Allahabad High Court
Smt. Om Wati vs State Of U.P. And 5 Ors. on 8 August, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL REVISION DEFECTIVE No. - 637 of 2019 Revisionist :- Smt. Om Wati Opposite Party :- State Of U.P. And 5 Ors. Counsel for Revisionist :- Prem Babu Verma,Anita Singh,Nirmla Kumari Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Heard Ms. Anita Sigh, learned counsel for the revisionist and Sri Amit Kumar Singh, learned A.G.A. appearing for the State.
As per the report of the Stamp Reporter dated 06.08.2019, the appeal is reported to be beyond time of 55 days.
The cause shown in the delay condonation application in filing the appeal is found to be sufficient. The delay in filing the appeal is condoned and the delay condonation application is allowed.
The instant criminal revision has been preferred against the judgment and order dated 6.3.2019 passed by Additional Session Judge, Court NO.10, Agra in S.T. No. 413 of 2012 arising out of Case Crime NO. 7 of 2010 under sections 323, 504, 147, 148, 354 and 376/511 IPC whereby the application of the revisionist under section 319 Cr.P.C. has been rejected It is argued by the learned counsel for the revisionist that the trial court has passed the impugned order dated 6.7.2019 whereby it has rejected the application which was moved by the informant of this case for summoning Komal Singh as co-accused to face trial in the present case along with other co-accused because the name of the said Komal Singh was mentioned in the application filed under section 156 (3) Cr.P.C. which was moved by the revisionist on the basis of which investigation was conducted and charge-sheet has been submitted. The Investigating Officer has deliberately omitted the name of the said accused despite the fact that he was involved in the present occurrence in which maar-peet is stated to have been done by the accused with the complainant side. It is further argued that in the statements of PW1 and PW2 Omvati and Bhagat Singh the name of Komal Singh has appeared as one of the persons who had also beaten up the complainant side with lathis but even then the trial court has ignored the said statement and has erroneously dismissed the said application holding that the entire prosecution evidence has been closed and the matter is listed for final hearing. Therefore, the said order should be set aside and Komal Singh should be directed to appear and face trial with other accused.
Learned A.G.A. has opposed the prayer for summoning Komal Singh and has argued that in the statement of PW1 and PW2 no specific role has been assigned to the said person Komal Singh to have beaten the complainant side. Moreover, the trial court has recorded in the impugned order that no injury memo has been filed from the side of the complainant to prove that any injuries were caused to the complainant side by the accused person.
I have gone through the FIR. According to it the occurrence is stated to have taken place on 04.08.2008 at about 9.00 A.M. when the informant and his son and daughter were alone in the house, all the accused namely, Mukesh, Brajesh, Pranveer and Satyavir Singh came there with a common object of raising wall on the land which belonged to the complainant side and when from the complainant side the said encroachment was opposed, the accused Mukesh started beating with lathi, hands and fists. The informant's son had received injury on his head and accused Pranveer had dragged her daughter Dharamwati with an intention to molest her. After investigation, the police has submitted charge-sheet against the accused Mukesh, Brajesh, Praveen and Satyaveer and did not find the case proved against Komal Singh. Thereafter, the informant has moved an application under section 319 Cr.P.C to get Komal Singh summoned to face trial with other co-accused persons. The trial court has recorded in the impugned order that the statements of all the witnesses of fact have already been recorded and prosecution evidence has been closed and the case is listed for final argument and at this stage the said application has been moved which is not in accordance with law as has been laid -down in Michel Makendo vs. CBI and others, 2000(2) JIC, 5 and has dismissed the said application.
I have gone though the statement of the two witnesses namely Omwati and Bhagat Singh, both of them have taken the name of Komal Singh being involved in the present case with other co-accused but no specific role has been assigned as to whom he has caused injuries. Therefore, relying upon the law laid down in the Hardeep Singh's case, I am of the opinion that the evidence on record is not of such gravity/nature that Komal Singh should be summoned as co-accused in this case. For summoning an accused to face trial as co-accused with other persons who are facing trial, is possible only when the evidence is found on record of such gravity that there would be strong possibility of the said accused to be convicted. But in the present case I do not find the evidence relied upon by revisionist to be of such gravity nor could there be strong possibility of conviction of the said accused who has been sought to be summoned if the said evidence is left unrebutted.
Law for summoning the accused under Section 319 Cr.P.C. has been laid down in Hardeep Singh Vs. State of Punjab and others (2014 3 SCC 92), paragraph nos. 105 and 106 of the said judgment are as follows:-
"105- 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.
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."
In view of above proposition of law, I do not find any error in the impugned order of the trial court and the revision deserves to be dismissed and is accordingly dismissed.
Order Date :- 8.8.2019 AU