Allahabad High Court
Lala vs State Of U.P. Thru. Prin. Secy. Home, Lko ... on 2 May, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:25338 Court No. - 12 Case :- CRIMINAL REVISION No. - 458 of 2025 Revisionist :- Lala Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko And Another Counsel for Revisionist :- Onkar Nath Nishad,Deepak Chandra Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.
1. Supplementary affidavit filed today in Court is taken on record.
2. Heard Shri Onkar Nath Nishad, learned counsel for revisionist, learned A.G.A. for the State and perused the material available on record.
3. By means of the present criminal revision under Section 438/442 of the Bhartiya Nagarik Surkasha Sanhita, 2023 (397/401 Cr.P.C.), the revisionist has challenged the order dated 20.03.2025 passed by learned IVth Additional Sessions Judge, Bahraich in Sessions Trial No. 300 of 2018, arising out of Case Crime No. 265 of 2018, under Section 302 and 201 IPC, Police Station Motipur, District Bahraich whereby rejecting application under Section 319 Cr.P.C. preferred by the revisionist for summoning opposite party no. 2 Mukesh in the said trial.
4. It has submitted by learned counsel for revisionist that his son Arvind after eating food on 26.08.2018 had gone to sleep in Marha (hut) and in the morning he could not be traced and accordingly, a search was made. It is at 5:00 a.m. on 28.06.2018 that an information was received that a body was floating in a culvert near the forest. From the clothes the body was identified to be of Arvind, the son of the complainant. According to the prosecution case, Arvind was having an affair with one Ankita, daughter of Rudal and brother of opposite party no.2 - Mukesh . During trial, the only statement of revisionist implicating Mukesh is that in all likelihood the family members of Rudal was opposed to the relationship of Arvind and they would be responsible for murdering Arvind. During investigation, various villagers were interrogated and statements were recorded during which the implication of Mukesh was not found and therefore, his name was removed from the list of the accused persons. It is after the testimony of PW-1, PW-2 and PW-3 was recorded that an application under Section 319 Cr.P.C. was preferred by the revisionist.
5. The trial court after considering the said fact has noticed that neither is there any eyewitness to the said incident nor is there any circumstantial evidence implicating the opposite party no. 2 to the said offence and consequently there is not even prima facie satisfaction with regard to the implication of opposite party no. 2 to the said offence.
6. Learned counsel for revisionist has reiterated the submissions as raised before the trial court with regard to the implication of opposite party no. 2 and submitted that the order is illegal and arbitrary and there was sufficient material for implication and accordingly the trial court has misdirected itself in rejecting the application under Section 319 Cr.P.C. which needs to be considered.
7. Learned A.G.A. for the State has opposed the revision and submitted that there is no prima facie evidence implicating opposite party no. 2 to the said offence. It was stated that even if the statements of three prosecution witnesses are considered to be correct in its entirety then also there is no evidence forthcoming with regard to the implication of opposite party no. 2 to the said incident. and prayed for dismissal of the said revision.
8. Having heard learned counsel for parties and material available on record, it is noticed that the complainant's testimony has clearly stated that in all likelihood Arvind would have been killed by Rudal and Mukesh in light of the fact that Arvind was having in relationship with his daughter Ankita, which was disapproved by their family members. It is noticed that even the complainant apart from raising apprehension regarding the alleged person responsible for said incident has not stated cogently as to who was responsible for the said incident and in what manner Arvind has been put to death.
9. I have heard the rival contentions and perused the record. The issue in the present case is as to whether there was sufficient material before the trial court to invoke the provisions of Section 319 of Cr.P.C. The law with regard to exercise of power under Section 319 of Cr.P.C. have been duly considered by the Supreme Court in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) 7 SCC 706, where they affirmed the law laid down by the previous judgment of the Supreme Court in the case of Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92, the relevant portion is quoted here-in-below for ready reference:-
"9. The powers of the Court to proceed under Section 319 CrPC even against those persons who are not arraigned as accused, cannot be disputed. This provision is meant to achieve the objective that real culprit should not get away unpunished. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, explained the aforesaid purpose behind this provision in the following manner:
"8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under Cr indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished.
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12. Section 319 CrPC springs out of the doctrinejudex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.
13.It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?
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19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."
10. It also goes without saying that Section 319 Cr.P.C., which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of Sections 207/208 Cr.P.C., the committal, etc. which is only a pre-trial stage intended to put the process into motion.
11. In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word 'evidence' used in Section 319(1) CrPC has been used in a comprehensive sense and indicates the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that "evidence" under Section 319 CrPC could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence.
12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh's case and answered in the following manner:
"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 [(2014) 3 SCC 321] , 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.
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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.
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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."
13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated:
power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some "evidence" against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The "evidence" herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."
10. This Court has also perused the entire statements and fact that there is not even a prima facie evidence available on record implicating opposite party no. 2 to the said incident. Accordingly in absence of any cogent evidence implicating opposite party no. 2, application under Section 319 Cr.P.C. Could not have been allowed.
11. In light of the above, this Court does not find any infirmity in the impugned order dated 20.03.2025 passed by learned IVth Additional Sessions Judge, Bahraich in Sessions Trial No. 300 of 2018, arising out of Case Crime No. 265 of 2018, under Section 302 and 201 IPC, Police Station Motipur, District Bahraich.
12. This revision being devoid of merits, deserves to be dismissed and is hereby dismissed.
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(Alok Mathur, J.) Order Date :- 2.5.2025 Virendra