Allahabad High Court
K.B. Singh General Manager vs State Of U.P. And 3 Others on 20 February, 2019
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on:- 09.01.2019 Court No. 70 Judgment Delivered on:- 20.02.2019 Case :- MATTER UNDER ARTICLE 227 No. - 7350 of 2016 Petitioner :- K.B. Singh General Manager Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Madhur Prakash,Sri Gajendra Pratap Counsel for Respondent :- C.S.C. connected with Case :- MATTER UNDER ARTICLE 227 No. - 7512 of 2016 Petitioner :- J.P. Singh. Dy. General Manager (Const.) Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Madhur Prakash Counsel for Respondent :- C.S.C.,Anurag Sharma Hon'ble Sanjay Kumar Singh,J.
1- Heard Sri Gajendra Pratap learned senior counsel assisted by Sri Madhur Prakash learned counsel for the applicant, Sri Anurag Sharma learned counsel for the opposite party no. 2 to 4 and learned A.G.A. for State in both the aforesaid matters and perused the record with assistance of learned counsels for the parties.
2- The first Matter Under Article 227 of the Constitution of India No. 7350 of 2016 has been filed by the applicant K.B. Singh (General Manager) with a prayer to set aside the impugned order dated 11.06.2015 passed by Judicial Magistrate- I, Muzaffarnagar in case no. 360/09/2013 (State Vs. Chaman Singh), whereby the applicant has been summoned under Section 319 Cr.P.C to face trial under Sections 406, 409, 420, 467, 468, 471, 120B I.P.C. and order dated 09.09.2016 passed Additional Session Judge, Court No. 10, Muzaffarnagar in Criminal Revision No. 58 of 2016, whereby the revision preferred by the applicant has been dismissed by the Additional Session Judge confirming the order dated 11.06.2015 passed by Judicial Magistrate-I, Muzaffarnagar.
The second Matter Under Article 227 of the constitution of India No. 7512 of 2016 has been filed by the applicant J.P. Singh. Dy. General Manager (Const.) with a prayer to set aside the impugned order dated 11.06.2015 passed by Judicial Magistrate-I, Muzaffarnagar passed in case no. 360/09/2013, whereby the applicant has been summoned under Section 319 Cr.P.C to face trial under Sections 406, 409, 420, 467, 468, 471, 120B I.P.C. and order dated 09.09.2016 passed by Additional Session Judge, Court No. 10, Muzaffarnagar in Criminal Revision No. 58 of 2016, whereby the revision preferred by the applicant has been dismissed by the Additional Session Judge confirming the order dated 11.06.2015 passed by Judicial Magistrate-I, Muzaffarnagar.
3- Since both the aforesaid connected cases have been filed arising out of same impugned orders dated 11.06.2015 and 09.09.2016, therefore both the above cases are being decided together and common order is being passed with the consent of the learned counsel for the parties.
Basic Facts 4- The brief facts of the case as emerges on record are that the applicant K.B. Singh is General Manager (O & M) and applicant J.P. Singh is Dy. General Manager (Construction) in Gas Authority of India Limited (hereinafter referred to as GAIL) and they are presently posted at District- Guna, Madhya Pradesh. GAIL is a Government of India undertaking directly under the control of the Ministry of Petroleum & Natural Gas, Government of India. The Parliament enacted an Act known as "The Petroleum and Mineral Pipelines (Acquisition of Right of User in land) Act 1962" hereinafter referred to as "Act of 1962". A notification dated 20.04.2009 under Section 3(1) of the said Act of 1962 was issued for acquition of right of user over land specified in the notification for the purpose of laying pipelines for transportation of natural gas by GAIL.
5- By the said notification dated 20.04.2009 land measuring 0.2900 hectare of Khasra No. 354 of Khata No. 354 jointly recorded in the name of opposite party no. 2 to 4 alongwith their brothers Chaman Singh and Preetam Singh was acquired for land user. Accordingly a competent authority issued a joint notice dated 25.09.2009 to the aforesaid 5 land holders, who are real brothers informing them about the acquisition of their land under Section 3(1) of the Act of 1962 requiring them to file their objection, if any, on the said acquisition.
6- Subsequently the acquisition proceedings were finalized and after determination of compensation, settlement deed in this regard was executed on 11.05.2011. As per clause 12 of the settlement deed dated 11.05.2011, in case of joint holding, the amount of compensation would be paid to only those who after inter-se partition amongst themselves are in possession of acquired land. It is the case of applicant in both the cases that as per the aforesaid settlement deed dated 11.05.2011 only two persons namely, Preetam Singh and Chaman Singh (brothers of the opposite party no. 2 to 4) were entitle to get compensation as consequent upon the partition of joint holding among the five brothers because the acquired land fell in the share of Peetam Singh and Chaman Singh, who were also in possession over the same. After completion of aforesaid exercise, the competent authority determined the compensation amount, which was to the tune of Rs. 7,38,504/- for Chaman Singh and Rs. 4,89,996/- for Preetam Singh and paid to them accordingly.
7- In the aforesaid background of the fact opposite party no. 2 to 4 feeling aggrieved by the payment of aforesaid amount of compensation to their two brothers, Chaman Singh and Preetam Singh moved a joint application dated 28.03.2011 under Section 156(3) Cr.P.C. against their brothers Preetam Singh and Chaman Singh as well as against the aforesaid applicants and two other co-accused person, before Judicial Magistrate, Court No. 1, Muzaffarnagar with a prayer to issue direction to the police of P.S. Babri, District- Prabuddh Nagar to lodged FIR against them. The learned Magistrate passed the order dated 05.11.2012 on the aforesaid application dated 28.03.2012 of the opposite party no. 2 to 4 directing the police of concerned police station to register FIR in the matter. In compliance of the said order dated 05.11.2012 of learned Magistrate, a FIR was registered on 10.11.2012 against the 5 persons namely, Preetam Singh, Chaman Singh, K.B. Singh applicant/General Manager (O & M) of Gas Authority of India Limited, J.P. Singh applicant/Dy. General of Manager Construction, GAIL and Kamta Pal (employee of GAIL) as Case Crime No. 190 of 2012 under Sections 406, 409, 420, 467, 468, 471 and 120B I.P.C. at Police Station- Babri, District- Shamli. The investigating officer after investigating the matter submitted a chargesheet dated 20.04.2013 against the Chaman Singh (brother of the opposite party no. 2 to 4) under Sections 406, 409, 420, 467, 468, 471 and 120B I.P.C. Thereafter a separate charge sheet was also filed against Preetam Singh (brother of opposite party no. 2 to 4) on 16.08.2013. The investigating officer exonerated the other three accused persons named in the FIR i.e. applicants K.B. Singh, J.P. Singh and co-accused Kamta Pal, and investigating officer did not file charge sheet against them. Pursuant to the charge sheet dated 20.04.2013, the trial court framed charges on 08.07.2014 against the accused Chaman Singh. Thereafter the accused Chaman Singh against the order of framing charge dated 08.07.2014 by the trial court u/s 406, 409, 420, 467, 468, 471 I.P.C. filed Criminal Revision No. 3377 of 2014 before this court, which was disposed of by order dated 26.08.2014 with the finding that the charge framed under Section 409 I.P.C. in Criminal Case No. 309/9 of 2013 by the trial court against Chaman Singh is quashed and the trial court is directed to re-frame the charges in accordance with Cr.P.C.
8- Here it is relevant to mention, as stated by the applicant in paragraph 20 of the application that the trial court without complying the above order dated 26.08.2014 of this court, proceeded with trial and without re-framing charges recorded the examination-in-chief of the opposite party no. 2 Man Singh as first prosecution witness on 24.09.2014, wherein he has made an allegation that the accused Chaman Singh, Preetam Singh in collusion with Kamta Pal, J.P. Singh and K.B. Singh, who are employee and officers of GAIL grabbed the amount of compensation to the share of opposite party no. 2 to 4. It is stated by the opposite party no. 2 that in the compensation granted by Gas Authority of India Limited, the accused Chaman Singh, Preetam Singh as well as opposite party no. 2, 3 and 4 were having equal share, but no amount of compensation was given to the opposite party no. 2, 3 and 4. On the basis of aforesaid examination-in-chief/statement of a opposite party no. 2, an application dated 24.09.2014 under Section 319 Cr.P.C. was moved by the opposite party no. 2 before the trial court for summoning the officers of GAIL namely K.B. Singh (applicant), J.P. Singh (applicant) and another employee of GAIL/ co-accused Kamta Pal to face trial. The learned Judicial Magistrate-I, Muzaffar Nagar by the impugned order 11.06.2015 allowed the application dated 24.09.2014 of the opposite party no. 2 and summoned the aforesaid persons under Section 406, 409, 420, 467, 468, 471 and 120B I.P.C. to face trial.
9- As per the case of the applicant, the trial court wrongly proceeded with the trial of co-accused without complying the order dated 26.08.2014 of this court and subsequently on realizing the mistake committed by the court, a fresh charges were framed against co-accused Chaman Singh under Section 406, 409, 420, 467, 468, 471 I.P.C. on 07.05.2015. The order dated 07.05.2015 appended as annexure no. 13 to the application. Both the aforesaid applicants jointly filed Criminal Revision No. 58 of 2016 before Sessions Judge, Muzaffar Nagar against the order dated 11.06.2015 of learned Judicial Magistrate, Ist, Muzaffar Nagar, which was dismissed by order dated 09.09.2016 of Additional Session Judge, Court No. 10 Muzaffar Nagar. At the initial stage of filing the cases in hand, this court granted interim protection to the applicant Sri K.B. Singh on 22.09.2016 and to the applicant Sri J.P. Singh on 28.09.2016 directing that coercive action against the petitioner shall be kept in abeyance.
Submissions on behalf of the applicants 10- Sri Gajendra Pratap Singh, Learned Senior Advocate assailing the aforesaid impugned order dated 11.06.2015 and 09.06.2016 submitted that:-
i) The applicants who are before this court are not a competent authority for acquisition and determining the compensation under The Petroleum and Mineral Pipelines (Acquisition of Right and Rural Land) Act, 1962. In the said Act, there is provision for acquisition of right of user in land for laying pipelines for the transport of petroleum and mineral and for matter connected therewith.
(ii) It is submitted that in exercise of power of clause (a) of Section 2 of aforesaid Act of 50 of 1962, the Government of India vide notification S.O.503 dated 08.03.2008 authorized Sri Bhagwan Sagar Ojha Special Land Acquisition Officer on deputation to M/S GAIL (India) Limited as "competent authority" for laying pipelines by the M/s GAIL (India) Limited. The copy of notification dated 08.03.2008, on which learned counsel for the applicant placed reliance appended as annexure no. 1 to the application.
iii) Learned counsel for the applicant also relied upon various other provision of said Act, 1962, where the word "competent authority" has been defined and other issues relating to compensation have been dealt. The relevant provisions of Act No. 50 of 1962, on which learned counsel for the applicant placed reliance are reproduced here in below:-
Section 2. Definitions-
(a) "competent authority" means any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority under this Act and different persons or authorities may be authorised to perform all or any of the functions of the competent authority under this Act in the same area or different areas specified in the notification.
Section 3. Publication of notification for acquisition-
(1) Whenever it appears to the Central Government that it is necessary in the public interest that for the transport of petroleum 4[or any mineral from one locality to another locality pipelines may be laid by that Government or by any State Government or a corporation and that for the purpose of laying such pipelines it is necessary to acquire the right of user in any land under which such pipelines may be laid, it may, by notification in the Official Gazette, declare its intention to acquire the right of user therein.
(2) Every notification under sub-section (1) shall give a brief description of the land.
(3) The competent authority shall cause the substance of the notification to be published at such places and in such manner as may be prescribed.
Section 6. Declaration of acquisition of right of user-
(1) Where no objections under sub-section (1) of section 5 have been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under sub-section (2) of that section, that authority shall, as soon as may be either make a report in respect of the land described in the notification under sub-section (1) of section 3, or make different reports in respect of different parcels of such land, to the Central Government containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government and upon receipt of such report the Central Government shall, if satisfied that such land is required for laying any pipeline for the transport of petroleum or any mineral,] declare, by notification in the Official Gazette, that the right of user in the land for laying the pipelines should be acquired. and different declarations may be made from time to time in respect of different parcels of the land described in the notification issued under sub-section (1) of section 3, irrespective of whether one report or different reports have been made by the competent authority under this section].
(2) On the publication of the declaration under sub-section (1), the right of user in the land specified therein shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been issued under sub-section (1) of section 3 but no declaration in respect of any parcel of land covered by that notification has been published under this section within a period of one year from the date of that notification, that notification shall cases to have effect on the expiration of that period.
(3A) No declaration in respect of any land covered by a notification issued under sub-section (1) of section 3, published after the commencement of the Petroleum Pipelines (Acquisition of Right of User in Land) Amendment Act, 1977, shall be made after the expiry of three years from the date of such publication.
(4) Notwithstanding anything contained in sub-section (2), the Central Government may, on such terms and conditions as it may think fit to impose, direct by order in writing, that the right of user in the land for laying the pipelines shall, instead of vesting in the Central Government vest, either on the date of publication of the declaration or, on such other date as may be specified in the direction, in the State Government or the corporation proposing to lay the pipelines and thereupon the right of such user in the land shall, subject to the terms and conditions so imposed, vest in that State Government or corporation, as the case may be, free from all encumbrances.
Section 8. Power to enter land for inspection, etc-
For maintaining, examining, repairing, altering or removing any pipelines, or for doing any other act necessary for the utilisation of the pipelines or for the making of any inspection or measurement for any of the aforesaid purposes, any person authorised in this behalf by the Central Government, the State Government or the corporation, as the case may be, may, after giving reasonable notice to the occupier of the land under which the pipelines has been laid, enter therein with such workmen and assistants as may be necessary: Provided that, where such person is satisfied that an emergency exists no such notice shall be necessary: Provided further that, while exercising any powers under this section, such person or any workmen or assistant of such person, shall cause as little damage or injury as possible to such land.
Section 10. Compensation-
(1) Where in the exercise of the powers conferred by section 4, section 7 or section 8 by any person, any damage, loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or is being, or has been laid, the Central Government, the State Government or the corporation , as the case may be , shall be liable to pay compensation to such person for such damage, loss or injury , the amount of which shall be determined by the competent authority in the first instance.
(2) If the amount of compensation determined by the competent authority under sub-section (1) is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge.
(3) The competent authority or the District Judge while determining the compensation under sub-section (1) or sub-section (2), as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land by reason of-- (i) the removal of trees of standing crops, if any, on the land while exercising the power under section 4, section 7 or section 8; (ii) the temporary severance of the land under which the pipeline has been laid from other lands belonging to, or in the occupation of, such person; or (iii) any injury to any other property, whether movable or immovable , or the earnings of such persons caused in any other manner: Provided that in determining the compensation no account shall be taken of any structure or other improvement made in the land after the date of the notification under sub-section (1) of section 3.
(4) Where the right of user of any land has vested in the Central Government, the State Government or the corporation , the Central Government, the State Government or the corporation , as the case may be, shall, in addition to the compensation, if any, payable under sub-section (1), be liable to pay to the owner and to any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such vesting, compensation calculated at ten per cent. of the market value of that land on the date of the notification under sub-section (1) of section 3.
(5) The market value of the land on the said date shall be determined by the competent authority and if the value so determined by that authority is not acceptable to either of the parties, it shall, on application by either of the parties to the District Judge referred to in sub-section (2), be determined by that District Judge.
(6) The decision of the District Judge under sub-section (2) or sub-section (5) shall be final.
Section 11. Deposit and payment of compensation-
(1) The amount of compensation determined under Section 10 shall be deposited by the Central Government, the State Government or the corporation, as the case may be, with the competent authority within such time and in such manner as may be prescribed.
(2) If the amount of compensation is not deposited within the time prescribed under Sub-section (1), the Central Government, the State Government or the corporation, as the case may be, shall be liable to pay interest thereon at the rate of six per cent per annum from the date of on which the compensation had to be deposited till the date of the actual deposit.
(3) As soon as may be after the compensation has been deposited under sub-section (1) the competent authority shall, on behalf of the Central Government, the State Government of the corporation, as the case may be, pay the compensation to the persons entitled thereto.
(4) Where several persons claim to be interested in the amount of compensation deposited under sub-section (1), the competent authority, shall determine the persons who in its opinion are entitled to receive the compensation and the amount payable to each of them.
(5) If any dispute arises as to the apportionment of the compensation or any, part thereof or as to the persons to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the District Judge within the limits of whose jurisdiction the land or any part thereof is situated and the decision of the District Judge thereon shall be final.
Section 13. Protection of action taken in good faith-
(1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or notification made or issued thereunder.
(2) No suit or other legal proceeding shall lie against the Central Government, the competent authority or any State Government, or corporation for any damage, loss or injury caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act or any rule or notification made or issued there under.
(iv) Learned counsel for the applicants placing reliance on the aforesaid provision of Act No. 50 of 1962, vehemently urged that in view of the aforesaid provisions of Act No. 50 of 1962 read with notification dated 08.03.2008, both the applicants were not the competent authority at the relevant point of time, therefore no liability in any manner can be fixed upon the applicants regarding the grievance of opposite party no. 2 to 4.
(v) It is also submitted that from examination-in-chief of P.W.-1, it is apparent that vague allegation has been leveled that the brothers of Opposite party no. 2 to 4 have grabbed the compensation of the land of their share given by Gas Authority of India Limited in-collusion with the applicants and other co-accused. The allegation of criminal conspiracy has been leveled without any iota of evidence on record.
(vi) It is submitted that the whole proceedings before the trial court is vitiated, because this court by order dated 26.08.2014 had directed to re-frame the charges against the accused Chaman Singh, but the trial court without re-framing charges afresh, proceeded with the trial and framed the charges against accused Chaman Singh on 07.05.2015 much after recording the examination-in-chief of opposite party no. 2 as first prosecution witnesses on 24.09.2014.
(vii) The learned counsel for the applicant relying on the judgment of Apex Court in the case of "Hardeep Singh and others vs. State of Punjab and others, 2014 (3) SCC 92" contended that for summoning any person under Section 319 Cr.P.C, the learned trial court is duty bound to record, a specific finding that the evidence which has emerged from the statement of prosecution witnesses is sufficient for conviction of the person, who is being summoned under Section 319 Cr.P.C to face trial.
(viii) It is next submitted that the learned Judicial Magistrate Ist, Muzaffar Nagar has committed legal error in not recording the specific finding in terms of law laid down by the Apex Court in the case of Hardeep Singh (Supra).
(ix) It has also pointed out that the opposite party no. 2 to 4 were very much aware about the acquisition proceedings and granting of compensation to their brothers Chaman Singh and Preetam Singh, but they did not avail any statutory remedy available to them.
(x) Much emphasis has been given that the application under Section 156(3) Cr.P.C. moved by opposite party no. 2 to 4 was also not in accordance with the guidelines law laid down by the Apex Court, as the said application dated 28.03.2012 under Section 156(3) Cr.P.C. was not supported by the affidavit.
(xi) It is submitted that even accepting the entire contents as disclosed by the P.W.-1 in his examination-in-chief as true, no offence against the applicants are made out.
(xii) There is no direct or indirect evidence against the applicants.
(xiii) Allegation leveled by the opposite party no. 2 against the applicants are also against the evidence on record.
(xiv) On the such vague allegation, there is no possibility of conviction of the applicants.
(xv) Initiation of criminal proceedings under the facts and circumstances of this case in exercise of powers under Section 319 Cr.P.C. against the applicants who were not holding the power of "competent authority" at that time is nothing but abuse of the process of the court.
Submissions on behalf of the opposite party no. 1/State 11- Learned A.G.A. for the state submitted that opposite party no. 2/P.W.-1 in his statement has taken the name of the applicants making allegation against them that they were incollusion with the brothers of the opposite party no. 2 and as such prima facie offence against them is made out. It is submitted that though at this stage there is no evidence of conspiracy against the applicants, but same may come at later stage, therefore there is no illegality in the impugned order dated 10.06.2015 and 09.09.2016.
Submissions on behalf of opposite party no. 2 to 4 12- Learned counsel for the opposite party no. 2 to 4 has filed counter affidavit dated 10.08.2017 on behalf of the opposite party no. 2 in leading case filed by applicant K.B. Singh being Matter under article 227 No. 7350 of 2016 and refuting the aforesaid contentions of learned counsel for the applicants, submitted that since the P.W.-1 in his examination-in-chief has taken the name of the applicants making allegation that his brothers Chaman Singh and Preetam Singh incollusion with the applicants and an other co-accused persons succeeded in grabbing the amount of compensation to the share of opposite party no. 2 to 4, therefore the applicant of both the above cases are liable to be prosecuted. The learned Magistrate has rightly allowed the application under Section 319 Cr.P.C. of the opposite party no. 2 and summoned them by the order dated 11.06.2015 to face trial. There is no legal error in summoning the applicants by the impugned order dated 11.06.2015 and rejecting the revision of the applicants by the Additional Sessions Judge, Court No. 10, Muzaffar Nagar vide order dated 09.09.2016. It has been submitted that prima facie offence against the applicants are made out therefore both the applications under article 227 of the constitution of India are liable to be dismissed. It is also submitted that if there is any lacuna in conducting trial, even then entire proceeding cannot be vitiated. The investigating officer has not conducted proper investigation.
Decided Case Laws-
17- Here it would be relevant to mention that all the issues relating to scope and object of summoning the accused under Section 319 Cr.P.C. has been well considered and settled by Constitutional Bench consisting of five Judges of Apex Court in case of Hardeep Singh and others vs. State of Punjab and others 2014(3) SCC-92.
Following five questions were before the Apex Court in the case of Hardeep Singh (Supra):-
(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial"
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign and accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?
(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
18- The aforesaid question no. iv has been discussed in Para 93 to 106 and answered in Para- 105 and 106 of the said judgment, which are reproduced herein below:-
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.
19- The aforesaid principles laid down by the Apex Court in the case of Hardeep Singh (supra) has been reiterated further in case of Brijendra Singh and others vs. State of Rajasthan 2017(7) SCC 706 as well as in the case S Ahmad Ispahni vs. Yogendra Chandak and others 2017 (16) SCC 226 observing that power under Section 319 Cr.P.C. can be exercised only where strong and cogent evidence are found against a person and not in a casual and cavilliar manner. The decree of satisfaction before summoning the offence under Section 319 Cr.P.C. must be more than prima facie, which is warranted at the time of framing of charges against the accused.
20- Apex Court resently on 13 November, 2018 decided another case "Labhuji Amratji Thakar and others vs. State of Gujarat and another 2018 SCC online SC 2547 following the principle laid down by the Apex Court in the case of Hardeep Singh (Supra).
The fact of the said case was that the complainant-respondent no. 2 lodged FIR on 27.05.2015 under Sections 363 and 366 I.P.C. and under Section ¾ of POCSO Act alleging that her daughter Parvati aged about 14 years had been abducted by one Natuji Bachauji Thakur between the night of 26.05.2015 and morning hours of 27.05.2015. The victim in her statement had taken the name of Natuji Bachauji alone, the investigating officer submitted charge sheet agianst Natuji Bachauji Thakur only. The trial proceeded against the accused. The statement of mother of victim was recorded as P.W.-3 and statement of victim was recorded as P.W.-4. Thereafter, prosecution moved application under Section 319 Cr.P.C. stating that victim P.W.-4 in her statement taken name of Labhuji, Shashikant and Jeet Ji also, who had taken the victim to Morvi in the jeep. Prayer was made to proceed against the above three named persons, whose name surfaced in the statement of victim in trial. The said application was objected on the ground that on 03.07.2015 statement of victim was recorded, in which she in her long statement has not taken the name of appellants of the said case and it was only in the statement recorded in the court after more than one year on 18.06.2016, she taken the name of appellants, that friends of accused were also along with accused Natuji. The trial court rejected the application of the prosecution. The prosecution side feeling aggrieved by rejection of the application on 01.12.2016 by trial court, filed criminal revision against the order dated 01.01.2016, which was allowed by the High Court by impugned judgment dated 13.04.2018. Aggrieved with the said judgment the appellant preferred appeal before the Apex Court. The Apex Court allowed the appeal with the observation that High Court committed error in setting aside the order of trial court rejecting the application under Section 319 Cr.P.C. of the prosecution. The High Court has not given sufficient reason for allowing the application under Section 319 Cr.P.C. filed by prosecution. The observation made by the Apex Court in para- 12 & 13 of the said judgment are reproduced herein below:-
12. The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e., "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." Although, the High Court has not adverted to test laid down by the Constitution Bench nor has given any cogent reasons for exercise of power under Section 319 Cr.P.C., but for our satisfaction, we have looked into the evidence, which has come on record before the trial court as statements of PW3 and PW4. PW3 is mother of the victim, who has clearly stated that her daughter has informed that she was abducted by appellants and Natuji, who had taken her to the Morbi in the vehicle of Labhuji. The statement of mother of the victim was an hearsay statement and could not have been relied for proceeding against the appellants. Now, coming to the statement of victim, PW4, she has only stated that Natuji, the accused had come along with his three friends, i.e. appellants and she was taken in the jeep to Morbi. She does not even alleged complicity of the appellants in the offence. Her further statement was that she was taken to Morbi in the jeep driven by Labhuji and subsequently was taken to Modasa from Morbi in the jeep of Labhuji which also could not furnish any basis to proceed against the appellants. The mere fact that the jeep, in which she was taken to Modasa, the appellants were also present cannot be treated to be any allegation of complicity of the appellants in the offence. The observations of the trial court while rejecting the application having that the application appears to be filed with mala fide intention, has not even been adverted by the High Court.
13. We are, thus, of the considered opinion that High Court committed error in setting aside the order of the trial court rejecting the application under Section 319 Cr.P.C. The High Court has not given sufficient reasons for allowing the application under Section 319 Cr.P.C. filed by prosecution. The impugned judgment of the High Court is unsustainable and is hereby set aside. The appeal is allowed.
21- So far as argument advanced on behalf of the applicants that application u/s 156(3) Cr.P.C. dated 28.03.2011 of the opposite party no. 2 to 4 was not supported by affidavit is concerned, this issue has been settled by the Apex Court in the Case of Priyanka Srivastava and another vs. State of U.P. reported in 2015(6) SCC 287. The extract of relevant paragraph no. 27 of the said judgment is reproduced hereinbelow:-
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
Discussion 22- After hearing the argument of the learned counsel for the parties, perusing the record and considering the well settled principles laid down by the Apex Court, as discussed above, I find that:-
(i) The provisions of Act No. 50 of 1962 and notification dated 08.03.2008, on which applicants placed reliance and mentioned the same in paragraph no. 5, 6, 7 and 8 of their applications has not been disputed/denied by the opposite party no. 2 in para 3 of the counter affidavit dated 10.8.2017. In paragraph 3 of the counter affidavit of the opposite party no. 2 regarding of the aforesaid statutory provision of Act No. 50 of 1962 and notification dated 08.03.2008, as argued by the learned counsel for the applicants, only this much has been stated that the contents of para 3, 4, 5, 6, 7 and 8 of the application are matter of record and call for no reply.
(ii) Learned counsel for the opposite party no. 2 to 4 also conceeded on the point that the applicants were not the "competent authority". It is admitted fact that as per notification dated 08.03.2008 Shri Bhagwan Sagar Ojha, Special Land Acquisition Officer was the "competent authority" for whole of the State for GAIL (India) Limited but Bhagwan Sagar Ojha has neither made accused in the FIR nor in the statement of opposite party no. 2.
(iii) From the pleadings it is also clear on record that no statutory remedy has been availed by the opposite party no. 2 to 4 in respect of their alleged claim of compensation before any statutory authority or forum.
(iv) In the FIR also same allegation was leveled against the applicant but the same had not been found correct, therefore no chargesheet was submitted against the applicants. After going through the statement of P.W.1 also, it is clear that no new evidence has brought on record by the opposite party no. 2 except a vague allegation of incollusion of the applicants with their brothers Chaman Singh and Preetam Singh without any iota of corroborative evidence on record.
(v) It is admitted facts on record that the process of acquisition was very much in the knowledge of opposite party nos. 2 to 4 and a joint notice dated 25.9.2009 was issued to all the share holders under Section 3(1) of the Act 1962 requiring them to file their objection, if any, on the said notification but they did not raise any objection.
(vi) From the provisions as mentioned in Section 3, 6, 8, 10 and 11 of the aforesaid Act of 1962, it is clear that the "competent authority" is solely responsible to perform the functions under the provisions of Act No. 50 of 1962.
(vii) Under section 13 of Act No. 50 of 1962, there is protection clause also that no suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or initiated to be done in pursuance of Act no. 50 of 1962 or any rule or notification made are thereunder.
(viii) I also find force in the submission advanced on behalf of the applicant that the trial court did not comply the order dated 26.8.2014 at the appropriate stage. Co-ordinate Bench of this Court vide order dated 26.8.2014 had directed the trial court to re-frame the charges against the accused Chaman Singh but the trial court without reframing the charges afresh, proceeded with the trial and recorded the statement of opposite party no.2 as PW-1 on 24.9.2014 and thereafter framed the charges against the accused Chaman on 7.5.2015.
(ix) Neither the trial court in the impugned order dated 11.6.2015 nor the Additional Sessions Judge in the impugned order dated 9.9.2016 has recorded the specific finding in terms of well settled law laid down in case of Hardeep Singh (supra). There is no specific finding in the impugned orders that the evidence which is brought on record by the PW-1 is strong and cogent evidence against the applicants and the same is more than prima facie case against the applicants.
Conclusion
23. In view of above, this Court is of the view that under the facts and circumstances of the case as well as evidence on record of this case, there is no strong and cogent evidence to establish more than prima facie case against the applicants to summon them under Section 319 Cr.P.C.. The impugned judgments and orders dated 11.6.2015 and 9.9.2016 are not sustainable in the light of well established principles laid down by the Apex Court in the cases of Hardeep Singh, Brijendra Singh, S. Ahmad Ispahni and Labhuji Amratji Thakar (Supra) and liable to be set aside by this Court.
Result 24- In the result, the impugned order dated 11.6.2015 passed by Judicial Magistrate-I Muzaffar Nagar in case no. 360/9/2013 (State Vs. Chaman Singh), under sections 406, 409, 420, 467, 468, 471, 120B IPC, District Muzaffar Nagar and order dated 9.9.2016 passed by Additional Sessions Judge, Court No. 10 passed in Criminal Revision No. 58 of 2016 are hereby set aside regarding the applicants K.B. Singh and J.P. Singh. Both the aforesaid matters under Article 227 no. 7350 of 2016 and 7512 of 2016 are hereby allowed.
Order date: 20.02.2019 Rohit