Allahabad High Court
Mohd Faheem vs State Of U.P. And Another on 23 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 90 Case :- CRIMINAL REVISION No. - 425 of 2023 Revisionist :- Mohd Faheem Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Zafar Abbas Counsel for Opposite Party :- G.A.,Keshari Nath Tripathi,Mukhtar Alam Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the revisionist, Mr. Omprakash, learned AGA for the State and Mr. Mukhtar Alam, learned counsel appearing for opposite party no.2.
This criminal revision has been filed against the order dated 23.11.2022 passed by Additional Sessions Judge, court no.11, Moradabad in S.T. No.112 of 2017 (State vs. Parvez) crime no.117 of 2016 U/s 307, 324, 323, 504 IPC, P.S. Nagphani District Moradabad. By the impugned order, the learned court below on an application U/s 319 Cr.P.C. filed by the prosecution/ complainant has summoned the revisionist accused to face trial with co-accused.
The prosecution case is that in the night of 31.05.2016 at about 11 pm, Yameen Ali the uncle of first informant Ahmad Raza has gone to sleep on the roof of his house. When he lay down his beddings then Parvez, Javed, Ajmal and brother-in-law of Javed who lived in front of the house, hurling abuses started to assault the father and brother of the complainant with sharp edged weapons and brutally assaulted them causing serious injuries. The complainant brought them to the police station from where they were sent to the district hospital where they were admitted but further referred to Cosmos hospital. This FIR was registered on 01.06.2016 at 00:15 O'clock. After investigation, charge sheet was submitted only against Javed and Ajmal. During trial, four witnesses, Ahmad Raza complainant (P.W.-1), Mohd Ayub P.W.2, Hamid Raza (P.W.-3) and Masood Raza (P.W.-4) the injured were examined thereafter an application U/s 319 Cr.P.c. was filed by the prosecution to summon the other accused named in the FIR Mohd Faheem and Ajmal Ali which has been allowed.
Learned counsel for the revisionist contended that the trial court has illegally allowed the application without considering the facts and circumstances of the case and without perusing the statement of P.W.-1 to P.W-4. From the whole prosecution version, during the investigation, it is clear that revisionists were not present at the time of alleged occurrence. Several persons namely Mauti, Mohd Ayub, Yameen, Ahmad Raza, Hamid Raza, Masood, Naseem have filed their affidavits before S.S.P., Moradabad that revisionists are not involved in the case. There are several independent witnesses who have not supported the prosecution case during the investigation and they are also the witnesses of the charge-sheet. They have yet to be examined but the learned trial court did not consider these facts before passing the impugned order. The learned trial court overlooked the aim and object of Section 319 Cr.P.C. and illegally summoned the revisionist in this case, without any evidence, in a routine manner. The impugned order is illegal and arbitrary and is liable to be set aside.
Learned counsel appearing for opposite party no.2 and learned AGA submitted that the revisionist are named in the FIR. There are specific allegations that they assaulted the complainant and others with sharp edged weapons. Hamid Raza, Ayub and Masood Raza have sustained injuries in the incident. They have been medically examined. The complainant as well as the injured in their statements U/s 161 Cr.P.C. have corroborated the allegations of the FIR and has implicated the revisionist. The Investigating Officer ignoring the aforesaid evidence only on the basis of some so called independent witnesses has exonerated the revisionist in improper manner. The complainant and all other three injured in their statements before the trial court have again reiterated their previous statements and have assigned the role of assault with sharp edged weapon to the revisionist also. So there is sufficient evidence on the basis of which the learned court below has exercised its power U/s 319 Cr.P.C. There is no illegality in the impugned summoning order.
The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. The relevant paras 98 and 99 are as follows:
"98. 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."
"99. Thus, we hold that though only a prima face 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."
It is undisputed that the revisionist Ajmal Ali is named in the FIR while other revisionist Mohd. Faheem is named as brother-in-law of Javed. So both the revisionist are named in the FIR and there are specific allegations against them that they have assaulted the complainant and others. It is also established from the material on record that three persons namely Masood Raza, Ayub and Hamid Raza have sustained injuries in the incident. Their medico legal report and supplementary report are part of the record. All these witnesses have corroborated the allegations of the FIR, in their statements recorded by the Investigation Officer U/s 161 Cr.P.C. These witnesses have been examined before the trial court. They have again corroborated the allegations of the FIR and have made specific allegations that the revisionists were present at the time of occurrence and participated in the incident. They have assaulted the injured with sharp edged weapons. It is settled law that the testimony of injured witnesses has a greater value and cannot be ignored but only for sufficient and cogent reasons.
In Rajesh and ors vs.State of Haryana, (2019) 6 SCC 368 wherein informant named 10 persons for attempt to murder of his son and another with specific allegations against all the accused. The Investigating Officer submitted his report U/s 173 (2) Cr.P.C. against four accused only, no challan filed against six accused (appellants). The trial proceeded against four accused only. During trial, P.W.-1 (complainant) and P.W.-2 (injured witness) specifically stated about the overacts by the accused appellants and role played by them. An application for proceeding against them under section 319 Cr.P.C. was allowed by the trial court. The High Court dismissed the revision. The Apex Court held that, "the appellants herein are also named in the FIR, in the deposition before court, P.W. 1 & 2 have specifically stated against appellants and specific roles attributed to them, on the basis of the same, the persons against whom, no charge-sheet is filed can be summoned to face the trial, no error has been committed by the courts below to summon the appellants therein to face the trial in exercise of power U/s 319 Cr.P.C."
So applying the test laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence than mere probability of the complicity of the accused in the form of testimony of injured witness as well as eye witness named in the FIR. In comparison to it the the evidence on the basis of which the Investigating Officer has exonerated the revisionist accused is of a very weak nature. There is sufficient and cogent evidence on record 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 un-rebutted would led to conviction and it pass the test as laid down by the Apex Court.
The learned trial court with a detailed and reasoned order has allowed the application. The learned trial court has narrated the entire facts, evidence and other material available on record and the proposition of law on the point and thereafter has given the finding that there is sufficient ground to exercise the powers U/s 319 Cr.P.C. and has passed the impugned summoning order. There is no illegality or infirmity in the impugned summoning order. It is just and proper.
In view of the above, this criminal revision is devoid of merits and is hereby dismissed.
Order Date :- 23.3.2023 C. MANI