Allahabad High Court
Shivam Pandey @ Shiva & Anr. vs State Of U.P. & Anr. on 9 September, 2021
Equivalent citations: AIRONLINE 2021 ALL 2742
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 27 Case :- CRIMINAL REVISION No. - 540 of 2021 Revisionist :- Shivam Pandey @ Shiva & Anr. Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Rajiva Dubey Counsel for Opposite Party :- Mr. Alok Tiwari (Addl. Govt. Advocate) Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for petitioners as well as Shri Alok Tiwari, learned Additional Government Advocate for State.
The present 482 Cr.P.C. application has been filed to quash the impugned order dated 19.8.2021, passed by Addl. Sessions Judge/FTC (New), Lakhimpur Kheri vide S.T. No.707 of 2018, Crime No.894 of 2018 under sections 364, 392, 419, 420 I.P.C., P.S. Kotwali Sadar, district Lakhimpur Kheri, whereby the application moved by the prosecution under Section 319 CrPC has been allowed and the revisionsits have been summoned to face trial.
Learned counsel for the revisionists submitted that the trial Court has illegally summoned the revisionists. In the statement under section 161 CrPC none of the prosecution witnesses has taken the name of the revisionists. It is submitted that relying on the evidence of P.W.1, P.W.2, P.W.3 and P.W.4, learned trial court has, though summoned the revisionists under section 319 CrPC, however, has failed to record any satisfaction as mandated by the Supreme Court in the case of Hardeep Singh and others versus State of Punjab and others 2014 AIR (SCW) 667.
The next ground raised by the revisionists' counsel is that the statement of the prosecution witnesses under section 161 CrPC and the material collected during investigation by the investigating officer have not been taken into account while summoning the revisionists.
Per contra, learned A.G.A. has submitted that the prosecution witnesses P.W.1, P.W.2, P.W.3 and P.W.4 in their statement before the court have assigned the motive of committing the crime to the revisionists. P.W.2, P.W.3 and P.W.4 have given the last seen evidence against the revisionists. P.W.2, P.W.3 and P.W.4 have also stated that the threat was extended by the revisionists to the deceased few days back and the trial court after considering the evidence of all four prosecution witnesses and after finding more than a prima facie case has rightly summoned the revisionists. There is no illegality in the order impugned.
A perusal of the evidence of P.W.1 Manoj Kumar Mathur shows that he came to know that the abductee Mobin has developed illicit relationship with the sister of revisionist No.1 Shivam Pandey. Mobin was working as driver with the witness and that is why, after coming to know the illicit relationship, he has terminated his service.
P.W.2 Razia wife of the abductee Mobin has stated that the revisionists 1 and 2 went with her husband Mobin. They were seen by another prosecution witness Salim. She has also corroborated and reiterated the illicit relationship of Mobin with the sister of revisionist No.1. 3 to 10 days prior, her husband Mobin was threatened by revisionists that either he leaves Lakhimpur Kheri and forget their sister or his family members will not be able to trace his body. She has further stated that on 8.8.2018 at 6.30p.m., her husband was taken by the revisionists. She has also stated that she had moved an application to the Superintendent of Police, Kheri and has told him that the revisionists in collusion with Abhishek Verma and Naman Verma, co-accused have abducted her husband.
P.W.3 Salim has stated that he has seen the revisionists 1 and 2 with the abductee Mobin on 8.8.2018 at around 6-7 p.m..
P.W.4 Baheed in his examination in chief has also stated that the abductee Mobin developed relationship with the sister of revisionist No.1. When it came to the knowledge of revisionists 1 and 2, they went to the house of Mobin at around 6.00p.m. and threatened Mobin to leave Lakhmpur Kheri, or else his family members will not be able to trace his dead body.
The trial Court on due appreciation of evidence of the prosecution witnesses P.W.2, P.W.3 and P.W.4 has found that all the three prosecution witnesses have taken the name of both the revisionists and have supported the story of committing the crime by them, hence has summoned the revisionists.
Learned counsel for the revisionists has relied on the judgment in Hardeep Singh's case (supra) and submitted that the trial court should have recorded its satisfaction that the evidence which has been adduced by the prosecution is sufficient and if it goes unrebutted, it will lead to conviction. Relevant para 99 of the judgment in Hardeep Singh's case (supra) is reproduced as below :
?99. 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 CrPC 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.?
A perusal of the aforesaid judgment (relevant para 99) shows that 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 present case, I find that the trial court was satisfied that on the basis of the evidence of P.W.2, P.W.3 and P.W.4 , prima facie case against the revisionist is made out. There is no requirement for the court while issuing summons to the persons summoned under section 319 CrPC to form any opinion regarding guilt of the accused.
The learned counsel has further relied on Brijendra Singh and others versus State of Rajasthan 2017 AIR (SC) 2839. Relevant para 13 is extracted below :
?13. In order to answer the question, some of the principles enunciated in Hardeep Singh?s case may be recapitulated:
Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ?evidence? against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The ?evidence? herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319Cr.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 warrants. 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 chargesheet 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.?
In the case of Brijendra Singh (supra), it has been held by Supreme Court that prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity of the accused and the degree of satisfaction should be more than the degree which is warranted at the time of framing of charges. It is further held that even such evidence which has surfaced in the examination in chief without cross examination can be taken into consideration.
In the present case, the evidence of P.W.2, P.W.3 and P.W.4 makes it more than prima facie evidence and strong and cogent evidence has been given against the revisionists.
Learned A.G.A. on the other hand has relied on judgment in Rajendra Singh versus State of U.P. and another (2007)7 SCC 378. It has been held that if the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge-sheeted by the investigating agency or may have been discharged at an earlier stage. .
In Gaurav @ Nilwa versus State of Uttarakhand and another [2020(112)ACC 186, the High Court of Uttarakhand while summing up law laid down in Hardeep Singh's case (supra) held as under (relevant para 10) :
?10. From the law laid down by Honble Apex Court in Hardeep Singhs case (supra), it emerges that- (i) the Court can exercise power under Section 319 Cr.P.C. even on the basis of the statement made in examination-in-chief of witnesses concerned; and (ii) Court need not wait till the cross examination of such a witness and the Court need not wait for the evidence against accused proposed to be summoned to be tested by cross examination and to a person not named in the FIR or a person so named in the FIR, but, to have 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 accused already facing trial.?
In regard to the arguments of the revisionists' counsel that the material collected by the investigating officer has to be taken into account, he has relied on para 110 of the judgment in Hardeep Singh's case (supra), which is extracted hereinunder :
?110. 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 underSection 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' underSection 319Cr.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 bySection 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 319Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.
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 319Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event underSection 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) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
A. Though underSection 319(4) (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 319Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted 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 chargesheeted or a person who has been discharged can be summoned under Section 319Cr.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.
The matters be placed before the appropriate Bench for final disposal in accordance with law explained hereinabove.?
A perusal of the law laid down in the aforesaid case shows that enquiries under sections 200, 201, 202 CrPC and under section 396 CrPC are species of the inquiry contemplated by section 319 CrPC. However, it is no where held that if for the first time statement has been given before the court which was not given before the investigating officer, the trial court shall be precluded from summoning the accused; rather on the contrary in view of the aforesaid judgment, it is quite clear that if the evidence has been given by the prosecution witness regarding commission of the crime by a person and makes out more than a prima facie case greater than the degree of satisfaction at the stage of framing of charges, such persons can be summoned by the trial court. Therefore, the law in this respect can be summarised that if during enquiry or trial an evidence has come that a person who is not charge-sheeted and not an accused has committed a crime and that evidence is more than prima facie evidence and also shows more than probability, rather it is a strong or cogent evidence, the trial Court shall be within its right to summon that accused to face trial along with other co-accused persons. The satisfaction that requires should be lower than that on which the accused can be convicted, however, it has to be greater than mere a prima facie case or mere a probable case.
In the present case, P.W. 2 and P.W.4 have given clear cogent evidence regarding commission of crime by the present revisionists. They have assigned motive against the revisionists. They have also given the last seen evidence against the revisionists that they were seen with Mobin who has been abducted. P.W.2, P.W.3 and P.W.4 have also stated that the revisionists have threatened the abductee Mobin to kill. Thus, a cumulative reading of statements of these three witnesses depicts that the revisionists had a clear motive. They have extended threat 8-10 days prior to the abduction of Mobin and on the date of occurrence, these three witnesses have given last seen evidence against the revisionists and in view of the aforesaid law laid down by Supreme Court, it is more than enough to summon the accused persons.
At this stage, learned counsel for the revisionists submits that although discretion under section 319 CrPC is discretionary, however, while summoning the accused, the trial court should not act in a casual manner and such discretion should be exercised sparingly.
I find that the trail court has been very careful and has gone through the evidence of the prosecution witnesses in detail and only then has summoned the revisionists to face trial. There is no illegality in the impugned order.
The revision, being devoid of merit, is dismissed.
Order Date :- 9.9.2021 kkb/