriate to refer the Constitutional Bench judgement of Hon'ble Apex Court in the case of Sukhpal Singh Khaira Versus State of Punjab, (2023) 1 SCC 289, in which the Hon'ble Apex Court after wholesome treatment interpreting the word and phrases "Trial", "Conclusion of trial'' and "Trial when concluded" has settled the issue about the stage(s) of the proceeding at which power under Section 319 Cr.P.C. may be invoked. The relevant paragraphs of the said judgement are as follows:-
"Para no. 23- A close perusal of Section 319 of CrPC indicates that the power bestowed on the court to summon any person who is not an accused in the case is, when in the course of the trial it appears from the evidence that such person has a role in committing the offence. Therefore, it would be open for the Court to summon such a person so that he could be tried together with the accused and such power is exclusively of the Court. Obviously, when such power is to summon the additional accused and try such a person with the already charged accused against whom the trial is proceeding, it will have to be exercised before the conclusion of trial. The connotation 'conclusion of trial' in the present case cannot be reckoned as the stage till the evidence is recorded, but, is to be understood as the stage before pronouncement of the judgment as already held in Hardeep Singh (supra) since on judgment being pronounced the trial comes to a conclusion since until such time the accused is being tried by the Court.
Para no. 33- In that view of the matter, if the Court finds from the evidence recorded in the process of trial that any other person is involved, such power to summon the accused under Section 319 of CrPC can be exercised by passing an order to that effect before the sentence is imposed and the judgment is complete in all respects bringing the trial to a conclusion. While arriving at such conclusion what is also to be kept in view is the requirement of sub-section (4) to Section 319 of CrPC. From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. In a case where the learned Sessions Judge exercises the power under Section 319 of CrPC after recording the evidence of the witnesses or after pronouncing the judgement of conviction but before sentence being imposed, the very same evidence which is available on record cannot be used against the newly added accused in view of Section 273 of CrPC. As against the accused who has been summoned subsequently a fresh trial is to be held. However while considering the application under Section 319 of CrPC, if the decision by the learned Sessions Judge is to summon the additional accused before passing the judgement of conviction or passing an order on sentence, the conclusion of the trial by pronouncing the judgement is required to be withheld and the application under Section 319 of CrPC is required to be disposed of and only then the conclusion of the judgement, either to convict the other accused who were before the Court and to sentence them can be proceeded with. This is so since the power under Section 319 of CrPC can be exercised only before the conclusion of the trial by passing the judgement of conviction and sentence.
Para no. 34- Though Section 319 of CrPC provides that such person summoned as per sub-section (1) thereto could be jointly tried together with the other accused, keeping in view the power available to the Court under Section 223 of CrPC to hold a joint trial, it would also be open to the learned Sessions Judge at the point of considering the application under Section 319 of CrPC and deciding to summon the additional accused, to also take a decision as to whether a joint trial is to be held after summoning such accused by deferring the judgement being passed against the tried accused. If a conclusion is reached that the fresh trial to be conducted against the newly added accused could be separately tried, in such event it would be open for the learned Sessions Judge to order so and proceed to pass the judgment and conclude the trial insofar as the accused against whom it had originally proceeded and thereafter proceed in the case of the newly added accused. However, what is important is that the decision to summon an additional accused either suo-moto by the Court or on an application under Section 319 of CrPC shall in all eventuality be considered and disposed of before the judgement of conviction and sentence is pronounced, as otherwise, the trial would get concluded and the Court will get divested of the power under Section 319 of CrPC. Since a power is available to the Court to decide as to whether a joint trial is required to be held or not, this Court was justified in holding the phrase, "could be tried together with the accused" as contained in Section 319(1) of CrPC, to be directory as held in Shashikant Singh (supra) which in our opinion is the correct view.
Para no. 38- For all the reasons stated above, we answer the questions referred as hereunder.
Para no. 39.(I)- Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other co- accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
The power under Section 319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.
Para no. 40 (II)- Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion.
Para no. 41.(III)- What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?"
Para no. 41.1- If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.
Para no. 41.2- The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
Para no. 41.3- If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
Para no. 41.4- If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.
Para no. 41.5- If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
Para no. 41.6- If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
Para no. 41.7- If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
Para no. 41.8- If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of Cr.P.C can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial.
Para no. 41.9- If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing.
Para no. 41.10- On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
Para no. 41.11- Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.
Para no. 41.12- If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."
10-In the case in hand, admittedly the application under Section 319 Cr.P.C. was moved before the judgement was delivered/pronounced by the trial Court, hence in the light of principles laid down by the Hon'ble Apex Court in the case of Sukhpal Singh Khaira (Supra), this Court is of the view that application dated 17.10.2023 under Section 319 Cr.P.C. of the complainant was maintainable and same has been rightly entertained and considered by the trial Court.
11-So far as second issue regarding parameters / degree of satisfaction for invoking the provisions of Section 319 Cr.P.C. is concerned, it would be useful to refer following judgements of the Hon'ble Apex Court, wherein this issue has specifically dealt with.
11.1-The Constitutional Bench of Hon'ble Apex Court in the case of Hardeep Singh Versus State of Punjab,(2014) 3 SCC 92, has framed five questions, out of which question no. IV which is relevant for the purpose of this case is as under:-
Question (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused?
Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Aforesaid questions have been answered in the following terms:-
Para No. 117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial, therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different."
11.2-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.
11.3-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."
11.4-The aforesaid principles have further been followed by Hon'ble the Supreme Court in the cases of Periyasami and others Vs. S. Nallasamy; 2019 (4) SCC 342, Sugreev Kumar vs. State of Punjab and others; AIR 2019 SC 2903, Shiv Prakash Mishra vs. State of Uttar Pradesh; 2019 (7) SCC 806 and Mani Pushpak Joshi vs. State of Uttrakhand and another; AIR 2019 SC 5263.
12-Here it would also be relevant to mention that 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 the entire aspect.
13-So far as F.I.R. dated 29.06.2005 lodged by Moolchandra (uncle of the revisionist) regarding murder of revisionist's father against Ashok Yadav (husband of complainant), Raju Yadav, Chottan Giri and Ramesh Chandra Yadav is concerned, I find that they have been acquitted by the judgement and order dated 23.09.2010 of the trial court passed in Sessions Trial No. 338/2006, 489/2006 and 340/2006, but Moolchandra who was informant/complainant in that case did not prefer any appeal against the aforesaid judgement of acquittal and order dated 23.09.2010. Smt. Padmavati Devi, who is mother of the revisionist had preferred Criminal Appeal u/s 372 Cr.P.C. along with Criminal Misc. Application Defective U/s 372 Cr.P.C. (Leave to Appeal) No. 58 of 2017 after 2354 days on 27.05.2017, which has been dismissed as time barred by the Division Bench of this Court vide order dated 23.01.2019.
14-Having heard the submissions of learned counsel for the parties and examined the record in its entirety, I find that:-
14.1- The complainant in her application under section 156 (3) Cr.P.C. made allegation that since one of the accused-Vijma Yadav was sitting MLA at the time of incident and co-accused Padmakar Rai, Sub-Inspector at that time was posted in Police Station-Jhunsi, Allahabad, therefore, on the influence of Vijma Yadav, the then local sitting MLA, who is one of the accused in the present case, her FIR was not lodged with regard to incident dated 29.06.2005 and 30.6.2005. Under the circumstances, she filed application under Section 156(3) Cr.P.C. dated 08.07.2005 seeking direction to lodge F.I.R. in the matter for the offence under Sections 395, 397, 436, 323, 504, 506, 364 I.P.C., but the said application was treated as complaint, as such no police investigation was done in the matter.
14.2-Regarding the second incident dated 30.06.2005, allegation has been levelled against the revisionist-Arunendra @ Daddu Yadav in paragraph no. 4 of the complaint, statement under Section 200 Cr.P.C. of the complainant and statements of witnesses under Section 202 Cr.P.C. alleging inter-alia that on the next day, i.e. 30.06.2005 under the leadership of Smt. Vijma Yadav MLA, again Moolchandra Yadav, Arunendra @ Daddu Yadav (revisionist), Gyan Chandra Yadav, Jabar Singh, Amar Singh, Raju Yadav, Raju son of Tulsiram, Ashok Nishad, Lalchand and 15-20 persons came and opened fire with the rifles which they had looted from her house and the weapons, which they had brought with them and barged into her house by breaking the doors and started beating her as well as her children.
14.3-When statement of complainant (Shashi Devi) and witnesses namely, Shiv Narayan and Awadesh Yadav were recorded before the trial court as PW1, PW-2 and PW-3 they have made same allegation against the revisionist, as noted above in preceding paragraph no. 3.4.
14.4-Considering the facts, materials on record as well as statements of PW-1, PW-2 and PW-3, as mentioned above in paragraph no. 3.4, with regard to second incident dated 30.06.2005, I find that the role attributed to the revisionist-Arunendra @ Daddu Yadav is similar to role of accused Moolchandra Yadav who is already facing trial. Hence, this Court is of the view that the evidence which has come on record against the revisionist are much more than prima facie and are sufficient to proceed against the revisionist in exercise of power under Section 319 Cr.P.C. and for framing of charge.
15-In view of above, it can safely be held that the learned Additional Sessions Judge while passing the impugned order dated 31.10.2023 was fully satisfied that there are strong and cogent evidence against the revisionist which is sufficient for framing of charge and has not passed the order in a casual manner.
16-The order passed by the learned Additional Sessions Judge is in consonance with the law laid down by Hon'ble Supreme Court in Sukhpal Singh Khaira and Hardeep Singh (Supra) and it cannot be said that the order of the learned Additional Sessions Judge is in the teeth of the order of Hon'ble Supreme Court referred to above.
17-In view of what has been indicated herein above, I do not find any illegality or irregularity in the order date 31.10.2023 passed by learned Additional Sessions Judge/Special Judge MP/MLA Court, Prayagraj summoning the revisionist under Section 319 Cr.P.C. to face the trial under Sections 147, 148, 302/149, 323/149, 504 and 506 IPC along with other accused.
18-The Criminal Revision is bereft of merit. It is accordingly rejected.
Order Date :- 05.3.2024 Shubham