Allahabad High Court
Ajay Kumar vs State Of U.P. And 2 Others on 6 February, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL REVISION No. - 3535 of 2022 Revisionist :- Ajay Kumar Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Dharmendra Kumar Counsel for Opposite Party :- G.A.,Sundeep Shukla Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2 and 3, learned A.G.A. for the State and perused the record.
2. This criminal revision has been preferred against order dated 18.06.2022, passed by the learned Additional Sessions Judge, Court No.6, Meerut, in Sessions Trial No.533 of 2022 (State vs. Sohanveer), under Sections 147, 148, 149, 452, 307, 302 IPC, police station Sardhana, district Meerut, whereby, the application filed by the revisionist/informant under Section 319 CrPC for summoning of opposite party No.2 and 3 as accused, has been rejected.
3. It has been argued by learned counsel for the revisionist that the first information report of this case was lodged against nine accused persons including the opposite party No.2 and 3 but during investigation, the said opposite parties were exonerated by the police and no charge-sheet was filed against them. During trial of accused persons, after examination of informant/P.W.1 Ajay Kumar, the informant has moved an application under Section 319 CrPC for summoning of opposite part No.2 and 3, which has been rejected by the court below without consideration evidence on record. Learned counsel submitted that in his statement before the court, P.W.1 Ajay Kumar has clearly named both the opposite parties and stated that they were also involved in the incident, which resulted into murder of the mother of informant and there was sufficient evidence against the opposite party No.2 and 3 for their summoning under Section 319 CrPC. Referring to the facts of the matter and statement of P.W.1 Ajay Kumar, it was submitted that impugned order is liable to be set aside.
4. Learned A.G.A and learned counsel for the opposite party No.2 and 3 have opposed the revision and argued that there is no illegality or perversity in the impugned order. Learned counsel for the opposite party No.2 and 3 pointed out the cross examination of P.W.1 Ajay Kumar, wherein the said witness has admitted that there is nothing in the tehrir to show his presence at the spot and it is also not mentioned in the tehrir that he has seen the incident and that even in his examination-in-chief, he has not stated that he has seen the incident. Referring to the cross examination of P.W.1 Ajay Kumar, it was submitted that in view of facts emerged in his cross examination, it is apparent that he has not seen the incident and thus, on the basis of his statement, no case for summoning of opposite party No.2 and 3 is made out. It was also submitted that once the cross-examination of P.W.1 Ajay Kumar has been conducted, thus, his whole statement has to be considered for deciding the application under Section 319 CrPC. It was submitted that there is no illegality or perversity in the impugned order.
5. I have considered rival submissions and perused the record.
6. 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.
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(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."
7. By perusing the provisions 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. In case of Hardeep Singh Vs State of Punjab 2014 0 Supreme (SC) 27, 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.
8. The issue regarding exercise of powers under Section 319 Cr.P.C. has also 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."
9. 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.
10. Keeping in view of the aforesaid legal position, in the instant case, it may be seen that opposite party No.2 and 3 namely, Neelam and Ravindra, were named in the first information report but during investigation their involvement was not found and thus, they were exonerated. During trial of co-accused persons, after statement of P.W.1 Ajay Kumar, the revisionist has moved an application under Section 319 CrPC for summoning of opposite party No.2 and 3 as accused. It was pointed out that in his cross-examination, P.W.1 Ajay Kumar has admitted that in the tehrir (complaint), it has not been mentioned that he was present at the spot or that he has seen the incident. He further admitted that he has not told the investigating officer that he has seen the incident and that he has also not mentioned in the tehrir that which of the accused has fired at the deceased. Considering the statement of P.W.1 Ajay Kumar as a whole and applying the aforesaid legal position, it cannot be said that impugned order, by which the application of informant under Section 319 CrPC was rejected, is suffering from any material illegality or perversity or error of jurisdiction, so as to require any interference by this court. In view of all attending facts and circumstances of case, mere bald statement of P.W.1 Ajay Kumar that opposite party No.2 and 3 were also involved in the incident would not be sufficient to summon them as accused. Hence, the revision lacks merit and thus, liable to be dismissed.
11. However, the prosecution would be at liberty to move a application under Section 319 CrPC after statements of alleged injured witnesses are recorded before the trial Court.
12. Revision is dismissed.
Order Date :- 6.2.2023 Neeraj