Allahabad High Court
Prashant Tiwari Son Of Late Harsh Kumar ... vs State Of Uttar Pradesh And Desh Deepak ... on 11 June, 2007
Author: Vinod Prasad
Bench: Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. Challenge in this application is the impugned order dated 4.3.2006 passed by the Additional Sessions Judge/Fast Track Court No. 4 Firozabad in ST. No. 524/05 State v. Chanu alias Jitendra Saini Under Section 384, 342, 302/34 IPC, P.S. North, district Firozabad. By the impugned order the trial Judge has refused the prayer of the informant applicant Prashant Tiwari to summon Deo Deepak Yadav as an accused in the case.
2. In short, the prosecution allegations are that on 26.8.2005 at about 6 P.M. accused persons Mukesh Gupta, Rishi Gupta, Chanu Saini and Desh Deepak Yadav came armed with fire arms on the transport company of the informant applicant Prashant Tiwari situated at Shiv Nagar Jalesar Road. P.S. North, district Firozabad for squeezing illegal money and started demanding Rs. 20,000/- which was denied by the informant applicant. On this male factors caught up the informant applicant and started proceeding towards the house of accused Mukesh Gupta. Call for help by the informant attracted his father Harsh Kumar Tiwari, uncle Shiv Shankar Tiwari, Naveen Sharma and Prakash Bhardwaj and they all reached at the scene of the incident and chased the accused persons to save the informant who by that time was dragged near the house of accused Mukesh Gupta Accused persons left the informant applicant and climbed on the door of the house of accused Mukesh Gupta. It is alleged that three accused Rishi Gupta, Desh Deepak Yadav and Chanu Saini instigated Mukesh to shoot at the prosecution side on which Mukesh Gupta fired at the father of the informant Marsh Kumar Tiwari who sustained firearm injuries and fell down on the road. Accused persons thereafter made their escaped good firing in the air. Injured lather Harsh Kumar Tiwari was rushed to the District Hospital Firozabad in serious condition but he was referred Agra by the doctors; Injured father could not reach Agra and lost his life in the way who was brought back to the District Hospital Firozabad. The informant Prashant Tiwari got the FIR scribed through Gopal Tiwari and lodged it at the Police Station North, district Firozabad on the same day at about 8.15 P.M. as Crime No. 292/05 Under Section 384, 342 302 IPC.
3. The Investigating Officer who conducted the investigation recorded the statement of informant applicant who supported his version of FIR in toto. However, three other eyewitnesses Shiv Shankar Tiwari, Navin Sharma and Prakash Bhardwaj in their statements Under Section 161 Cr. P.C. did not support the prosecution case so far as respondent accused Desh Deepak Yadav is concerned and did not named him at all as one of the accused in the said incident.
4. After investigation charge sheet was submitted in the court against accused Charu alias Jitendra Saini and the two other accused persons Rishi Gupta and Manoj Gupta who could not be apprehended were charge sheeted as absconders. No charge sheet however was filed against Desh Deepak Yadav respondent No. 2.
5. After the case of the accused Chanu alias Jitendra Saini was committed to the court Sessions as S.T. No. 524/05 State v. Chanu alias Jitendra Saini statement of informant applicant Prashant Tiwari was recorded. Informant applicant in his statement before the court also named Desh Deepak Yadav respondent No. 2 as an accused of the said crime. After the statement of the informant applicant was recorded an application was filed by the prosecution for summoning Desh Deepak Yadav as an accused. The said application was rejected by Additional Sessions Judge/ Fast Track Court No. 4 by passing the impugned order on 4.3.2006 which liens under challenged in the instant application.
6. Sri Shashidhar Pandey Advocate has filed counter affidavit on behalf of the respondent No. 2 accused Desh Deepak Yadav to which rejoinder affidavit has been filed by the learned Counsel for the applicant.
7. I have heard Sri K.K. Arora learned Counsel in support of this application and Sri Satish Trivedi learned Senior counsel assisted by Sri Shashidhar Pandey on behalf of the accused respondent No. 2.
8. Learned Counsel for the applicant contended that the impugned order refusing to summon Desh Deepak Yadav by trial court is wholly unjustified as he was named as culprit who came to the transport company of the Applicant informant and demanded illegal money and on refusal by the informant he was dragged towards the house of one of the accused Mukesh Gupta. At the house three persons instigated and on their instigation. Mukesh Gupta the absconding accused had fired at the father of the informant who lost his life because of the sustained gun shot injury. He further contended that this version of the FIR was well supported by the informant in his statement given before the court during the trial and therefore the trial judge committed an error by not summoning the respondent Desh. Deepak Yadav.
9. Learned Counsel further contended that reason given by the trial Court for not summoning Desh Deepak Yadav is that the deceased and the witnesses Shiv Shankar, Navin Sharma were accused in a case Under Section 147. 148, 149 304 IPC in which Desh Deepak Yadav was assaulted. I earned counsel further submitted that the application for not summoning Desh Deepak Yadav was wholly insufficient as that was the defence of the accused used which could not have been taken into the consideration while deciding the application Under Section 319 Cr. P.C. Learned Counsel contended that the police had not charge sheeted Desh Deepak Yadav on the above reason. He further contended that there was sufficient evidence on record for summoning Desh Deepak Yadav and therefore the impugned order be set aside.
10. Learned Counsel for the respondent No. 2 accused on the other hand contended that during the investigation the police had found that Desh Deepak Yadav; has been wrongly nominated and therefore it has not charge sheeted him. He has further submitted that the trial court was justified in rejecting the prayer of the applicant for not summoning the accused Desh Deepak Yadav because he has been falsely implicated. They further contended that the power Under Section 319 Cr. P.C. is an extra ordinary power which should be exercised only in the interest of justice and in the present case there was no reason for summoning respondent No. 2 as an accused. He further submitted that the impugned order is absolutely justified and does not call for any interference by this Court.
11. I have considered the submissions raised by both the sides.
12. The facts of the case are that four accused persons reached the transport company of the applicant and demanded illegal money and on refusal of which they firstly dragged the informant to the house of co-accused and then caused fatal injury to the father of the applicant. In the statement recorded during the trial the informant has clearly mentioned that the respondent No. 2 was one of the accused who had participated in the incident. In his statement during the trial, which has been annexed as anexure No. 8, it is clearly mentioned that respondent No. 2 Desh Deepak Yadav in the company of Mukesh Gupta Rishi Gupta and Chanu Saini came to the transport company of the informant armed with firearms and demanded Rs. 20,000/- as illegal money and on his refusal all the accused persons dragged him to the house of Mukesh Gupta. Subsequent to the dragging Desh Deepak Yadav also instigated Mukesh to shoot at the prosecution side. From the evidence of the informant it is thus clear that the respondent No. 2 accused Desh Deepak Yadav also participated in the incident alongwith the other accused persons. His presence on the spot cannot be doubted. At this stage of the trial the statement of the informant cannot be disbelieved. Me has supported the same version, which he had mentioned in the FIR. Merely because there was previous enmity trial court be not debarred from summoning any body as an accused Under Section 319 Cr. PC. In the aforesaid section the trial court has been conferred with the power to try those persons also as an accused who could be tried alongwith the accused who are already being tried. The scope of power Under Section 319 Cr. P.C. has been examined by Apex Court many times. Learned Counsel for the respondent accused has relied upon the judgment of Michael Machado v. CBI reported in 2000 SCC (Crl.) 609. Relying upon the aforesaid decision he has contended that impugned order is absolutely justified. In my opinion the said judgment is of no help to the accused respondent. In the aforesaid judgment 49 witnesses were already examined during trial who had not said even a single word against the accused Michael Machado and that from the 50th witness his role was disclosed. Apex Court was of the opinion that in such fact the role anointed on the accused was wholly insufficient to summon him Under Section 319 Cr. P.C. The facts of that case were absolutely peculiar. In the present case the first witness of the prosecution, who is the informant and eyewitness has named the respondent No. 2 as an accused and has given evidence against him of participating in the crime alone with other accused persons with a common intention Under Section 34 IPC. In para 12 of the aforesaid judgment apex court has held as follows:
A Judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.
13. Coming to the another case cited the bar is 2004 SCC (Crl.) 2093 Krishnappa v. State of Karnataka. In the aforesaid case, the apex Court has said that there was not justification for the High Court to interfere in the discretion exercised by the Magistrate. It has been held that while exercising the power Under Section 319 Cr. P.C. relevant factors have to he kept in mind and the order should not be passed mechanically. In the aforesaid also 17 witnesses were already examined and the incident was of the year 1993. The order Under Section 319 Cr. P.C. was passed in year 2000. In such a view the Apex Court was of the opinion that the summoning of the accused Under Section 319 Cr.P.C. was not called for. The aforesaid two judgments are entirely different. In the present case the incident occurred on 26.8.2005 and the impugned order was passed on 4.3.2006 just after a gap of 7 months, which is not much. Further the role of the applicant is very clear.
14. In view of what I have stated above, I am of the opinion that since the respondent accused is named as culprit in the statement given in the court by informant which cannot be disbelieved and he has been appointed the role of dragging the deceased to the house of the co accused for non-fulfilment of illegal demand, in my view summoning of the applicant was desirable. Consequently trial court committed an error in passing the impugned order of not summoning the respondent No. 2 as an accused in the case. I am not fortified in my view by judgment rendered by Apex Court Lok Ram v. Nihal Singh. In the aforesaid judgment it has been held by the Apex court as follows:
19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.
15. Further in the case of Municipal Corporation Delhi v. Ram Kishan Rohadgi and Ors. it has been held by the Apex Court as follows:
11. "On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge-sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision reported in Sohan Lal and Ors. v. State of Rajasthan ) the position of an accused who has been discharged stands on a different footing.
12. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused had committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word 'evidence' in Section 319 contemplates that evidence witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesiad provision, it is specifically made clear that it will presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which inquiry trial was commenced. That would show that by virtue of Sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.
13. It is to be noted that the trial court rejected the application only on the ground that the complainant was an interested witness and, therefore, sufficient ground did not exist to take action against the accused persons. As noted above though the power is extraordinary and is used only if compelling reasons exist: the factor which weighed is that the trial court does not appear to be relevant and, therefore the High Court has rightly interfered in the mat, The impunged judgment does not suffer from any infirmity. However we make it clear that we have not expressed any opinion on merits of the case. Since the matter is pending long the trial court is requested to complete the trial as early as possible.
16. Since in the present case the role of respondent No. 2 Desh Deepak Yadav is specific and he is one of the accused in this case therefore, summoning was desirable and the impugned order passed by trial judge dated 4.3.2006 does not hold good and is hereby set aside.
17. This application is allowed with the aforesaid direction.