Allahabad High Court
Vinay Pratap Singh vs State Of U.P. And 5 Others on 3 April, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 23.01.2023 Delivered on 03.04.2023 Court No. - 77 Case :- CRIMINAL REVISION No. - 3962 of 2022 Revisionist :- Vinay Pratap Singh Opposite Party :- State Of U.P. And 5 Others Counsel for Revisionist :- Rajrshi Gupta, Arun Kumar Misra, Man Mohan Mishra Counsel for Opposite Party :- G.A.,Gaurav Pratap Singh, Sr. Advocate Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.3, Sri Kamal Krishna, learned Senior Advocate, assisted by Sri Gaurav Pratap Singh, learned counsel for the opposite party No.4 to 6 and learned AGA for the State.
2. This criminal revision has been preferred against order dated 08.09.2022, passed by the learned Additional Session Judge/F.T.C.-I, Ballia in Session Trial No. 224 of 2008 (State vs. Vinay Singh), Case Crime No.64 of 2006, under Section 302 IPC, police station Haldi, district Ballia, whereby the application filed by the revisionist / accused under Section 319 CrPC, has been rejected.
3. Perusal of record shows that the informant of the case, namely, Radhey Shyam Mishra has lodged the first information report of this case on 5/6.12.2006 at 00:30 hours, alleging that on 05.12.2006 his son Manoj Mishra has gone to see his uncle Brijesh Chaubey at Babuvela. There Manoj along with his uncle Brijesh Chaube was attending a ''Tilak' ceremony organised by Ashok Kumar Singh. During that function while programme of dance was going on, Dr. Ashok Kumar Singh, Vaibhav Singh s/o Dr Ashok Kumar Singh, Dr. Abhishek Singh and Dr. Vinod both s/o Dr Sita Ram and some of their family members came to see the dance programme and they were in drunk condition and at around 11.00 PM, they started making indiscriminate celebratory firing. One of the bullet has hit Manoj Kumar and another at one Chandeshwari Singh and resultantly, Manoj Kumar and the said Chandeshwari died of gun shot injuries. The first information report was lodged against four accused persons namely, Dr. Ashok Kumar Singh, Vaibhav Singh, Dr. Abhishek Singh and Dr. Vinod Singh. During investigation they were granted bail. Later on Dr Sita Ram has made an application to the higher police authorities for fair and impartial investigation. Consequently, the investigation was transferred from district Ballia to Mau and further investigation was conducted by one R.D. Shukla. It appears that during investigation the involvement of said named accused persons was not found and after completion of investigation, on 29.05.2008 charge-sheet under section 302 IPC was submitted against the revisionist/accused Vinay Pratap Singh and that said four named accused persons were exonerated.
4. It appears that later on by order 20.11.2008 the State Government made direction for further investigation by the C.B.C.I.D. but meanwhile the case was committed to the Court of Session on the basis of the charge sheet submitted by the investigating officer R.D. Shukla. While the matter was being further investigated, the proceedings of the Session trial remained continue. On 04.09.2009 the investigating officer of C.B.C.I.D., after completing investigation, filed a report with conclusion that the offence under Section 304, 286 IPC has been committed by Vinay Pratap Singh and Dr. Sita Ram Singh. The revisionist Vinay Pratap Singh has filed an application under Section 482 Cr.P.C. for quashing of proceedings pending against him, which was disposed of by this Court vide order dated 05.08.2010, by which the prayer for quashing of proceedings was refused and a direction was made to the Trial Court to decide the applicant's application which was pending before the Trial Court. Thereafter, the application of revisionist/accused (paper no.53 ka) was rejected by the Trial Court vide order dated 07.08.2010 holding that the applicant/revisionist is being tried on the basis of charge-sheet submitted by the local police. The revisionist/applicant has filed a Criminal Misc. Writ Petition No.16524 of 2010 against the order dated 07.08.2010, wherein, revisionist/accused was granted interim protection but later on in view of law laid down in case of Asian Resurfacing of Road Agency Pvt. Ltd. and Anr. Vs. Central Bureau of Investigation, AIR 2018 SC 2039, the proceedings of session trial court were re-started against the revisionist/accused. Thereafter, the revisionist/accused has moved an application under Section 319 Cr.P.C. for summoning of Dr. Ashok Kumar Singh, Dr. Vaibhav Singh, Dr. Abhishek Singh and Dr. Vinod Singh (opposite party No.3 to 6) as accused, which was rejected by the Trial Court vide impugned order dated 08.09.2022.
5. It has been argued by learned counsel for the revisionist that the impugned order is against facts and law and thus, liable to be set aside. In view of attending facts and circumstances of the case, the application moved by the revisionist / accused under section 319 CrPC was maintainable. It was submitted that in the alleged ''Tilak' ceremony a number of persons, including family members of Dr. Sita Ram Singh, were making firing in air in celebration and that three persons namely Manoj Mishra, Chandeshwari Singh and Ram Kumar Yadav suffered gun shot injuries and that said Manoj Mishra and Chandeshwari Singh have died at the spot. The informant Radhey Shyam Mishra, who was present at the spot, has attributed role of firing to the family members of Dr. Sita Ram Singh and that Dr. Ashok Kumar Singh, Dr. Vaibhav Singh, Dr. Abhishek Singh and Dr. Vinod Singh were nominated as accused persons and the police have arrested them and they were granted bail. Later on by order dated 21.12.2006 the investigation was transferred from police station Haldi, Ballia to District Mau and the subsequent Investigating Officer namely, R.D. Shukla recorded statement of one Smt. Shakuntala, who has stated that her husband Chandeshwari Singh was killed by Vinay Pratap Singh (revisionist) and consequently, the revisionist Vinay Pratap Singh was made an accused and he was granted bail but later on the further investigation of the case was transferred to C.B.C.I.D. and after further investigation, report was submitted with conclusion that only offence under section 304 IPC is made out against the revisionist. It was submitted that in view of the first information report and statement of the first investigating officer and attending facts and circumstances of the case, a case against the opposite party Nos.3 to 6 is made out. Referring to the facts of the matter, it was submitted that in view of attending facts and circumstances of the matter, a case for summoning of opposite party No.3 to 6 under Section 319 Cr.P.C. is made out and thus, the Trial Court committed patent illegality by rejecting the application of revisionist filed under Section 319 Cr.P.C. In support of his contentions, learned counsel for revisionist has placed reliance upon the following case laws:-
(i) Bholu Ram vs. State of Punjab & Anr. [2009 75 AIC 213].
(ii) Lok Ram vs. Nihal Singh and Another [(2006) 10 Supreme Court Cases 192]
6. Learned Senior Counsel for the opposite party No.4 to 6 and learned A.G.A. have opposed the revision and argued that there is no illegality or perversity in the impugned order. The informant is not an eye witness of the incident. The eye-witnesses, examined before the trial court, did not make any incriminating statement regarding involvement of the opposite party No. 4 to 6 in the incident. There is no evidence against the opposite party No. 4 to 6. Referring to the facts of the matter, it was submitted that no case for summoning of opposite party No. 4 to 6 is made out. Similarly, learned counsel for the opposite party No.3 has also opposed the revision and argued that there is no illegality or perversity in the impugned order.
7. I have considered rival submissions and perused the record.
8. Before considering the merits of the contentions, it would be relevant to refer to Section 319 Cr.P.C. which reads as under:-
"319. Power to proceed against other persons appearing to be guilty of offence. ?
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
...............
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
9. By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the Trial Court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused.
10. In case of Bholu Ram vs. State of Punjab (supra), it was held as under:-
"22. It is also settled law that power under Section 319 can be exercised either on an application made to the Court or by the Court suo motu. It is in the discretion of the Court to take an action under the said section and the Court is expected to exercise the discretion judicially and judiciously having regard to the facts and circumstances of each case.
24. The contention of the learned counsel for respondent No. 2 is that the power under Section 319 of the Code, cannot be exercised belatedly by the Court. Again, such order can be made only on the application by the Public Prosecutor or by some person other than the accused. In other words, an application under Section 319 cannot be filed by a person who is facing the trial.
25. We are unable to uphold the contentions. We have quoted Section 319 of the Code. It nowhere states that such an application can be filed by a person other than the accused. It also does not prescribe any time limit within which such application should be filed in the Court."
11. In case of Lok Ram vs. Nihal Singh and Another (supra), it was held as under:-
"10. On a careful reading of Sec. 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 is 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 others v. State of Rajasthan, (AIR 1990 SC 2158) the position of an accused who has been discharged stands on a different footing.
11. 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 has 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 of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or 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."
12. In landmark of Hardeep Singh Vs State of Punjab (2014) 3 SCC 92, the Hon'ble Apex Court held as under:
"10. We accordingly sum up our conclusions as follows:
Question Nos.1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised AND Q. 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?
A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No. II Q.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?
A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. IV Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an 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 be convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No.V Q.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 charge-sheeted or who have been discharged?
A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
13. The issue regarding exercise of powers under Section 319 Cr.P.C. has again been considered by Hon'ble Apex Court in case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another (criminal appeal No. 1105 of 2019, decided on 23rd July, 2019 and it was held as under:-
"9. The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are it appears from the evidence any person has committed any offence?. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court."
10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly which reads as under:-
"105. Power under Section 319 Cr.P.C 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.
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."
11. The above view was followed in the case of Brijendra Singh, wherein it was held as under:-
"13. In order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: ... However, since it is a discretionary power given to the court under Section 319 Cr.P.C and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."
14. Considering the aforesaid pronouncements it is clear that power under Section 319 Cr.P.C 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. Though only a prima facie case is to be established from the evidence led before the court, but 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. It has to be keep in mind that since it is a discretionary power given to the court under Section 319 Cr.P.C and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner.
15. In the instant case, it is apparent from record that the revisionist is facing trial in the case as accused. After recording of prosecution evidence as well as defence evidence, the revisionist/accused has moved an application under Section 319 Cr.P.C. for summoning of opposite party No.3 to 6 as accused, which has been rejected by the Trial Court, vide impugned order dated 08.09.2022. Here, it may be mentioned that in view of law laid down in case of Bholu Ram vs. State of Punjab (supra), it appears that an application under Section 319 Cr.P.C. at instance of an accused facing trial would be maintainable, however, matter has to be examined at the anvil of well settled position of law to consider whether a case for summoning of the opposite party No. 3 to 6 is made out or not. Perusal of record shows that evidence of both the parties is already over before the Trial Court. Though, it appears that while deciding the application of revisionist under section 319 CrPC, the Trial Court did not discuss statements of all the witnesses, examined before it, however, on perusal of statements of witnesses it appears that the informant is not an eye-witness of alleged incident. Other witnesses of fact, namely, P.W.-2 Brajeshwar Chaubey, P.W.-3 Ram Kumar Yadav, P.W.-4 Anil Kumar Mishra, P.W.-5 Shrinath Gaur, P.W.-6 Amit Kumar Singh and P.W.-7 Rajeev Ranjan Singh have not made any incriminating statement qua the opposite party No.3 to 6. None of the alleged eye-witness made any positive statement regarding implication of opposite party No.3 to 6 in the alleged incident. In absence of such evidence, the mere fact that conclusion in further investigation, arrived at by C.B.C.I.D. is inconsistent or contradictory with the conclusion of earlier report under section 173 (2) CrPC, it cannot be said that prima facie case for summoning of opposite party No.3 to 6 under Section 319 Cr.P.C. is made out. I have gone through the evidence of prosecution witnesses placed on record and it appears that the evidence qua the opposite party No.3 to 6 is not of such consequence, so as to make out a case for summoning of opposite party No.3 to 6 under Section 319 Cr.P.C. The Trial Court has rightly observed that the jurisdiction under section 319 CrPC can not be invoked by a person to shift his liability to some other person. When the evidence and all attending facts and circumstances of the case are considered at the anvil of the stated legal position, no case for summoning of the opposite party No.3 to 6 under Section 319 Cr.P.C. is made out.
16. As discussed above, power under Section 319 Cr.P.C. 1973 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. In the instant case no material illegality or perversity or error of jurisdiction could be shown in the impugned order so as to require any interference by this Court. The revision has no substance and thus, liable to be dismissed.
17. The revision is dismissed.
18. It is clarified that the observations made herein are limited to the disposal of this revision petition only and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 03.04.2023 Neeraj