Allahabad High Court
Suresh vs State Of U.P. And Another on 1 August, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On: 22.7.2022 Delivered On: 1.8.2022 Court No. - 80 Case :- CRIMINAL REVISION No. - 2415 of 2012 Revisionist :- Suresh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sumit Goyal Counsel for Opposite Party :- Govt. Advocate,Sunil Kumar Srivastava Hon'ble Rajeev Misra,J.
1. Heard Mr. Sumit Goyal, the learned counsel for revisionist and learned A.G.A. for State. No one appears on behalf of first informant/opposite party-2 to oppose this revision even though name of Mr. Sunil Kumar Srivastava, Advocate, is duly published in the cause list.
2. Perused the record.
3. This criminal revision has been filed challenging order dated 23.7.2012, passed by Additional Sessions Judge/Ex Cadre No.1 in Sessions Trial No. 622 of 2009 (State Vs. Omprakash and Others), under section 323/34, 324/34, 307/34, 504, 506 IPC and 3 (1)(10) SC and ST Act, Police Station-Rampur District-Saharanpur, whereby application under section 319 Cr.P.C. filed by the first informant-opposite party-2 has been allowed and simultaneously revisionist has been summoned by Court below to face trial in aforementioned Sessions Trial.
4. Record shows that in respect of an incident which is alleged to have occurred on 13.5.2008, at 10:00 pm, first informant/opposite party-2 Ramkumar lodged an F.I.R. dated 15.5.2008, which was registered as Case Crime No. 151 of 2009, under sections 147, 148, 149, 324, 323, 504, 506, Police Station- Rampur, District Saharanpur. In the aforesaid F.I.R. five persons namely, Sethpal, Om Prakash, Binder, Janak and Akshay have been nominated as named accused, whereas two unknown persons have also been arraigned as accused.
5. The gravamen of the allegations made in the F.I.R. is that named accused along with unknown persons on the fateful day assaulted Raj Kumar and Meghraj on account of which they sustained fire arm injuries.
6. After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined Raj Kumar (injured), Meghraj Singh (injured) Ram Kumar (first informant) and other witnesses in terms of Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only four of the named accused i.e., Om Prakash, Binder, Janak and Akshay is established in the crime in question. Accordingly, Investigating Officer submitted the charge-sheet dated 22.11.2008, whereby Om Prakash, Binder, Janak and Akshay have been charge sheeted, whereas one of the named accused namely, Om Prakash was exculpated.
7. After submission of aforesaid charge sheet, cognizance was taken upon same by concerned Magistrate. As the case is exclusively triable by Court of Sessions, concerned Magistrate committed the case to the Court of Sessions. Consequently, Sessions Trial No. 622 of 2009 (State Vs. Omprakash and Others), under section 323/34, 324/34, 307/34, 504, 506 IPC and 3 (1)(10) SC and ST Act, Police Station-Rampur District-Saharanpur came to be registered. The trial Judge, charged the charge-sheeted accused for crime under different sections of IPC which was denied by charge sheeted accused, and they claimed to be tried. Hence to bring home the guilt of charge sheeted accused successfully, trial procedure commenced. During course of trial, the prosecution adduced P.W.1- Meghraj Singh and P.W.2 Manoj Kumar.
8. At this juncture, first informant/opposite party-2 filed an application under section 319 Cr.P.C. praying therein that revisionist be also summoned to face trial in aforementioned sessions trial. Same was allowed by Court below vide order dated 2.11.2010.
9. Feeling aggrieved by order dated 2.11.2010, passed by Court below, revisionist approached this Court by means of Criminal Revision No. 5082 of 2010 (Suresh Vs. State of U.P). Aforesaid criminal revision was allowed vide order dated 22.11.2010 and the matter was remanded to Court below for decision afresh, in the light of observations made in the order dated 22.11.2010 itself. For ready reference, the same is reproduced herein under:
"Heard learned counsel for the revisionist and learned A.G.A.
This criminal revision is directed against the order dated 3.11.2010 passed by A.D.J/FTC Ist, Saharanpur in S.T. No.622 of 2009, State Vs. Om Prakash and others by which he has arryed the revisionist as additional accused and summoned him for facing trial under Section 323/34, 324/34, 307/34, 504, 506 I.P.C. and 3(1)(X) of S.C./S.T. Act.
From the facts stated by the revisionist in the affidavit filed in support of this revision, it appears that the opposite party no.2 lodged a first information report at the Police Station Rampur District Saharanpur on 15.5.2008 on the basis of which Case Crime No.151 of 2008 under Sections 147, 148, 149, 323, 504, 506 I.P.C. was registered against the revisionist and four other persons Om Prakash, Binder, Janak, Akshay and one unknown person. During investigation the Investigating Officer recorded the statements of opposite party no.2 and injured Raj Kumar and Megh Raj under Section 161 Cr.P.C. After completion of the investigation charge sheet was submitted against Om Prakash, Binder, Janak and Akshay while the revisionist was exonerated.
After the submission of charge sheet, the case was committed for trial by the Sessions Court and registered as S.T. No.622 of 2009. After examination-in-chief of P.W.1 Megh Raj and P.W.2 Raj Kumar informant was recorded, the prosecution moved an application 20kha before the court below stating therein that the injured witness Megh Raj P.W.1 in his examination-in-chief had made categorical allegations that the revisionist, Om Prakash, Binder and� Janak had humiliated and insulted him in a public place and fired at him with his fire arm causing injuries to him and as such the involvement of the revisionist in the commission of the offence was prima facie established and as such he may be arrayed as additional accused and summoned for facing trial along with other co-accused. The said application has been allowed by the court below by the impugned order.
Learned counsel for the revisionist submitted that the impugned order cannot be sustained as the court below has summoned the revisionist for facing trial as additional accused along with the other co-accused without recording any satisfaction in his order that their exists a possibility that the revisionist is in all likelihood would be convicted.
In support of his contention learned counsel for the revisionist has placed reliance upon the case of Mohd. Shafi Vs. Mohd. Rafiq and another, 2007 (58) ACC 254, in which the Apex Court had held that before a Court exercising its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at the satisfaction that there exists a possibility that the accused so summoned, is in all likelihood, liable to be convicted and in the case of Sarabjit Singh & another Vs. State of Punjab & another, (2010) 2 Supreme Court Cases (Cri) 141, in which the Apex Court held that for exercising extra ordinary jurisdiction under section 319 Cr.P.C., the Courts are required to apply stringent tests; one of the test being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned and mere existence of a prima facie case may not serve the purpose. Since learned trial court has not recorded his satisfaction as above, the impugned order cannot be sustained and is liable to be set aside.
The criminal revision is allowed and the impugned order dated 3.11.2010 is set aside. The learned Addl. District Judge is directed to decide the application under Section 319 Cr.P.C. afresh in accordance with the directions of the Apex Court in the cases of Mohd. Shafi and Sarabjit (supra). "
10. Subsequent to above order dated 22.11.2010, passed by this Court, Court below decided the application under section 319 Cr.P.C. filed by first informant-opposite party-2 afresh by means of order dated 23.7.2012.
11. Thus feeling aggrieved by above order dated 23.7.2012, revisionist has now approached this Court by means of present criminal revision.
12. Present revision came up for admission on 10.9.2012 and this Court passed the following order;
"Heard learned counsel for the revisionist as also for private Opposite Party no.2 and perused the record.
Challenge in this revision is to the order dated 23.07.2012, whereby exercising powers under section 319 of Cr.P.C., revisionist has been summoned by Addl. Sessions Judge/ Ex Cadre no: 1, Saharanpur to face trial in Sessions Trial No. 622 of 2009, State Vs. Om Prakash and another.
It is contended that the incident is said to have taken place at 10:00 in the night, in which complainant's brother Raj Kumar and one Megh Raj were injured. It is further contended that the revisionist is not named in the FIR, nor Raj Kumar and Megh Raj named him in their statement under section 161 of Cr.P.C., nor any specific role was assigned to the revisionist. It is further contended that it was after two years of submission of the charge sheet that the revisionist was named by the witnesses before the trial court. It is further contended that earlier also, the revisionist was summoned under section 319 of Cr.P.C. by order dated 03.11.2010, which was set aside by this court in Criminal Revision No. 5082 of 2010 and the trial court has again summoned on the same set of evidence, which is bad in law. It is further contended that the revisionist does not belong to the village, wherein the complainant-injured reside. It is further contended that the daughter of the revisionist is married to one Randhir in the same village with whom the complainant side has inimical term. It is further contended that on account of said enmity, revisionist has falsely been implicated in the case.
In view of the submission of the learned counsel for the revisionist, the matter requires consideration.
Issue notice.
Since private opposite party no.2 has put in appearance through his counsel, who is present, therefore, notice need not be sent to private opposite party no.2.
Counter affidavit on behalf of opposite party no.2 may be filed within four weeks.
Learned A.G.A. may also file counter affidavit within the aforesaid period.
Rejoinder affidavit may be filed within two weeks thereafter.
List on 29.10.2012.
Considering the submission of learned counsel for the revisionist, it is directed that the order impugned dated 23.07.2012 summoning the revisionist shall remain in abeyance till the date fixed. It is made clear that proceedings of Sessions Trial in respect of co-accused persons, who are charge sheeted are not stayed. It shall be open to the learned trial court to proceed further against them in accordance with law. "
13. Instant criminal revision was thereafter listed for admission on 21.12.2012 and this Court passed the following order;
"The case is passed over for the day on the illness slip of Sri Sumit Goyal, learned counsel for the revisionist.
List on 04.02.2013 before appropriate Bench.
The case shall not be treated to be tied up with this Bench. "
14. However, inspite of order dated 10.9.2012, no counter affidavit has been filed by learned A.G.A. or by opposite party-2.
15. It is further noticed that no interim order is operating in this criminal revision since 21.12.2012. After expiry of a period of almost nine years and four months from the date of order dated 21.12.2012, an stay extension application duly supported by the affidavit of revisionist seeking extension of interim order passed by this Court, has been filed. It is apposite to mention here that Court below issued non bailable warrant against revisionist vide order dated 11.4.2022.
16. Mr. Sumit Goyal, learned counsel for revisionist contends that order impugned dated 23.7.2012, passed by Court below is manifestly illegal and without jurisdiction. It is next contended that applicant Suresh was not named in F.I.R dated 15.5.2008. During course of investigation of concerned case crime number arising out of aforementioned F.I.R., complicity of revisionist was not found to be established in the crime in question. Accordingly, no charge sheet was submitted against applicant. On the aforesaid premise, learned counsel for revisionist contends that Court below ought to have deferred the hearing of application under section 319 Cr.P.C. filed by first informant/opposite party-2 till the statement of Investigating Officer was not recorded. According to learned counsel for revisionist, the testimony of Investigating Officer would be relevant as he alone could place the facts and circumstances on the basis of which, the revisionist was not charge sheeted. It is thus urged that in the absence of testimony of Investigating Officer before Court below, the relevant material in concerned case crime number, regarding above, could not be placed before Court below. Court below has thus pre-empted the disposal of application under section 319 Cr.P.C. filed by opposite party-2. On account of above, serious prejudice has been caused to revisionist who has now been summoned to face the trial in above mentioned Sessions Trial simply on the basis of testimonies of P.W.1 Meghraj Singh and P.W.2 Manoj Kumar.
17. Mr. Sumit goyal the learned counsel for revisionist, further contends that no protest petition was filed by first informant/opposite party-2 against charge sheet dated 21.3.2009, submitted by Investigating Officer. Moreover no explanation regarding above, has been offered in the application under section 319 Cr.P.C filed by first informant/opposite party-2. It is then contended that application under section 319 Cr.P.C. was filed on account of an ulterior motive on the part of first informant/opposite party-2 only to harass the revisionist. In the submission of learned counsel for revisionist, testimonies of P.W.1 Meghraj Singh and P.W.2 Manoj Kumar do not make out a cast iron case for summoning the revisionist to face trial in aforementioned Sessions Trial. No finding has been recorded by Court below as to how the testimonies of P.W.1 and P.W.2 satisfy the test laid down by Constitution Bench in Hardeep Sngh etc. etc. Vs. State of Punjab and Ors etc. etc., reported in 2014 (3) SCC 92. No exercise was undertaken by Court below to weigh the material that was gathered by Investigating Officer during the course of Investigation and what new material has emerged against revisionist during the course of trial which obviously Court below was required to undertake as per the mandate issued by Apex Court in Brijendra Singh and Others Vs. State of Rajasthan (2017) 7 SCC 706. No grievance was raised by first informant opposite party-2 with regard to the manner of investigation or the failure on the part of Investigating Officer in not recording statements of a material Witnesses either before the Magistrate or before Senior Police Officer. Furthermore, no attempt was made to get the identity of revisionist established during the course of investigation. It is thus urged that Court below has failed to exercise its jurisdiction diligently. Court below has summoned the revisionist in "a casual and caviliar manner" even when there is no strong and cogent evidence against the revisionist. No finding has been recorded by Court below that something more than the complicity of revisionist is established in the crime in question. On the aforesaid premise, it is urged that impugned order passed by Court below cannot be sustained and therefore, same is liable to be setaside by this Court.
18. Per contra, the learned A.G.A. has opposed this revision. He contends that statement-in-chief of P.W.1 Meghraj Singh is alone relevant for deciding the application under Section 319 Cr.P.C. as he is a prosecution witness of fact. However, in the present case, there are testimonies of P.W.1 Meghraj (injured), and P.W.2 Manoj Kumar (independent witness). Aforesaid witnesses have also been cross examined. As such, their testimonies fall within the realm of legal evidence. Consequently, no illegality has been committed by Court below for deciding the application under section 319 Cr.P.C., on the basis of above. According to learned A.G.A., as per Constitution Bench judgement in Hardeep Singh (Supra) even the statement-in-chief of P.W.1 is sufficient for deciding the application under section 319 Cr.P.C. Police report submitted by Investigating Officer is not conclusive proof of innocence of revisionist. Same cannot be taken as a ground to urge that revisionist cannot be subsequently summoned to fact trial even though he has not been charge sheeted by Investigating Officer. No irregularity or illegality has been committed by Court below in passing the impugned order dated 2.2.2021, even though revisionist has not been charge sheeted by Investigating Officer. Revisionist will have adequate liberty to prove his innocence before Court below by adducing Investigating Officer also as a defence witness. No attempt has been made to draw a parallel between the statements of P.W-1 and P.W.2 as recorded under section 161 Cr.P.C and their testimonies given before Court below. Moreover no ground has been raised in the grounds of revision that nothing new has been stated by P.W.1 Meghraj Singh and P.W.2 in their depositions before Court below than what was stated in their statements under section 161 Cr.P.C. As such, nothing new has come on record on the basis of which revisionist could have been summoned. Impugned order passed by Court below is thus in conformity with the law laid down by Constitution Bench in Hardeep Singh (Supra) wherein Court has defined the manner in which jurisdiction under section 319 Cr.P.C. is to be exercised as well as the mandate of the Apex Court in Brijendra Singh (Supra) which requires the Court to weigh the material gathered during investigation and the evidence that has emerged during the course of trial before summoning an accused under section 319 Cr.P.C. Thus it is urged by learned A.G.A. that no jurisdictional error has been committed by Court below in passing the impugned order. On the aforesaid premise, learned A.G.A. vehemently contends that no indulgence be granted in favour of revisionist. Revision is therefore liable to be dismissed.
19. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638
(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805
(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 (xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 (xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 (xix) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741
20. 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.
21. 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).
22. Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
23. The nature of evidence required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph-106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses 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 second test laid down therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani (supra), Court held that a non charge sheeted accused can be summoned only on the basis of "strong and cogent evidence".
24. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
25. The trial Court is competent to exercise its power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in-chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation which suggests otherwise the trial Court is at least duty bound to look into the same, while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record. The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C (vide paragraph 15 of judgement in Brijendra Singhs's Case (Supra)).
26- 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).
27- In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's Case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameter regarding the exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
28- 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.
29. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of P.W.-1 Megh Raj Singh (injured) and P.W.-2 Manoj Kumar (independent witness), 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 manner."
30. P.W.1 Meghraj Singh has categorically stated that he had duly disclosed to the Investigating Officer regarding the complicity of revisionist Suresh in the crime in question. Apart from above, P.W.1 in his statement has categorically stated that gun shots were fired by named accused as well as the two not named accused i.e. Suresh and another. The Court finds that P.W.1 has remained consistent and categorical regarding the complicity of applicant in the crime in question. There is nothing on record to show false implication of revisionist in the crime in question. P.W.1 is an injured witness. It is well settled that the statement of an injured has higher evidentiary value. It is also settled that in case the deposition of an injured witness is denied, then the burden is upon the person who denies the same to establish as to how the injured sustained injuries.
31. P.W.2 Manoj Kumar is an independent witness. This witness has supported the prosecution story as unfolded in F.I.R. This witness has also remained consistent regarding the complicity of named/not named accused in the crime in question.
32. This Court in order to find out as to whether the summoning of the revisionist is in accordance with law as noted herein above, or not has examined the statement-in-chief of P.W.1 and P.W.2 threadbare. At this stage, it cannot be said that except for mere complicity of revisionist, nothing more is there on the record.
33. In the light of above, the finding recorded by Court below in the impugned order for summoning the revisionist to case trial cannot be termed as illegal, perverse or erroneous. The role of firing has been assigned to revisionist which is clearly supported by the statementa-in-chief of P.W.1 and P.W.2. As such something morethan mere complicity of revisionist is established in the crime in question.
34. In view of above, present criminal revision fails and is liable to be dismissed.
35. It is accordingly dismissed.
Order Date :- 1.8.2022 Arshad