Allahabad High Court
Rajendra Prasad Yadav vs State Of U.P. And Another on 23 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:119550 Reserved on: 24.05.2024 Delivered on: 23.07.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 5517 of 2023 Revisionist :- Rajendra Prasad Yadav Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Amit Kumar Srivastava,Mool Chandra Counsel for Opposite Party :- G.A.,Rajesh Kumar Dubey,Saurabh Chaturvedi Hon'ble Rajeev Misra,J.
1. Heard Mr. Amit Kumar Srivastava, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Saurabh Chaturvedi, the learned counsel representing first informant/opposite party-2.
2. Perused the record.
3. Revisionist Rajendra Prasad Yadav has filed afore-mentioned criminal revision challenging the order dated 28.09.2023 passed by Additional Sessions Judge, Court No.1, Kaushambi, in Sessions Trial No. 109 of 2018 (State of U.P. Vs. Dinesh Yadav and others) arising out of Case Crime No. 303 of 2017, under Sections 302, 307, 504, 506, 34 I.P.C., Police Station-Mahewa Ghat, District-Kaushambi, whereby the application under Section 319 Cr.P.C. (paper no. 33 Kha) filed by prosecution/first informant has been allowed. Consequently, the revisionist, who is a prospective accused (named but not charge sheeted), has been summoned by court , under Sections 302, 307, 504, 506, 34 I PC to face trial in afore-mentioned Sessions Trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 29.11.2017, a prompt F.I.R. dated 29.11.2017 was lodged by first informant/opposite party-2, Shiv Baran and was registered as Case Crime No. 0303 of 2017 under Sections 302, 307, 504 and 506 I.P.C. Police Station Mahewa Ghat, District-Kaushambi. In the aforesaid F.I.R., four persons namely Rahul, Dinesh, Rajendra and Shiv Moorat have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused, with a common intention, came to the house of first informant/opposite party-2 and thereafter, assaulted Yadunath (brother of the first informant), on account of which, he sustained injuries. The F.I.R. further records that the injured was taken to Hospital, where he was declared brought dead.
6. It is apposite to mention here that in respect of the same incident dated 29.11.2017, another F.I.R. dated 27.12.2017 was lodged by one Suresh Kumar and was registered as Case Crime No. 0315 of 2017 Under Sections 452, 323, 504, 506, 325 I.P.C., Police Station Mahewa Ghat, District-Kaushambi.
7. As per the prosecution story, as unfolded in the subsequent F.I.R. dated 29.11.2017 registered as Case Crime No. 0315 of 2017, it is alleged that named accused armed with Lathi, Danda and Farsa came to the house of first informant and hurled abusive language. They thereafter assaulted the inmates of the house in which the wife of the first informant and the first informant sustained injuries.
8. After the previous F.I.R. dated 29.11.2017 registered as Case Crime No. 0303 of 2017 was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He first recovered the dead body of deceased, got the inquest proceedings of the body of deceased conducted, followed by the post-mortem of the body of deceased and thereafter, visited the place of occurrence and prepared the site plan .
9. After having undertaken the aforesaid preliminary exercise, Investigating Officer proceeded to examine the first informant and other witnesses under Section 161 Cr.P.C. to find out the veracity of the allegations made in the FIR and also the complicity of named accused in the crime in question. During course of investigation, various persons namely Ram Surat, Bachcha Singh, Mangli Prasad, Ram Lakhan, Jitendra Kumar Jaiswal, Ram Naresh, Krishnakant Pandey, Jagpal Lal, Kamla, Sudha Devi and Ram Kumari gave their notary affidavits before Superintendent of Police Kaushambi regarding innocence of named accused Rajendra Prasad Yadav.
10. Investigating Officer also obtained the C.D.R. report as well as the location report regarding the location of Mobile Phone of the revisionist Rajendra Prasad Yadav. On the basis of above, Investigating Officer concluded that complicity of named accused Rajendra Prasad Yadav i.e. revisionist (herein) is not prima facie established in the crime in question. As such, he has been falsely implicated. This conclusion drawn by Investigating Officer is evident from the document dated 27.12.2018, which is on record at page 66 of the paper book. On the basis of above, the other material collected by Investigating Officer during course of investigation and also the mitigating circumstance that emerged during course of investigation, he submitted the police report dated 24.02.2018 in terms of Section 173 (2) Cr.P.C. whereby two of the named accused namely, Dinesh Yadav and Shiv Murat Yadav were charge sheeted under Sections 302, 307, 504, 506, 34 I.P.C.. The Investigating Officer further observed that investigation in respect of Rahul Yadav and Rajendra Yadav is still pending.
11. After submission of afore-mentioned police report, the concerned Magistrate took cognizance upon same in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However as offence complained of is triable exclusively by the Court of Sessions, therefore, concerned Magistrate in compliance of Section 209 Cr.P.C. committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 5517 of 2023 (Rajendra Prasad Yadav Vs. State of U.P. and another) came to registered and is now said to be pending in the Court of Additional District Judge, Court-1, Kaushambi.
12. Concerned Sessions Judge proceeded with the trial and accordingly, in compliance of Section 211 Cr.P.C. framed charges against charge sheeted accused, who denied the same, pleaded innocence and demanded trial. Resultantly, the trial procedure commenced.
13. Prosecution in discharge of it's burden to bring home the charges so framed against charge sheeted accused i.e. Dinesh Yadav and Shiv Murat Yadav, adduced P.W.-1 Shiv Baran Yadav, (first informant), P.W.-2 Raj Baran and P.W.-3 Subhash Yadav. Their statement-in-chief commenced from 21.08.2018, 18.11.2019 and 15.08.2022 respectively.
14. After the statement-in-chief/examination-in-chief of aforementioned prosecution witnesses, who are alleged to be eye witnesses of the occurrence, was recorded, prosecution/first informant filed an application under Section 319 Cr.P.C. alleging therein that since as per the depositions of afore-mentioned witnesses, the complicity of named but not charge sheeted accused Rajendra Prasad Yadav, the revisionist (herein) is also apparent in the crime in question, therefore, he be also summoned to face trial in aforementioned Sessions Trial. This application came to be registered as paper No. 33Kha.
15. Concerned Sessions Judge i.e. Additional District and Sessions Judge, F.T.C.-1, Kaushambi, upon due appraisal and appreciation of the material on record, rejected the application (paper no. 33 Kha), vide order dated 31.01.2022
16. Feeling aggrieved by above order dated 31.01.2022 passed by Additional District and Sessions Judge/F.T.C.-1, Kaushambi, the first informant Shiv Baran (opposite party-2 in present criminal revision) filed Criminal Revision No. 883 of 2022 (Shiv Baran Vs. State of U.P. and another) before this Court. Afore-mentioned criminal revision came to be allowed by this Court, vide order dated 22.03.2023. For ready reference, the same is reproduced therein under:
"1. Heard learned counsel for the revisionist and learned counsel for the respondents/opposite party.
2. The present criminal appeal has been filed against the order dated 31.01.2022 passed by the learned Additional District and Sessions Judge/F.T.C.-1, Kaushambi, in S.T. No.109 of 2018, arising out of Case Crime No.303 of 2017, under Sections 307, 504, 302, 506 and 34 IPC, Police Station- Mahewaghat, District Kaushambi, whereby application under Section 319 of the Code of Criminal Procedure, 1973 filed by the revisionist has been rejected.
3. The brief facts for filing the revision are as follows:
4. First information report was lodged on the basis of written report submitted by the revisionist at police station concerned. Charge sheet was submitted against Rahul, Dinesh and Shiv Murat, under Sections 302, 307, 504, 506 and 34 IPC. The matter was committed to the court of sessions. During the pendency of the trial an application under Section 319 Cr.P.C. was moved on behalf of revisionist/complainant with a prayer that Rajendra (O.P. No.2) may be directed to face trial with other co-accused persons. The trial court has rejected the application affording opportunity to the parties to file objection and after hearing. Feeling aggrieved with the impugned order, the present revision has been filed.
5. Learned counsel for the revisionist has sought to assail the order passed by the court below by referring to the factual aspects of the case to contend that the O.P. No.2 is a named accused in the FIR and under the influence of political pressure, Investigation Officer has exonerated/deleted his name from the charge-sheet. It is the submission of the revisionist that P.W.-1 and P.W.-2 have categorically stated in their statements deposed before the court about the involvement of Rajendra (O.P. No.2) but the trial court without considering this fact, rejected the application under Section 319 Cr.P.C. Thus, prayer has been made to admit and allow the revision and to set aside the impugned order.
6. Per contra, learned counsel for the opposite party opposed the contention aforesaid and submits that order in question is proper and valid in the eyes of law and facts as well, as such, there is no need to interfere with the same and present criminal revision is liable to be dismissed.
7. The Hon'ble Apex Court in the case of Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 in paragraph nos. 105 and 106 has held as under: "105. 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." "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 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."
8. From perusal of the impugned order as well as the record, it is apparent that proposed accused-Rajendra (O.P. No.2) has been named in the FIR. During investigation and after collecting the evidence, I.O. has exonerated/deleted his name from the charge-sheet mentioning therein that at the time of the incident accused was not present at that point of time and forwarded the chargesheet against the rest of the accused-persons. On the chargesheet submitted by the I.O., cognizance was taken and charges were framed against the chargesheeted accused-persons and during trial, deposition of P.W.-1 and P.W.-2 were recorded, who categorically named and stated the active complicity of the accused-Rajendra (O.P. No.2) in the said crime. The learned trial court has rejected the application under Section 319 Cr.P.C. on the ground that there is contradiction as well as the I.O. has already exonerated the accused mentioning the fact that he was not present at the time and place of the incident. It is pertinent to note that plea of alibi cannot be considered in the teeth of specific statements of the eye-witnesses regarding the involvement and complicity in the alleged offence of the accused-Rajendra (O.P. No.2). The plea of alibi can be taken at the stage of defense.
9. Thus, order passed by the learned Court below is perverse and against law. Hence, the impugned order, being against law, is liable to be set-aside. In view of these facts and circumstances, it would be appropriate that matter be remanded back to the Court below to decide the application under Section 319 Cr.P.C. of the revisionist afresh in accordance with law.
10. Accordingly, the impugned order is set aside and the matter is remitted back to the Court below to decide the application of the appellant in accordance with law.
11. In above terms, appeal is disposed off.
Order Date :- 22.3.2023 "
17. In compliance of above order dated 22.03.2023, Court below re-considered the application under Section 319 Cr.P.C. filed by the prosecution/first informant (paper No. 33 Kha). This time Court below allowed the afore-mentioned application, vide order dated 28.09.2023.
18. Perusal of order impugned passed by Court below will go to show that the Court below has allowed the application under Section 319 Cr.P.C. on the ground that as per the depositions of PW-1 and PW-2, prima-facie the complicity of revisionist in the crime in question stands emerged, as PW-2 and PW-3 have mentioned the name of revisionist, the weapon held by each of the accused and the role of assault has been assigned to each of the accused including revisionist.
19. Thus feeling aggrieved by the order dated 28.09.2023, revisionist Rajendra Prasad Yadav, who is a prospective accused (named but not charge sheeted), but has now been summoned by court below to face trial in afore-mentioned Sessions Trial, has approached this Court by means of present criminal revision.
20. Mr. Amit Kumar Srivastava, the learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal and therefore, liable to be set aside by this Court. Referring to the material on record, he submits that independent witnesses have given their statements by way of affidavits, which is part of case diary, regarding the innocence of revisionist. As per the said evidence, even prima-facie the complicity of revisionist cannot be said to have emerged in the crime in question.
21. It is next contended by the learned counsel for revisionist that as per the depositions of P.W.-1, P.W.-2 and P.W.-3, who have deposed before court below upto this stage, only an inference of mere complicity of the revisionist can be said to have emerged in the crime in question. The prosecution witnesses examined upto this stage, allege themselves to be the eye witnesses of the occurrence. However, perusal of the depositions of aforementioned prosecution witnesses will go to show that there is no description qua the manner of occurrence. He, therefore, contends that in absence of above, it is not only the credibility of the aforesaid witnesses but also their depositions qua the present revisionist neither credible nor reliable. Furthermore, mere complicity of an accused in the crime in question is by itself not so sufficient a ground so as to summon him in exercise of jurisdiction under Section 319 Cr.P.C.,
22. On the above premise, he, therefore, contends that order impugned cannot be sustained and is, therefore, liable to be set aside by this Court.
23. Per contra, the learned A.G.A. for State-opposite party-1 and Mr Saurabh Chaturvedi, the learned counsel representing first informant-opposite party-2 have vehemently opposed the present criminal revision. They submit that order impugned in present criminal revision is perfectly just and legal and therefore, the same is not liable to be interfered with by this Court. Revisionist is a named accused but he was illegally exculpated by the Investigating Officer in the police report dated 24.02.2018 submitted under Section 173 (2) Cr.P.C. As per depositions of P.W.-1, P.W.2 and P.W.-3, who have deposed before court below upto this stage, strong and cogent evidence has emerged against revisionist, which is much more than his mere complicity in the crime in question. In the occurrence giving rise to present criminal proceedings, one person namely Yadunath has died, whereas four others persons namely Shiv Karan, Raj Karan, Arvind Kumar and Subhash have sustained injury, which is explicit from the documents (injury reports) occurring at pages 48, 49, 50 and 51 of the paper book. The injured Raj Kumar and Subhash Yadav, in their statements recorded under Section 161 Cr.P.C. have already implicated the revisionist in the crime in question. It is well settled that the testimony of an injured eye witness has greater evidentiary value and therefore, the same is not to be discarded lightly. In view of above, no exception can be carved out to the depositions of aforementioned prosecution witnesses. They further submit that earlier application under Section 319 Cr.P.C. filed by first informant/opposite party -2 was rejected by Court below, vide order dated 21.01.2022. The aforesaid order dated 31.01.2022 was set aside by this court, vide order dated 22.03.2023. It is thus evident that earlier order passed by Court below for rejecting the application under Section 319 Cr.P.C. cannot be re-considered to infer the innocence of prospective accused/revisionist. On the above conspectus, they, therefore, contend that court below has neither committed a jurisdictional error in passing the order impugned nor the Court below has exercised it's jurisdiction with such material irregularity, so as to vitiate the order impugned, warranting interference by this Court. Consequently, present criminal revision is liable to be dismissed by this Court.
24. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, Mr. Saurabh Chaturvedi, the learned counsel representing first informant-opposite party 2 and upon perusal of record, this Court finds that the primary issue, which arises for determination in present revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C.? As a corollary to above, Court will also have to consider;-Whether the order impugned is within the established parameters or not?
25. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by the Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Five Judges Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Five Judges Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra Yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177,
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xii) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17 (xvi) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xvi) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323, (xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301 (xx) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xxi) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xxii) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh.
(xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537 (xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.
(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375 (xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172 (xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
26. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 28.09.2023 passed by Additional District and Sessions Judge, Court No.-1, Kaushambi, in Sessions Trial No. 109 of 2018 (State Vs.Dinesh Yadav and others), under Sections 302, 307, 504, 506, 34 I.P.C. Police Station-Mahewa Ghat, District-Kaushambi, whereby revisionist has been summoned under Section 319 Cr.P.C. to face trial in above-mentioned Sessions Trial.
27. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
28. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).
29. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).
30. A prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness without getting his examination-in-chief recorded, vide Five Judges Bench judgment in Hardeep Singh (Supra).
31. The Court while summoning a prospective accused must come to the conclusion that a prima-facie case for summoning of a prospective accused is made out and in this regard, the Court must record it's satisfaction in consonance with the observation made in paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra).
32. Though in view of the law laid down by the Five Judges Bench in Hardeep Singh (Supra) that a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness but in case, if the statement of the witness, who has deposed before Court below, was also recorded under Section 161 Cr.P.C. then in such a circumstance, the Court must draw a parallel in between the deposition of the witness as well as his statement under Section 161 Cr.P.C. to find out whether something new has emerged in the deposition or not, vide Brijendra Singh (Supra).
33. The Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as it is a relevant material, vide Brijendra Singh (Supra).
34. A prospective accused can be summoned only if, an inference of guilt of the accused can be drawn as per the material on record, vide Brijendra Singh (Supra).
35. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).
36. A prospective accused should not be summoned by a Court by exercising it's jurisdiction in a casual and cavalier fashion but diligently, vide S Mohammad Ishpahani (Supra).
37. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence has emerged against a prospective accused and not merely on the basis of his complicity in the crime in question, vide S Mohammad Ishpahani (Supra).
38. In the judgments referred to above, there is a common thread that the Court can scrutinize the material on record while exercising power under Section 319 Cr.P.C.
39. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly, vide paragraph 37 of judgement in Manjeet Singh (Supra).
40. An accused, who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge, vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).
41. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh (Supra) requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
42. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.
43. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319 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.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
44. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him, vide Yashodhan Singh and Others (Supra).
45. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 IPC and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into, at the stage of deciding an application under Section 319 Cr.P.C.
46. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of PW-1 Shiv Baran Yadav (first informant), PW-2, Raj Baran and P.W.-3 Subhash Yadav, the revisionist could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier fashion?"
47. Upon perusal of record, this court finds that revisionist Rajendra Prasad Yadav is a named accused in the F.I.R. However, on the basis of the statements of witnesses examined under Section 161 Cr.P.C. including the injured witness, the various affidavits filed before the Superintendent of Police as noted above, qua the innocence of revisionist, which has been made part of the case diary and also the electronic evidence collected by the Investigating Officer, he exculpated the revisionist in the police report dated 24.02.2018.
48. P.W.-1 Shiv Baran Yadav is the first informant/eye witness, whereas P.W.-2 Raj Baran and P.W.-3 Subhash Yadav are alleged to be the eye witnesses of the occurrence. While P.W.-1, Shiv Baran Yadav, in his deposition before court below has not taken the name of revisionist Rajendra Prasad Yadav, the other two witnesses namely P.W.-2 Raj Baran and P.W.-3 Subhash Yadav have specifically implicated the revisionist in the crime in question. P.W.-1 Shiv Baran Yadav has been cross-examined also. Therefore, his deposition falls in the category of legal evidence. However, upon perusal of deposition of P.W.-1 i.e. statement-in-chief/examination-in-chief, this Court finds that no clarification has come in the examination-in-chief of P.W.-1 qua the complicity of present revisionist in the crime in question. Though P.W.-2, Ram Baran and P.W.-3 Subhash Yadav in their depositions before Court below have clearly implicated the revisionist in the crime in question. Their depositions before Court below are stereo-typed description of the occurrence devoid of material facts regarding the sequence of occurrence. However, P.W.-1, P.W.-2 and P.W.-3, in their depositions before Court below, have not stated anything about motive with the revisionist to commit the crime in question.
49. Copy of the F.I.R. dated 29.12.2017, which is in respect of the occurrence dated 29.11.2017. However, the timing of the occurrence, as mentioned therein, is 8.00 a.m., which is also the time of occurrence mentioned in the F.I.R. dated 29.11.2017. As per depositions of P.W.-1. P.W.-2 and P.W-3, it cannot be inferred as to who is the aggressor in the crime in question? There is clear silence in the depositions of aforementioned witnesses upto this stage. In the absence of any finding recorded by Court below with regard to above, the summoning of the revisionist cannot be sustained.
50. From perusal of the F.I.R. dated 29.11.2017, this Court finds that while named accused Rahul and Dinesh are the sons of Hooblal, revisionsit-Rajendra Prasad Yadav is the son of Lallu, whereas another named accused Shiv Mural is the son of Kamta.
51. It is the basic prosecution case that named accused came to the house of first informant with a common intention. Since the named accused belong to different families, therefore, burden is upon the prosecution itself to establish as to what necessitated the named accused to form a common intention. Therefore, what logically follows from above is that unless and until a strong motive come out against present revisionist Rajendra Prasad Yadav to commit the crime in question, it cannot be said that revisionsit had a common intention to commit the crime in question. The depositions of P.W.-1, P.W.-2 and P.W.-3 are completely silent in this regard. At this stage, reference be made to the judgement of the Supreme Court in Gandadhar Chandra Vs. State of West Bengal (2022) 6 SCC 576. Paragraph 14 of the report is relevant for the controversy involved in present criminal revision and accordingly the same is reproduced herein under:
" As consistently held by this Court, common intention contemplated by Section 34 I.P.C. pre-supposes prior concert. It requires meeting of minds. It requires a prearranged plan before a man can be vicariously convicted for the criminal act of another. The criminal act must have been done in furtherance of the common intention of all the accused. In a given case, the plan can be formed suddenly. In the present case, the non-examination of two crucial eyewitnesses makes the prosecution case about the existence of a prior concert and prearrangement plan extremely doubtful. "
52. Apart from above, from perusal of the depositions of P.W.-1, PW.-2, P.W.-3, it is clear that all the three prosecution witnesses are not consistent qua the complicity of the revisionist in the crime in question. While P.W.-1 in his deposition before Court below has not named the present revisionist but the other two witness have clearly taken the name of the revisionist in their depositions. Apart from above, there is no description qua the manner of occurrence giving rise to present criminal proceedings. Both PW-2 and PW-3 have given a parrot like description of the occurrence, which does not inspire confidence qua the present revisionst. Therefore, except for the mere complicity of the revisionist in the crime in question, nothing more has emerged. It is now well settled that mere complicity of an accused is not sufficient to summon a prospective accused, in view of law laid down by Apex Court in five Judges Bench in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 and S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226. It is only when strong and cogent evidence, which is much more than mere complicity of an accused is established in the crime in question that he can be summoned. Furthermore, only when an inference regarding the guilt of prospective accused can be recorded by Court on the basis of material on record that a prospective accused can be summoned. The Court, before summoning a prospective accused, thus has to record a satisfaction that a prima facie case is made out for summoning a prospective accused which satisfaction has to be in consonance with paragraph 106 of the five Judges Bench Judgement of Apex Court in Hardeep Singh (supra).
53. When the order impugned in present criminal revision is examined in the light of aforementioned parameters, this Court finds that Court below has allowed the application under Section 319 Cr.P.C. filed by first informant/opposite party-2 only on the ground that as per the depositions of P.W.-1, P.W.-2 and P.W.-3, complicity of revisionist has emerged in the crime in question. No attempt has been made by Court below to even consider the plethora of evidence collected by Investigating Officer during course of investigation and brought the same in the light of the depositions of PW-1, PW-2 and PW-3. Even as per the depositions of PW-1, PW-2 and PW-3, what has emerged, is only an inference regarding complicity of revisionist in the crime in question and not strong and cogent evidence. In view of above, Court below could not have come to the conclusion that a prima-facie case is made out against revisionist, so as to summon him inasmuch as, no satisfaction in consonance with paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra) could have been recorded. No finding has been returned by Court below that something new has emerged in the depositions of PW-1, PW-2 and PW-3 then what was stated by them in their previous statements under Section 161 Cr.P.C. It is, thus, evident that as per the material on record, no inference regarding the guilt of revisionist could be inferred. As a result, the parameters laid down in the case of Brijendra Singh (Supra) and S. Mohammad Ishpahani (Supra) have been completely ignored by Court below, while passing the order impugned.
54. For the reasons noted above, the order impugned cannot be sustained and therefore, liable to be set aside.
55. Present criminal revision is, thus, liable to be allowed.
56. It is, accordingly, allowed.
57. Impugned order dated 28.09.2023 passed by Additional Sessions Judge, Court No.1, Kaushambi, in Session Trial No. 109 of 2018 (State of U.P. Vs. Dinesh Yadav and others) arising out of Case Crime No. 303 of 2017, under Sections 302, 307, 504, 506, 34 I.P.C. Police Station-Mahewa Ghat, District-Kaushambi is, hereby, quashed.
58. Considering the facts and circumstances of the case, the cost is made easy.
Order Date:- 23.07.2024 Vinay