Smt.Saira Bano vs The State Of U.P. on 28 July, 2017

[Cites 29, Cited by 1]

Allahabad High Court

Smt.Saira Bano vs The State Of U.P. on 28 July, 2017

1. The petition has been filed under Section 482 Criminal Procedure Code quashing order dated 30.7.2008 placed on record as Annexure-2 passed by Additional Sessions Judge/F.T.C. Vth, Lucknow vide which the petitioners have been summoned to stand trial under Section 319 Criminal Procedure Code, as additional accused.

The petition also challenges order dated 24.10.2008 (Annexure-1) vide which application filed on behalf of the petitioners for discharge has been dismissed.

2. It appears that an incident took place on 27.4.1999. First Information Report was registered vide Crime No. 330 of 1999 on 21.5.1999 under Sections 147,324,323,504 Indian Penal Code and Section 3(1)(x) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Police Station Krishna Nagar, Lucknow at the instance of Ganga Devi.

In the First Information Report, other than the named accused, it was alleged that there were other lady family members also who participated in committing the crime.

3. It has not been disputed by learned counsel for the petitioners that the witnesses in the course of investigation gave statements under Section 161 Criminal Procedure Code while naming the petitioners also as accused. Be that as it may, chargesheet Annexure-4 was filed. The petitioners were not forwarded as accused.

4. After the commencement of trial the witnesses, including the complainant injured were examined as prosecution witness. In their deposition in court on oath the petitioners have again been named as having participated in the incident.

5. An application under Section 319 Criminal Procedure Code was filed. The application was allowed vide impugned order dated 30.7.2008, Annexure-2. Consequently, the petitioners were directed to stand trial as additional accused.

It further appears that petitioners approached this court vide Criminal Misc. Case No.3305 of 2008, titled Smt. Saira Bano and another vs. State of U.P. under Section 482 Criminal Procedure Code. This court dismissed the petition for quashing vide order dated 10.9.2008. The following order was passed by this Court:-

"Heard learned counsel for the petitioner and the learned AGA.

By the present application under Section 482 Cr.P.C. the applicant has invoked the inherent jurisdiction of this Court with a prayer that the order dated 30.07.2008, under Sections 3(i)(x) SC ST Act, PS Krishna Nagar, Lucknow, passed by Additional Sessions Judge/FTC-V, Lucknow in Sessions Trial No.1283 of 2001, be stayed.

The contention of learned counsel for the applicants is that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment. He pointed out certain documents and statements in support of his contentions.

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submission made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC(Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC(Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants has got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial Court.

In the event such a discharge application is filed within one month from today, the trial Court is directed to consider and dispose it off within a period of two months from the date of its filing.

The prayer for quashing the proceeding is refused.

If the applicants appear through counsel before the Court below wihtin a period of 15 days, it is directed that the bail prayer of the applicant/petitioners be considered expeditiously as possible, if possible on the same day after hearing the Public Prosecutor.

For a period of 30 days, no coercive action shall be taken against the applicants in Sessions Trial No.1283 of 2001, under Sections 3(i)(x) SC ST Act, PS Krishna Nagar, Lucknow, passed by Additional Sessions Judge/FTC-V, Lucknow.

With the above directions this application is disposed of."

6. In view of the observations in the above extracted order the petitioners filed an application for discharge before the trial court. The application has been dismissed vide impugned order dated 24.10.2008, placed on record as Annexure-1.

7. Contention of learned counsel for the petitioners is that there is no evidence available on record to summon the petitioners as additional accused to stand trial. It has been argued that there is a motive for false implication and the said circumstances be taken into account for quashing the impugned orders.

8. Learned counsel for the State, Shri Faisal Ahmad Khan has relied on judgments rendered by Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab (2014) 3 SCC 92 (5 JJ.) and 2016(12) SCC 394 Hardei vs. State of U.P. (2JJ.).

It has been contended that there is sufficient evidence available on record to prima facie indicate involvement of the petitioners in committing the offence. It has been vehemently argued by Shri Faisal Ahmad Khan that manifest injustice would be caused to the complainant/injured in case the petition is allowed. It has been argued that the impugned orders have been passed within the parameter of law on the basis of relevant evidences.

9. I have heard learned counsel for the parties. I have also gone through the impugned orders and other related documents available on file.

10. In Hardeep Singh's case (supra) the following has been held/concluded in Para 117:-

"117. We accordingly sum up our conclusions as follows:

Questions (I) and (iii) ?-What is the stage at which power under Section 319 Cr.P.C. can be exercised?

AND ?---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?

Answer 117.1 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.

117.2 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.

117.3 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--- 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?

Answer 117.4 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--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?

Answer 117.5 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--Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?

Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted 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."

11. In Hardei's case (supra) the following has been held in Para 9:-

"It is well accepted in criminal jurisprudence that F.I.R. may not contain all the details of the occurrence or even the names of all the accused. It is not expected to be an encyclopedia even of facts already known. There are varieties of crimes and by their very nature, details of some crimes can be unfolded only by a detailed and expert investigation. This is more true in crimes involving conspiracy, economic offences or cases not founded on eye witness accounts. The fact that Police chose not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the Cr.P.C. to summon such a person on account of evidence recorded during trial. This is the factual scenario in the case at hand also."

12. From the above extracted portions of judgments it become evident that 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 the investigation. Such cognizance can be taken under Section 193 Criminal Procedure Code and the Sessions Judge need not wait till 'evidence' under Section 319 Criminal Procedure Code becomes available for summoning an additional accused.

So far as exercise of power under Section 319 Criminal Procedure Code is concerned materials coming before the court in the course of inquiries can be used for corroboration of the evidence recorded in the court after trial commences. On consideration of such material the court may consider summoning a person as additional accused to stand trial along with other accused under Section 319 Criminal Procedure Code.

The word 'evidence' in Section 319 Criminal Procedure Code has to be broadly understood and not literally i.e. as evidence brought during a trial.

The court need not wait for the evidence against the accused proposed to be summoned to be tested by cross examination. That is to say for proceeding under Section 319 Criminal Procedure Code against a person, even if a prosecution witness has not been cross examined, the statement can still be used for the purposes of this provision.

A person not named in the First Information Report or a person though named in the first Information Report but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Criminal Procedure Code, provided from the evidence it appears that such person should be tried along with the accused already facing trial.

Though under Section 319(4)(b) Criminal Procedure Code 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 Criminal Procedure Code 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.

13. It would not be out of place to refer to the contents of paragraph 100 of the judgment from Hardeep Singh's case (supra). In the said paragraph the Hon'ble Supreme Court has referred to a series of cases wherein the Supreme Court while dealing with the provisions of Sections 227,228,239,240,241,242 and 245 Criminal Procedure Code, has held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connects the accused with the offence. Nothing more is required to be enquired into.

It has been held that the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further.

14. In Hardei's case (supra) essentially it has been said by Hon'ble Supreme Court that the First Information Report may not contain all the details of the occurrence or even the names of all the accused. It is not expected to be an encyclopedia even of facts already known. The fact that the police chose not to send up a suspect to face trial does not effect the power of the trial court under Section 319 Criminal Procedure Code to summon such a person on account of evidence recorded during trial.

15. When the law as noticed above, is applied to the facts and circumstances of the case in hand it becomes evident that the present petition is a frivolous petition.

The facts, emerging from the First Information Report, at the cost of repetition, indicate involvement of more accused than named. When investigation was going on, specific names of the accused/petitioners, were given by the witnesses to the investigating agency. Despite such evidence being available on record the petitioners were not arrayed as accused in the charge sheet.

16. When the trial commenced, the prosecution witnesses were examined. PW1-Ganga Devi, PW2-Ramesh Kumar and PW3-Ram Deen Bharti have on oath in court named the petitioners as additional accused who also committed the offence. In such circumstances, in the considered opinion of the court, the trial court acted legally in summoning the petitioners as accused in exercise of its power under Section 319 Criminal Procedure Code vide order dated 30.7.2008.

This court is of the considered opinion that the material brought on record by the prosecution reasonably connects the petitioners with the offence. Three prosecution witnesses having named the petitioners as connected with the incident and having participated in commission of the crime satisfy the test of prima facie case.

17. Even in adjudicating the application for discharge, the application has been dismissed vide impugned order Annexure-1 dated 24.10.2008.

18. This court finds neither any illegality nor lack of jurisdiction on the part of the courts below in summoning the petitioners as additional accused; or in dismissing the application for discharge.

19. There is yet another dimension to this case. At the point in time when the petitioners earlier approached this court by way of filing Criminal Misc. Case No.3305 of 2008 (supra), the First Information Report, the charge-sheet, the statements given by prosecution witnesses implicating the petitioners and the order of summoning under Section 319 Criminal Procedure Code dated 30.7.2008 were already on record.

This court considered all these documents and the evidences, however, dismissed the application of the petitioners. The same material is available on record as on date. It is, therefore, evident that this petition has been filed in abuse of process of this court only so as to delay the proceedings.

No new material has come on record that is required to be considered by this court for taking a different view. Rather any order passed contrary to the order earlier passed by this court in jurisdiction under Section 482 Criminal Procedure Code, would be in review of the earlier order, which is not permissible in law.

20. In view of the above, I am of the view that the petitioners have not shown any fact or circumstance that would require this court to invoke its jurisdiction under Section 482 Criminal Procedure Code to prevent abuse of process of the court.

21. The petition is dismissed.

22. Let a copy of this order be forwarded to District Judge, Lucknow who shall ensure that the petitioners are proceeded against as per law.

Order Date :- 28.7.2017 Madhu

Unlock Advanced Research with PRISMAI

Allahabad High Court