Allahabad High Court
Shiv Kumar And Another vs State Of U.P. And Another on 20 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- CRIMINAL REVISION No. - 5027 of 2011 Revisionist :- Shiv Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Amit Daga,Akash Tyagi Counsel for Opposite Party :- Govt. Advocate,R.K.Pandey Hon'ble Syed Aftab Husain Rizvi,J.
Rejoinder affidavit filed on behalf of revisionists, is taken on record.
Case taken up in the revised list. Learned counsel for the revisionists and learned A.G.A. are present. None is present for the O.P. No. 2.
Heard Sri Amit Daga, learned counsel for the revisionists and learned A.G.A. for the State.
This criminal revision has been filed against the order dated 17.10.2011 passed by additional Session Judge/Special Judge (E.C. Act), Meerut in S.T. No. 265 of 2007 (State Vs. Mamta and others). By the impugned order learned court below in exercise of powers under section 319 Cr.P.C. on application of the prosecution has summoned the revisionists-accused to face trial for offence under section 302/34 and 201 IPC.
The facts are that with regard to incident alleged to have taken place on or after 15.06.2006 at some unknown time an FIR was lodged by Rajendra Singh on 20.8.2006 at 11:30 a.m. with the allegations that sole son of complainant namely Dinesh Kumar was doing some job in travel agency and he was married to Smt. Mamta wife of Shiv Kumar on 19th May, 2002. It is further alleged that since last one year some disputes were going on between Dinesh and Smt. Mamta, on the issue of mobile, as Smt. Mamta always kept mobile with her and she used to talk with some unknown person for long-long time. It is further alleged that on 15.6.2006 Smt. Mamta, her mother Smt. Sharmistha along with two unknown girls came at the residence of informant as soon as they came, Smt. Mamta started packing and when informant's wife inquired Smt. Mamta that where she is going then she disclosed that her Aunt is sick and she along with her mother, husband and others is going to meet her aunt at Shahdara, New Delhi. It is further alleged that deceased Dinesh being husband of Smt. Mamta also accompanied them and in the evening when the informant came back and tried to know the welfare of the aunt of Smt. Mamta then it was revealed that she is hale and hearty, it created suspicion in mind and to struck to complainant that Smt. Mamta has taken Dinesh on false pretext. It is further alleged that on 18.6.2006 at about 7:00 P.M. Sub Inspector of Police Station Partapur, District Meerut came to the resident of informant and placed one photograph of unknown dead body and from said photo it was identified by informant that dead body is of Dinesh. Cloths, shoes, belt of deceased Dinesh was also identified by the informant and Amit (friend of deceased) and thereafter dead body of Dinesh (which was kept in mortuary) was also identified by informant. The dead body of the deceased was found at the bank of drainage, situated in the North side of Mohaddinpur Sugar Factory regarding which an information was given by Bhupendra Singh and thereafter inquest proceeding was conducted. Although Shiv Kumar, Amit, Smt. Mamta and Smt. Sharmistha and two unknown girls were named in the FIR but after investigation charge-sheet was submitted only against Mamta and Amit Rana @ Amit Verma. During investigation after examination of two witnesses an application under section 319 Cr.P.C. was filed by the prosecution to summon Smt. Sharmistha and her father Shiv Kumar. The trial court vide order dated 2.11.2007 has allowed this application and summoned only Smt. Sharmistha. Aggrieved with this the complainant filed a Criminal Revision No. 3900 of 2007. This court dismissed the revision but also observed that the revisionist may move an application under the relevant provision of the Code of Criminal Procedure after recording of statements of other prosecution witnesses if it deposed regarding involvement of respondent nos. 2 and 3. This order was also challenged by accused Smt. Sharmistha in Criminal Revision No. 3487 of 2007 and this revision was also dismissed. Thereafter, two more witnesses were examined by the prosecution. After examination of aforesaid two other witnesses an application dated 11.2.2009 was again filed under section 319 Cr.P.C. to summon Amit and Shiv Kumar. Learned trial court allowed the application and summoned Amit to face trial under section 302 IPC. This order was challenged in Criminal Revision No. 4844 of 2010 and this court vide order dated 9.11.2010 allowed this revision and set-aside the order dated 18.09.2010 and directed the trial court to decide the application under section 319 Cr.P.C. a fresh in accordance with the directions of the Apex Court in the cases of Mohd. Shafi and Sarabjit (supra). Thereafter, the learned trial court by the impugned order has again allowed the application and summoned the revisions-accused Amit and Shiv Kumar for offence under section 302/34 and 201 IPC.
Learned counsel for the revisionists contended that although the revisionists are named in the FIR but there is no allegations against them. Their names are as a passing reference. During investigation complicity of the revisionists-accused were not found and hence, no charge-sheet was submitted against them. It is further contended that witnesses in their statements under section 161 Cr.P.C. have also not stated about any specific role of the revisionists-accused even in their examination-in-chief before the trial court they have not stated about any active role played by the revisionists-accused. For the first time in their cross-examination story of last seen has been developed and the learned court below relying on the aforesaid testimony has passed the impugned order. It is next contended that the trial of co-accused Amit Rana @ Amit Verma and Smt. Sharmistha in S.T. No. 265 of 2007 has been concluded and they have been acquitted by the trial court vide judgment and order dated 12.6.2014. A Criminal Misc. Application U/s 372 Cr.P.C. (leave to appeal) No. 327 of 2014 was filed against the aforesaid judgment and order of acquittal. This court vide order dated 5.9.2014 has dismissed it. Smt. Mamta tried separately in S.T. No. 265A of 2007 and she was also acquitted by the trial court vide judgement and order dated 1.12.2014. This order has been challenged in Government Appeal No. 842 of 2015 which is pending. Learned counsel contended that at the most the role and evidence against the revisionists-accused is similar to that of Amit Rana @ Amit Verma and Smt. Sharmistha. They have already been acquitted and their judgements and order of acquittal has become final as appeal against it has been dismissed. There is no cogent evidence against the revisionists-accused which is of the standard fixed for exercising the powers under section 319 Cr.P.C. Further the trial of the revisionists-accused will not bear any fruitful purpose as the co-accused Amit Rana @ Amit Verma and Smt. Sharmistha has already been acquitted on the similar evidence. The impugned order has been passed in a cavalier and cursory manner and is not sustainable in the eye of law.
Learned A.G.A. opposed the prayer.
A Constitution Bench of Apex Court in Hardeep Singh Vs. State of Punjab and others AIR (2014) Supreme Court 1400 has settled scope and ambit of Section 319 Cr.P.C. The relevant paras 98 and 99 are quoted below:
"98. Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary 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.
99. Thus, we hold that though only a prima face 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."
The Apex Court in the case of Brijendra Singh Vs. State of Rajasthan (2017) 7 SCC 706 in para no. 13 has observed as follows:
"In order to answer the question, some of the principles enunciated in Hardeep Singh 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 319 Cr.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 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 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 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."
From the material on record it transpires that no specific allegation has been made against the revisionists-accused. It is a case of circumstantial evidence and there is no eye witness account. The witnesses examined during trial have only reiterated the allegations of the FIR and their statements recorded under section 161 Cr.P.C. It is also worth to mention that previously application under section 319 Cr.P.C. in respect of the revisionists-accused was dismissed, later on on the basis of statements of P.W. 3 and P.W. 4 the impugned order has been passed. It is settled law that power under section 319 Cr.P.C. is an extra ordinary power which should be exercised sparingly and cautiously when there is cogent and sufficient evidence. The standard of the evidence required more than of a prima facie case. From the material on record it transpires that the evidence is not cogent and sufficient against the revisionists-accused. Further the co-accused Amit Rana @ Amit Verma and Smt. Sharmistha have already been acquitted by the trial court and this order has become final so the fate of trial is well known. It will not bear any purpose to put the revisionists-accused for trial. The impugned order suffers from material illegality and is liable to be set-aside.
The revision is allowed and the order dated 17.10.2011 is hereby set-aside.
Order Date :- 20.2.2023 Masarrat