Allahabad High Court
Sudhir vs State Of U.P. And Another on 6 July, 2022
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL REVISION No. - 415 of 2022 Revisionist :- Sudhir Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Nitinjay Pandey Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Heard Sri Nitinjay Pandey, learned counsel for the revisionists and learned AGA for the State.
Pursuant to the earlier order of this Court, learned AGA has filed counter affidavit annexing the charge sheet, which is taken on record.
By means of the present criminal revision, the revisionist is assailing the legality and validity of the order dated 10.11.2021 passed by learned Additional District & Sessions Judge/Special Judge, EC Act, Etah whereby the court concerned has allowed the application 13B under Section 319 Cr.P.C. summoning Sudhir (non accused) to face the trial no 92 of 2011, State Vs. Vinay @ V.K. and others in case crime no. 159 of 2017 under Section 302 IPC, P.S. Sakeet, District Etah.
Submission made by the counsel that the genesis of the case starts from lodging of the FIR on 03.08.2017 at 00.30 hours for the incident said to have been taken place on 02.08.2017 at 2245 p.m. under Sections 147, 148, 149 and 302 IPC at the concerned police station against five named accused persons including the applicant by Vishny Dayal, the informant of the present case, with the allegation that the contesting parties are in inimical terms with regard to certain landed property and on the fateful day around 10.45 p.m. certain persons climbed over the roof top. Soon after that the informant and Promod reached on the spot and identified the assailant in the light of the torch. In the FIR one Sunil and Sudhir were attributed the role of firing upon the deceased Arjun and they have given an deadly firearm blows over the person. During investigation, the police has recorded the statement under Section 161 Cr.P.C. of Promod, in which it has clearly mentioned that out of two gunshot one was fired shot by Sunil and another firearm blow was given by some unknown persons. since the deceased has sustained gun shot injury over his person with two wounds of entry and one exit wound suggestive of the fact that there were to firearm injuries over the person.
However after having indepth probe in the matter, the Investigating Officer of the case has recorded the statement of Supervisor of the work place where the revisionist was gainfully employee and the Supervisor in no uncertain terms revealed that on the fateful date and time, the revisionist were working in the company as Machine Operator at Gautam Budh Nagar. It has been clearly pointed out that at relevant point of time, the revisionist was performing his night shift on 02.08.2017 and therefore the name of the revisionist and one Ajit was dropped from the report under Section 173(8) Cr.P.C.
After assessing the totality of the case, the trial has proceeded and three prosecution witnesses have examined. Interestingly, the statement of Vishnu Dayal, the informant is annexed as Annexure No. 1 to the supplementary affidavit in which Vishnu Dayal in his cross examination have clearly mentioned that after hearing the gun shot, the informant and Promod Kumar went over the site mentioning thereby they were not the eye witnesses of the incident has lodged in the FIR.
Learned counsel for the applicant has shown the judgment of Hon'ble Apex Court in the case of Brijendra Singh and others Vs. State of Rajasthan decided on 27.04.2017 in Crl. Appeal No. 763 of 2017, in which the Hon'ble Apex Court has held that:-
"Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was 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 (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material."
It is further argument by learned counsel for the revisionist that all the assailant have covered their faces by mask and thus it is not possible to identify the assailant. It is contended by the counsel that the learned trial judge has blissfully ignored all these relevant factors while forming the prima facie satisfaction to summon the revisionist in exercise of power under Section 319 Cr.P.C..
I have perused the order impugned and compared the same with the observation of Hon'ble Apex Court in the case of Brijendra Singh (Supra) and the Court too is in favour that all the material on record has to b taken into account while forming the prima facie opinion of the court concerned. Surprisingly the learned trial court has literally translated the story as narrated in the FIR and branded it as its satisfaction. This proposition is not at all acceptable.
Learned counsel for the revisionists in this regard has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C. :
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, 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.
105. Power under Section 319 CrPC is a discretionary and an extraordinary 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.
Learned counsel for the revisionists has further drawn the attention of the Court to para-12 of the above judgement:
"12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused."
Learned counsel for the revisionists has further submitted that the revisionists even not named in the F.I.R. and after thorough investigation the police too has not included the name of the revisionists in the chargesheet, even then the learned trial court has summoned the revisionists exercising his power u/s 319 Cr.P.C. in a cavalier fashion and without having any cogent evidence against them. Learned counsel for the revisionists in this regard has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019, in which it has been held that :
"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."
Learned counsel for the revisionists laid much emphasis in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, wherein it has been held by the Hon'ble Apex Court that, "Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the I.O. during investigation which suggested otherwise, the trial court was 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 (i.e. revisionists) complicity has come on record".
I have perused the order impugned and I am of the considered opinion that the same is dehors of the law laid down by Hon'ble the Apex Court in the aforesaid judgment. Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above), therefore, impugned order dated 10.11.2021 passed by learned Additional District & Sessions Judge/Special Judge, EC Act, Etah is hereby set aside and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of eight weeks positively from the production of certified copy of this order.
With the aforesaid observations, the present revision stands disposed off.
Order Date :- 6.7.2022 Abhishek Sri.