Allahabad High Court
Ajwar vs State Of U.P. And 3 Others on 8 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:110824 Reserved on: 31.05.2024 Delivered on: 08.07.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 5780 of 2023 Revisionist :- Ajwar Opposite Party :- State of U.P. And 3 Others Counsel for Revisionist :- Dharmendra Kumar Dwivedi, Ram Raksha Tiwari Counsel for Opposite Party :- G.A., Kamal Kishor MIshra Hon'ble Rajeev Misra,J.
1. Challenge in this criminal revision is to the order dated 09.10.2023 passed by Additional Sessions Judge/Special Judge (E.C. Act), Court No. 2, Meerut, in Sessions Case No. 1126 of 2020 (State Vs. Abubuquar and others), under sections 147, 148, 149, 302, 307, 352, 504, 34 IPC, Police Station-Mundawali, District-Meerut, whereby the application dated 25.7.2023 under Section 319 Cr. P. C. filed by the prosecution/first informant (paper No. 95 Kha-1) for summoning the prospective accused i.e. named but not charge sheeted has been rejected by Court below.
2. Perused the record.
3. I have heard Mr. Ram Raksha Tiwari, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Kamal Kishor Mishra, the learned counsel representing opposite parties 2, 3 and 4.
4. Record shows that in respect of an incident, which is alleged to have occurred on 19.05.2005, a prompt F.I.R. dated 19.05.2005 was lodged by first informant Ajwar the revisionist (herein) and was registered as Case Crime No. 0126 of 2024, under sections 147, 148, 149, 352, 302, 307 and 504 I.P.C., P.S. Mundawali, District Meerut. In the aforesaid F.I.R. 10 persons namely Nazim, Abubuquar, Wasim, Aslam, Gayur, Nadin, Hamid, Akram, Kadir and Danish have been nominated as named accused.
5. The gravamen of the allegations made in the FIR is to the effect that when first informant along with his son Mohd. Khalik as well as Abdul Majid Son of Ajwar, Asjad Son of Matloob, Fahimuddin Son of Alauddin, Abdulla Son of Jamaluddin, Ayub Son of Matloob, Matloop Son of Mustaq and Munauvar Son of Matloob were chatting in front of the house of Matloob, then suddenly named accused came on the spot and made indiscriminate firing resulting in the death of Abdul Khalik and Abdul Majid Sons of first informant Ajwar, whereas Asjar sustained grievous injuries. Apart from above, the FIR also records that first informant also sustained injuries.
6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. He first visited the place of occurrence and thereafter, recovered the dead bodies of deceased. This was followed by the inquest of the bodies of deceased. Thereafter, the dead bodies of deceased were dispatched for postmortem on 20.5.2005. In the opinion of the Autopsy Surgeon, who conducted autopsy of the body of deceased Abdul Khalik, the cause of death of deceased is carnio cerebral damage as a result of ante mortem fire arm injury, which is sufficient to cause death in ordinary course of nature. The Autopsy Surgeon found following ante mortem injuries on the body of aforesaid deceased:-
1. A fire arm entry wound measuring 1 cm x 1 cm in cranlal cavity deep was present over back of head in mid line 8 cm from right ear & 162 cm above to the right heel of the sole, Brain was protruding from the defect. The margin were inverted contused & there was small amount of blackening around the defect. Then was no burning of skull hair. The defect passes through the upper part of occipital bone, than lacerating the brain matter where a projectile was found at the right side of posterior cranial fossa. The direction of wound was from back to front and little to the right.
2. GSR Sample from right palm left palm head entry wound wound a prolectile recovered taken in separate boxed sealed and handed over to CP on duty.
7. Similarly the post mortem of the body of another deceased Abdul Mazid was also conducted on the same day i.e. 20.05.2005. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of aforesaid deceased, the cause of death of aforementioned deceased is shock and haemorrhage as a result of ante mortem injuries caused by fire arm. The Autopsy Surgeon found following ante mortem injuries on the body of this deceased:-
1. A lacerated wound 4 cm x .5 cm x scalp deep on Lt. Parietal of head ahead 10 cm above Lt. ear. Adv. x-ray Skull/NCCT head KUO.
2. A Abrasion 4 cm x 2 cm on Lt. knee.
3. Multiple Abrasion 2 cm x .2 cm and 1.5 cm x 1 cm over Lt. palm on anterior aspect of left hand.
4. Bruse Abrasion on Lt. Arm Region 1 cm x 1 cm
8. Investigating Officer, upon completion of preliminary exercise as noted above and other necessary formalities, proceeded to examine the veracity of the allegations made in the F.I.R. as well as the complicity of the named accused in the crime in question. He, accordingly, examined the first informant Ajwar and the following witnesses namely - (1) Abdulla, (2) Asjad, (3) Fahemuddin, (4) Ayub, (5) Matloob, (6) Munauvar, (7) Mustajab, (8) Masroof, (9) Matloob, (10) Masroof Ali, (11) Mohd. Javed, (12) Sajid and (13) Azhar, under Section 161 Cr.P.C.
9. On the basis of above and other material collected by him during course of investigation as well as the mitigating circumstances that emerged during course of investigation, he came to the conclusion that complicity of all the named accused in the F.I.R. is not established in the crime in question. He, however, submitted the police report dated 23.6.2020 under Section 173 (2) Cr. P. C., whereby named accused Nazim, Abubaqar, Wasim, Aslam, Gayur, Nadim and Kadir and not named accused Niyaz were charge sheeted under Sections 147, 148, 149, 352, 302, 307, 504, 34 IPC, whereas the other not named accused i.e. Hamid Akaram and Danish were exculpated.
10. Upon submission of aforementioned police report, cognizance was taken upon same by the Chief Judicial Magistrate, Meerut in exercise of jurisdiction under Section 190(1)(b) Cr.P.C., vide Cognizance Taking Order dated 9.7.2020. However, as offence complained of is exclusively triable by the Court of Sessions, therefore, the Chief Judicial Magistrate, Meerut in accordance with the mandate of Section 209 Cr. P. C., committed the case to the Court of Sessions. Resultantly, Sessions Case No. 1126 of 2020 (State Vs. Abubuquar and others) under Sections 147, 148, 149, 302, 307, 352, 504/34 IPC, P.S. Mundali, District Meerut, came to be registered.
11. The concerned Sessions Judge proceeded with the trial. In compliance of Section 211 Cr.P.C., he framed charges against the charge sheeted accused, who denied the same and demanded trial. Resultantly, the trial commenced.
12. Prosecution, in discharge of it's burden to bring home the charges so framed against charge sheeted accused, adduced three prosecution witnesses upto this stage i.e. P.W. 1 Ajwar (first informant), P.W. 2 Abdullah and P.W. 3 Asjad.
13. After the statement-in-chief/examination-in-chief of aforementioned witnesses was recorded, the prosecution/first informant filed an application dated 25.7.2023 under Section 319 Cr.P.C. praying therein that since as per the depositions of P.W. 1, P.W. 2 and P.W. 3 examined upto this stage, the complicity of the prospective accused (named but not charge sheeted) i.e. opposite parties 2, 3 and 4 (herein) is also established in the crime in question, therefore, they be also summoned to face trial in Sessions Trial No. 574 2020. This application came to be registered as (paper No. 95 Kha-1).
14. Aforementioned application under Section 319 Cr. P. C. filed by the prosecution/first informant for summoning the prospective accused was opposed by the prospective accused themselves. They, accordingly, filed an objection (paper No. 97-Kha). In view of above application under Section 319 Cr. P. C. filed by the prosecution/first informant became a contested application. Accordingly, Court below examined the allegations made in the application under Section 319 Cr.P.C. in the light of the material on record and evaluated the same by taking into consideration the material on record as well as the depositions of the prosecution witnesses i.e. PW-1, PW-2 and PW-3 examined upto this stage.
15. Having undertaken the aforementioned exercise, Court below came to the conclusion that no prima facie case for summoning the prospective accused is made out. Accordingly, Court below rejected the aforementioned application under Section 319 Cr.P.C. filed by the prosecution/first informant, vide order dated 09.102023.
16. Thus, feeling aggrieved by the order dated 09.10.2023 passed by Court below, the revisionist, who is the first informant, has approached this Court by means of present criminal revision.
17. Perusal of the order impugned dated 9.10.2023 passed by Court below will go to show that Court below has rejected the application under Section 319 Cr.P.C. filed by the prosecution/first informant on he following grounds:-
(1) The medical evidence does not support the ocular version of the occurrence as unfolded in the F.I.R., inasmuch as there is nothing on record to show that the first informant sustained injuries. (2) No specific role has been assigned to the prospective accused i.e. named but not charge sheeted accused namely opposite parties 2, 3 and 4 (herein) Consequently, nothing more than mere complicity in the crime in question has emerged. (3) Lastly, the independent witnesses examined by the Investigating Officer under Section 161 Cr. P. C. during course of investigation have not implicated the prospective accused in the crime in question, inasmuch as their presence was denied by them at the time and place of occurrence.
18. Learned counsel for revisionist submits that order impugned in present criminal revision is manifestly illegal and therefore liable to be set aside by this Court. Refering to the depositions of PW-1, PW-2 and PW-3 which are on record as Annexure-12 to the affidavit filed in support of the present criminal revision, he submits that as per the depositions of aforementioned witnesses before Court below, the complicity of the prospective accused in the crime in question is fully established. On the above premise, he, therefore, submits that a prima-facie case is clearly made out for summoning the prospective accused.
19. It is then contended that the prospective accused i.e. opposite parties 2, 3 and 4 herein were exculpated by the Investigating Officer in the police report dated 23.6.2020 submitted under Section 173 (2) Cr.P.C. primarily on the ground that the independent witnesses examined by the Investigating Officer have not implicated the prospective accused (named but not charge sheeted) in the crime in question. Admittedly, the statement-in-chief/examination-in-chief of the prosecution witnesses i.e. PW-1, PW-2 and PW-3 have been recorded. As such, their depositions before Court below fall within the realm of legal evidence. As such, the credibility/reliability of the same could not be doubted with reference to the material collected by the Investigating Officer during the course of investigation.
20. In view of above, weight-age was required to be given to the evidence which has emerged during the course of trial and not the material which was collected by the Investigating Officer during the course of trial. As per the deposition of the prosecution witnesses examined upto this stage, i.e. P.W.-1, P.W.-2 and P.W.-3, the complicity of the prospective accused is fully established in the crime in question, therefore, Court below ought to have summoned the prospective accused. It is thus urged that in view of above, the conclusion drawn by the Court below cannot be sustained in law and fact. Consequently, the order impugned is liable to be set aside by this Court.
21. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Kamal Kishor Mishra, the learned counsel representing opposite parties 2, 3 and 4 have vehemently opposed the present criminal revision. They submit that order impugned in present criminal revision is perfectly just and legal. No illegality has been committed by Court below in passing the order impugned. As such, present criminal revision is liable to be dismissed.
22. Learned A.G.A. has referred to the statements of aforementioned prosecution witnesses recorded under Section 161 Cr.P.C. Drawing a parallel with their statements recorded under Section 161 Cr.P.C. and their depositions before Court below, he submits that the prosecution witnesses in their depositions before Court below have not stated anything new than what was stated by them in their depositions before Court below. The independent witnesses examined by the Investigating Officer during course of investigation namely Mustajab, Masroob, Matloob, Masroof Ali, Mohd. Javed, Sajid and Azhar have not implicated the named but not charge sheeted accused i.e. Hamid, Akram and Danish, opposite parties 2, 3 and 4 herein, in the crime in question. Up to this stage, no such evidence has emerged on the basis of which, the complicity of the named but not charge sheeted accused i.e. opposite parties 2, 3 and 4 herein can be said to be established in the crime in question. As such, no prima-facie case was made out so as to summon the prospective accused. The Court below has thus exercised it's jurisdiction diligently and not in a casual and cavalier fashion. Consequently, Court below has not committed a jurisdictional error in passing the order impugned. As a result, the present criminal revision is liable to be dismissed by this Court.
23. Mr. Kamal Kishor Mishra, the learned counsel representing opposite parties 2, 3 and 4 has also opposed the present criminal revision. He has, however, adopted the arguments raised by the learned A.G.A.
24. Having heard Mr. Ram Raksha Tiwari, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, Mr. Kamal Kishor Mishra, the learned counsel representing opposite parties 2, 3 and 4 and upon perusal of record, this Court finds that the primary issue, which arises for determination in present revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C.? As a corollary to above, Court will also have to consider;-Whether the order impugned is within the established parameters or not?
25. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by the Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Five Judges Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Five Judges Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra Yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177,
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xii) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17 (xvi) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xvi) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323, (xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301 (xx) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xxi) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xxii) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh. (xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537 (xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.
(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375 (xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172 (xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
26. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 09.10.2023 passed by Additional Sessions Judge/Special Judge (E.C. Act), Court No. 2, Meerut, in Sessions Case No. 1126 of 2020 (State Vs,. Abubaqar and others) under sections 147, 148, 149, 302, 307, 352, 504 and 34 IPC, Police Station-Mundawali, District-Meerut, whereby the application under Section 319 Cr.P.C., filed by the prosecution/first informant to summon the prospective accused i.e. opposite parties 2, 3 and 4 has been rejected.
27. 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.
28. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).
29. 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).
30. A prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness without getting his examination-in-chief recorded, vide Five Judges Bench judgment in Hardeep Singh (Supra).
31. The Court while summoning a prospective accused must come to the conclusion that a prima-facie case for summoning a prospective accused is made out and in this regard, the Court must record it's satisfaction in consonance with the observation made in paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra).
32. Though in view of the law laid down by the Five Judges Bench in Hardeep Singh (Supra) that a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness but in case, if the statement of the witness, who have deposed before Court below was also recorded under Section 161 Cr.P.C. then in such a circumstance, the Court must draw a parallel in between the deposition of the witness as well as his statement under Section 161 Cr.P.C. to find out whether something new has emerged in the deposition or not, vide Brijendra Singh (Supra).
33. The Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as it is a relevant material, vide Brijendra Singh (Supra).
34. A prospective accused can be summoned only if, an inference of guilt of the accused can be drawn as per the material on record, vide Brijendra Singh (Supra).
35. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).
36. A prospective accused should not be summoned by a Court by exercising it's jurisdiction in a casual and cavalier fashion but diligently, vide S Mohammad Ishpahani (Supra).
37. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence had emerged against a prospective accused and not merely on the basis of his complicity in the crime in question, vide S Mohammad Ishpahani (Supra).
38. In the judgments referred to above, there is a common thread that the Court can scrutinize the evidence/material on record while exercising power under Section 319 Cr.P.C.
39. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly, vide paragraph 37 of judgement in Manjeet Singh (Supra).
40. 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) and Vikas Rathi (Supra).
41. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh (Supra) requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
42. 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.
43. The reference made by the Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
44. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him, vide Yashodhan Singh and Others (Supra).
45. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 IPC and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C.
46. Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1, PW-2 and PW-3, the opposite parties 2, 3 and 4 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 fashion."
47. Before proceeding to examine and evaluate the depositions of PW-1, PW-2 and PW-3 before Court below and the other material collected by the Investigating Officer during course of investigation, in the light of law laid down by the Supreme Court as noted herein above, it may be notice that a Five Judges Bench of the Supreme Court in Hardeep Singh (Supra) has laid down the parameters regarding exercise of jurisdiction under Section 319 Cr.P.C., which have substantially not yet been altered or modified.
48. The Bench has observed that a prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness alone and the Court need not wait for the entire prosecution evidence to be recorded. In the case in hand, the application under Section 319 Cr.P.C. for summoning the prospective accused i.e. the revisionist was filed after the statement-in-chief/examination-in-chief of PW-1 Ajwar (first informant), PW-2 Abdulla and PW-3 Asjad was recorded and not after the entire prosecution evidence had been recorded. In view of the law laid down by the Apex Court as noted herein above, no illegality can be said to have been committed by Court below in deciding the application under Section 319 Cr.P.C. in the light of the depositions of aforementioned three prosecution witnesses of fact and not after the entire prosecution evidence was recorded.
49. It has also been laid down by the Bench in aforementioned judgment that a prospective accused can be summoned only after the Court records it's satisfaction to the effect that a prima-facie case for summoning the prospective accused is made out. What will be the nature of satisfaction that is required to be observed by a Court before summoning a prospective accused is no longer shrouded in obscurity but stands crystallized in paragraph 106 of the report. For ready reference, the same is extracted herein under:-
"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 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."
50. The Court has now to consider as to whether the satisfaction, which is required to be observed by a Court before summoning a prospective accused could have been observed by Court below on the basis of the depositions of PW-1 Ajwar (first informant), PW-2 Abdullah and PW-3 Asjad. Upon evaluation of the depositions of PW-1, PW-2 and PW-3, this Court finds that the statements of PW-1, PW-2 and PW-3 were also recorded under Section 161 Cr.P.C. However, when a parallel is drawn in between the statements of aforementioned witnesses recorded under Section 161 Cr.P.C. and their depositions before Court below this Court finds that nothing new has been stated by the aforementioned witnesses in their depositions before Court below. On the same material, the prospective accused i.e. opposite parties 2, 3 and 4 herein, who are named in the FIR were exculpated as the independent witnesses examined by the Investigating Officer under Section 161 Cr.P.C., the complicity of the opposite parties 2,3 and 4 was not found to be established in the crime in question.
51. From the perusal of depositions of PW-1, PW-2 and PW-3, it is apparent that nothing new has been stated by aforementioned witnesses than what was stated by them in their statements under Section 161 Cr.P.C.. As such, the caution given by the Apex Court in the case of Brijendra Singh (Supra) to the effect that in case, a witness has also been examined under Section 161 Cr.P.C. then the Court should find out whether something new has emerged in this deposition before Court below and only thereafter proceed to allow the application under Section 319 Cr.P.C. Since the aforesaid caution given by the Apex Court is not satisfied in the present case coupled with the fact that the statement of aforementioned witnesses recorded under Section 161 Cr.P.C. stood belied by the statements of the independent witnesses examined under Section 161 Cr.P.C., therefore, no illegality can be said to have been committed by Court below in passing the order impugned.
52. It is thus apparent that the prospective accused i.e. opposite parties 2, 3 and 4 herein were named in the FIR but not charge sheeted. The prosecution has filed an application under Section 319 Cr.P.C. after the statement-in-chief/examination-in-chief of three prosecution witnesses of fact i.e. PW-1 Ajwar (first informant), PW-2 Abdullah and PW-3 Asjad was recorded on the ground that as per the depositions of aforementioned witnesses, the complicity of the prospective accused i.e. opposite parties 2, 3 and 4 herein also stands established in the crime in question. However, the statements of aforementioned witnesses were also recorded under Section 161 Cr.P.C., which is similar to their depositions before Court below. As such, nothing new has emerged in the depositions of PW-1, PW-2 and PW-3 before Court below than what was stated by them in their previous statements recorded under Section 161 Cr.P.C. The veracity of the statements of aforementioned witnesses recorded under Section 161 Cr.P.C. stood belied by the statements of the independent witnesses examined under Section 161 Cr.P.C. namely Mustajab, Masroob, Matloob, Masroof Ali, Mohd. Javed, Sajid and Azhar, who have not implicated the prospective accused in the crime in question as their very presence at the time and place of occurrence was denied by them. As such, up to this stage, the conclusion drawn by Court below to reject the application filed by the prosecution/first informant under Section 319 Cr.P.C. is in consonance with the directions issued by the Apex Court in the case of Brijendra Singh (Supra) and S. Mohammad Ishpahani (Supra).
53. However, subsequently, the Apex Court in the case of Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, has held that in a case under Section 149 IPC, once the presence of prospective accused stands emerged as per the depositions of the prosecution witnesses examined up to the stage of the application under Section 319 Cr.P.C. then in such a circumstance, no other material is required to be looked into for ascertaining the innocence of the prospective accused. As such, the aforementioned judgment has carved out an exception to the ratio laid down by the Apex Court in the Five Judges Bench judgment in Hardeep Singh (Supra), Brijendra Singh (Supra) and S. Mohammad Ishpahani (Supra).
54. As per the depositions of PW-1, PW-2 and PW-3 recorded before Court below, the presence of prospective accused i.e. opposite parties 2, 3 and 4 herein at the time and place of occurrence is fully established. In view of above, the finding returned by Court below qua the innocence of prospective accused that as per the statements of independent witnesses examined during the course of investigation by the Investigating Officer is of no consequence, so far as the summoning of the prospective accused under Section 319 Cr.P.C. is concerned.
55. In view of above, the Court below has committed a jurisdictional error in passing the order impugned inasmuch as, the Court below has clearly ignored the ratio laid down by the Apex Court in the case of Sandeep Kumar (Supra). The Court below has thus exercised it's jurisdiction with material irregularity, which has vitiated the order impugned.
56. As a result, the present criminal revision succeeds and is liable to be allowed.
57. It is, accordingly, allowed.
58. The order impugned dated 09.10.2023 passed by Additional Sessions Judge/Special Judge (E.C. Act), Court No. 2, Meerut, in Sessions Case No. 1126 of 2020 (State Vs,. Abubuquar and others), under sections 147, 148, 149, 302, 307, 352, 504, 34 IPC, Police Station-Mundawali, District-Meerut, is, hereby, set aside.
59. The Court below shall pass a fresh order in the light of the observations made herein above within a period of one month from the date of presentation of a certified copy of this order.
60. Considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 08.07.2024 Vinay