Allahabad High Court
Maidan Singh And Another vs State Of U.P. And Another on 6 July, 2022
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL REVISION No. - 3498 of 2021 Revisionist :- Maidan Singh And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Pradeep Singh,Manu Pathak Counsel for Opposite Party :- G.A.,Lok Nath Shukla Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the revisionists, learned counsel for the opposite party no.2 as well as learned A.G.A.
By means of the instant revision, the revisionist is assailing the legality and validity of the order dated 13.09.2021 passed by learned Additional District and Sessions Judge, Court No.3, Kaushambi in Sessions Trial no.246 of 2015 arising out of case crime no.197 of 2013, under sections 308, 323, 324, 452, 504, 506 IPC, Police Station-Charwa, District-Kaushambi.
Before appreciating the impugned order, it is imperative to bring on record the genesis of the case in short.
On 29.08.2013 at 8:30, an FIR was got registered under section 452, 323, 504, 506 IPC against Dhara Singh, Ram Harsh Singh, Mahendra Singh and Maidan Singh for the alleged act of assault by lathi and danda upon the injured persons. The police after investigation, has submitted the report under section 173(8) Cr.P.C. only against Dhara Singh and Ram Harsh Singh dropping the name of Mahendra Singh and Maidan Singh. It is next contended that in this transaction, two persons namely Brijesh Kumar Singh and Smt. Savitri Devi got injured. A perusal of the injury report indicates that the injuries sustained by Brijesh Kumar Singh is simple in nature whereas Smt. Savitri Devi has sustained four injuries over her person in which injury no.2 and 3 were simple in nature. However, injury no.1 which is on the right parietal region was present complaining vomiting and vertigo.
I have perused the 161 and 164 Cr.P.C. statement of the injured persons and in their respective statements, general role of assault by lathi and danda has been attributed. Therefore, assessing the entirety of the circumstances, Investigating Officer of the case has dropped the name of the present revisionist. Learned counsel for the revisionists has drawn the attention of the Court to the statements of all the prosecution witnesses who in their respective testimonies, have reiterated the same story of general role of assault upon the injured persons and thereafter, the application under section 319 Cr.P.C. was moved for summoning the non-accused revisionists to face the trial. Accordingly, on 13.09.2021, an application no.22-Kha under section 319 Cr.P.C. was allowed and Maidan Singh and Mahendra Singh were summoned to face the trial.
Learned counsel for the applicant has shown the judgment of Hon'ble Apex Court in the case of Brijendra Singh and others Vs. State of Rajasthan decided on 27.04.2017 in Crl. Appeal No. 763 of 2017, in which the Hon'ble Apex Court has held that:-
"Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material."
I have perused the order impugned and compared the same with the observation of Hon'ble Apex Court in the case of Brijendra Singh (Supra) and the Court too is in favour that all the material on record has to be taken into account while forming the prima facie opinion of the court concerned. Surprisingly the learned trial court has literally translated the story as narrated in the FIR and branded it as its satisfaction. This proposition is not at all acceptable.
Learned counsel for the revisionists in this regard has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C. :
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner."
Learned counsel for the revisionists has further drawn the attention of the Court to para-12 of the above judgement:
"12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes un-controverted, would lead to be conviction of the accused."
Learned counsel for the revisionists has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019, in which it has been held that :
"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."
Learned counsel for the revisionists laid much emphasis in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, wherein it has been held by the Hon'ble Apex Court that :-
"Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the I.O. during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. revisionists) complicity has come on record".
I have perused the order impugned and I am afraid that at no point of time, learned trial Judge had ever referred to the report under section 173(8) Cr.P.C. passed by Investigating Officer and without recording his satisfaction of material in most cursory and perfunctory way, has allowed the same.
This Court is of the considered opinion that the same is dehors of the law laid down by Hon'ble the Apex Court in the aforesaid judgment. Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above), therefore, impugned order dated 13.09.2021 is hereby set aside and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of eight weeks positively from the date of production of certified copy of this order.
With the aforesaid observations, the present revision stands disposed off.
Order Date :- 6.7.2022 Sumit S