Allahabad High Court
Pratap Narayan vs The State Of U.P on 22 September, 2010
Author: Raj Mani Chauhan
Bench: Raj Mani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- U/S 482/378/407 No. - 3800 of 2010 Petitioner :- Pratap Narayan Respondent :- The State Of U.P Petitioner Counsel :- Pradeep Kumar Singh,Anshubhan Singh Respondent Counsel :- Govt. Advacate Hon'ble Raj Mani Chauhan,J.
Heard learned counsel for the petitioner and learned Additional Government Advocate for the State as well as perused the documents available on record.
This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the complainant against the order dated 01.9.2010 passed by the learned Additional Sessions Judge, Court No. 4, Hardoi in Sessions Trial No. 625/09 (State Vs. Mahendra Veer Vikram Singh & Others) arising out of case Crime No. 679/08, under Sections 498-A/304-B IPC & ¾ Dowry Prohibition Act, Police Station Mallava, District Hardoi by which the learned Additional Sessions Judge has rejected the application moved by the prosecution under Section 319 of the Code to summon the accused namely Dharmendra Veer Vikram Singh, his wife Smt. Baby and Vivek Kumar Singh.
The facts giving rise to the present petition may briefly stated as under:
On the written report of petitioner, police of P.S. Mallava, Disttrict Hardoi registered a case at Crime No. 679/08, under Sections 498-A/304-B IPC and 3/4 Dowry Prohibition Act for investigation against as many as six accused namely ? Mahendra Veer Vikram Singh @ Guddu, Srikrishna, Smt. Gyanwati, Dharmendra Veer Vikram Singh, Smt. Baby and Vivek Kumar Singh. The Investigating Officer during the course of investigation did not found the involvement of Dharmendra Veer Vikram Singh, Smt. Baby and Vivek Kumar Singh, therefore, he exonerated them on the basis of evidence adduced by him. The Investigating Officer found the involvement of the rest of accused namely Mahendra Veer Vikram Singh @ Guddu, Srikrishna and Smt. Gyanwati in commission of the offence under Sections 498-A/304-B IPC and 3/4 Dowry Prohibition Act consequently he submitted charge-sheet against them before the learned Chief Judicial Magistrate, Gonda and the learned Magistrate on the basis of charge-sheet had taken cognizance of the offence and committed the case to the court of sessions for trial which gave rise to the Sessions Trial No. 625/09 (State Vs. Mahendra Veer Vikram Singh & Others). During the course of trial, the complainant moved an application under Section 319 of the Code before the Trial Court to summon the accused who were left over by the Investigating Officer after his examination in chief was recorded by the Court. The application was rejected by the Trial Court on the ground that the accused cannot be summoned only on the basis of the statement of his examination in chief (P.W. 1). Thereafter the cross examination of the P.W. 1 was concluded thereafter the prosecution examined P.W. 2 and P.W. 3 who were too cross examined. Thereafter, the complainant moved another application under Section 319 of the Code to summon the accused- Dharmendra Veer Vikram Singh, Smt. Baby and Vivek Kumar Singh who were left over by the Investigating Officer on the ground that the on the basis of statement of witnesses, the involvement of the accused- Dharmendra Veer Vikram Singh, Smt. Baby and Vivek Kumar Singh in commission of the offence has been established. The application was opposed by the accused. The learned Additional Sessions Judge after hearing the learned counsel for the parties at length held that on the basis of evidence, the involvement of the accused- Dharmendra Veer Vikram Singh, Smt. Baby and Vivek Kumar Singh had not been established by the prosecution and the evidence led by the prosecution is not of such nature which may result in conviction of these accused. Therefore, the learned Additional Sessions Judge rejected the application moved by the complainant vide impugned order dated 01.9.2010 which has given rise to the present petition.
The submission of learned counsel for the petitioner is that the accused- Dharmendra Veer Vikram Singh, Smt. Baby and Vivek Kumar Singh to be summoned were named by the complainant in the First Information Report. The complainant and other two witnesses in their statement at trial have specifically stated that the accused Vivek Kumar Singh, brother in law (Nandoi) of the deceased had instigated the husband of the deceased to make demand . The specific allegation against Dharmendra Veer Vikram Singh and Smt. Baby are too there. The learned Trial Court did not find the involvement of the accused-Dharmendra Veer Vikram Singh in commission of the offence mainly on the ground that he was serving as constable in Lucknow while her wife Smt. Baby was living in Hardoi. This is a matter of evidence. The learned Trial Court was not expected at this stage to give specific finding that these accused were living separate. Learned counsel submits that as per established principle of law, a person can be summoned as an accused if the evidence led by the prosecution remains unrebutted it may result in conviction of the accused. In this case, the statements of the P.W.s 1, 2 and 3 if remain unrebutted will be sufficient to hold the accused guilty, therefore, the finding of the learned Additional Sessions Judge that there is no evidence on record to show the involvement of these accused and the evidence led by the prosecution is not of such nature which may result in conviction of the accused is illegal and is liable to quashed. Learned counsel in support of his argument has placed reliance on a decision of this Hon'ble Court in the case of Mamta & Others Vs. State of U.P. & Another reported in 2010 (2) JIC 594 (All).
Learned Additional Government Advocate opposed the petition and supported the impugned order passed by the learned Additional Sessions Judge.
I have given thoughtful consideration to the submissions advanced by learned counsel for the petitioner and learned Additional Government Advocate for the State as well as gone through the impugned order. The learned Additional Sessions Judge in view of the law laid down by the Hon'ble Apex Court in the case of Sarvjeet Singh and Ors. Vs. State of Punjab reported in [2009 (3) JIC 522 (SC)], Lal Suraj @ Suraj Singh and Ors. Vs. State of Jharkhand reported in [2009 (2) JIC 793 (SC)] and Municipal Corporation of Delhi Vs. Ram Kishan Rastogi reported in [1983 (1) SCC 1] was of the opinion that the accused can be summoned under Section 319 of the Code only when their involvement in commission of the offence is established and there is most likelihood of their conviction. The learned Additional Sessions Judge keeping in view the law laid down by the Hon'ble Apex Court as referred above has held that on the basis of evidence led by the prosecution, the only allegation against the accused-Vivek Kumar Singh who is to be summoned is that he had instigated the main accused i.e., the husband of the deceased to make demand of dowry but there is no allegation in the First Information Report that he has ever made any demand of dowry and he had put the deceased to harassment and torture. As regards, the accused Dharmendra Veer Vikaram Singh and Smt. Baby who are brother and sister-in-law (bhabhi) of the deceased, they were living separate. Dharmendra Veer Vikram Singh was serving as constable in Lucknow while Smt. Baby was living in Hardoi, therefore, their involvement too is not established.
The power to summon a person as an accused under Section 319 of the Code is extraordinary power of the Court which is exercised by the Court only if the involvement of the person to be summoned as accused is fully established and there is possibility of his conviction. The learned Additional Sessions Judge while rejecting the application under Sections 319 of the Code has found that there is no such evidence against the person to be summoned as accused which may result in their conviction consequently he has rejected the application by the impugned order which in my opinion does not suffer from any illegality and does not call for any interference.
The petition has got no force and is liable to be dismissed.
The petition is, therefore, dismissed.
Order Date :- 22.9.2010 Santosh/-