Allahabad High Court
Samar Bahadur Singh And Another vs State Of U.P. And Another on 24 November, 2020
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL REVISION No. - 1885 of 2020 Revisionist :- Samar Bahadur Singh And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ajay Singh,Sr. Advocate(Sri Amarendra Nath Singh ) Counsel for Opposite Party :- G.A.,Chandra Kumar Singh,Rajesh Kumar Singh Hon'ble Dinesh Pathak,J.
Heard Sri Amarendra Nath Singh, learned Senior Advocate assisted by Sri Ajay Singh, learned counsel for the revisionists, Sri Rajesh Kumar Singh, learned counsel for the opposite party no. 2 and learned A.G.A. for the State.
Instant revision has been preferred by the revisionists against the summoning order dated 30.9.2020 under Section 319 Cr.P.C. passed by the Addl. Sessions Judge (FTC-II), District - Ballia in S.T. No. 39 of 2019 (State vs. Lallan Singh & others) arising out case crime no. 350 of 2017 under Sections 147, 148, 308, 324, 323, 504, 506 I.P.C., P.S. Pakadi, District - Ballia.
The first information report has been lodged by Ramroop Singh with respect to the incident occurred on 21.7.2017 at about 8 a.m. in which accused persons including the present revisionists came on the agricultural field of the informant by tractor and started pounding him and others. On the resistance they started abusing and thrashed the persons of the informant side by using sticks and spade. Consequently, Ramroop Singh and others sustained serious injuries. After due investigation, the investigating officer has not arraigned the present revisionists in the charge-sheet. Feeling aggrieved, the informant (opposite party no. 2) moved an application with a prayer to issue process against the present revisionists under Section 319 Cr.P.C.
Learned counsel for the revisionists submits that the court below has illegally allowed the application under Section 319 Cr.P.C. without applying his judicial mind and passed the impugned order in a very casual and cavalier manner. The court below has illegally relied upon the statement of P.W. 1 - Ramroop Singh and P.W. 2 - Satya Kumar Singh who had made contradictory statement with respect to complicity of the present revisionists in the commission of crime. Learned counsel for the revisionists has drawn attention of the Court to the statement made by Ramroop Singh (P.W.1) (annexure-4) who, in his examination-in-chief, had stated the complicity of the present revisionists in the commission of crime but in his cross-examination, he had not taken the name of the present revisionists in the alleged commission of crime. Likewise, he has also drawn attention of the Court to the statement of P.W. 2 - Satya Kumar Singh who, in his examination-in-chief, had taken the name of the revisionists but in cross-examination he had taken the name of three persons namely, Lallan Singh, Om Prakash Singh and Achal Bahadur Singh who were ploughing the agricultural field at the time of incident. It is further submitted that there is a glaring contradictions in the statement of the aforesaid two prosecution witnesses and on the basis thereof, the complicity of the present revisionists in the commission of crime cannot be inferred. It is further submitted that with respect to the same incident, another FIR was also lodged from the revisionists side by Lallan Singh who is an accused in the present case, registered as case crime no. 0351 dated 21.7.2017 whereas earlier FIR with respect to the same incident was registered as case crime no. 0350 dated 21.7.2017. Learned counsel for the revisionists has also drawn attention of the Court to the statement of several witnesses, who were examined by the investigating officer, had made their statement under Section 161 Cr.P.C. and denied the complicity of the present revisionists in the commission of crime. In the case diary, the investigating officer has taken the statement of several witnesses namely, Jai Bahadur Singh, Jawala Prasad, Anoop Kumar, Tilak Ram, Nanach Kumar Singh, Ramji Singh, Badan Tiwari, Manoj Kumar Srivastava, Prakesh Singh, Shyam Bihari Singh, Lal Bihari Singh and Krishna Kumar Singh who had clearly stated that Gaurav Singh son of Lallan Singh and Samar Bahadur Singh son of Gauri Shankar Singh were not present on the place of occurrence and they have falsely been implicated.It is further submitted that from the statement of the witnesses including the P.W. 1 and P.W. 2 it reveals that incident took place on the instigation of the informant side. It is further submitted that investigating officer has rightly not arraigned the present revisionist in the charge-sheet, after thorough investigation and after taking into account all the facts and evidences, came to the conclusion that the revisionists are innocent and were not present at the time of incident.
Per contra, learned counsel for the opposite party no. 2 submits that the court below has rightly passed the summoning order under Section 319 Cr.P.C. after considering the material available on record and also considering the facts and circumstances of the case.Statements of P.W. 1 and P.W. 2 evinced the complicity of the present revisionists in the commission of crime and there is no contradictions in their statement in this regard. He has drawn attention of the Court to the statement of P.W. 1 wherein he, in his earlier part of the cross-examination, had stated that Lallan Singh, Om Prakash Singh and Gaurav Singh had attacked on Satya Kumar Singh, Sunil Singh and Santosh Singh by spade. It is further submitted that the statement of P.W. 1 & P.W. 2 are sufficient to make a prima-facie case qua complicity of the present revisionists in the commission of crime and no further evidence is required in this regard. He has further submitted that the court below has discussed the statement of of P.W. 1 and P.W. 2 in detail and, after considering the dictum of the Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab has rightly came to the conclusion that both the revisionists are involved in the commission of crime and they are liable to be served with process for trial along with other co-accused.
Per contra, learned A.G.A. has submitted that the impugned order passed under Section 319 Cr.P.C. is legal. There is no illegality, infirmity or ambiguity in the order passed by the court below. The statement of P.W. 1 and 2 clearly make out complicity of the revisionists in the commission of crime.
Scope and importance of the provisions as embodied under Section 319 Cr.P.C. has been discussed in detail by the Constitution Bench of the Supreme Court in the case of Hardeep Singh vs. State of Punjab & others, (2014) 3 SCC 92. The verdict of the aforesaid Constitution Bench was later considered by the Supreme Court in the case of Brijendra Singh and others vs. State of Rajasthan, (2017) 7 SCC 706. The relevant paragraphs 12 & 13 of the aforesaid judgement are reproduced hereunder :
"12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh's case and answered in the following manner :
"95. At the time of taking cognizance, the Court has to see whether a prima-facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the Court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
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105. Power under Section 319 CrPC 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 CrPC. 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 CrPC to form any opinion as to the guilt of the accused."
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 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 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 another case Labhuji Amratji Thakor & others Vs. The State of Gujarat and another, 2018 (0) Supreme (SC) 1147, Hon'ble Apex Court, in paragraph 9, has discussed the scope for Section 319 Cr.P.C., which is quoted as under:-
"9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is "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." The present is a case, where the trial court had rejected the application filed by the prosecution under Section 319 Cr.P.C. Further, in the present case, the complainant in the F.I.R. has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure. After carrying investigation, the Charge Sheet was submitted in which the appellants names were also not mentioned as accused. In the statement recorded before the Police, the victim has named only Natuji with whom she admitted having physical relations and who took her and with whom she went out of the house in the night and lived with him on several places. The mother of victim in her statement before the Court herself has stated that victim girl returned to the house after one and a half months. In the statement, before the Court, victim has narrated the entire sequence of events. She has stated in her statement that accused Natuji used to visit her Uncle's house Vishnuji, where she met Natuji. She, however, stated that it was Natuji, who had given her mobile phone. Her parents came to know about she having been given mobile phone by Natuji, then they went to the house of Natuji and threatened Natuji."
In a recent case Periyasami and others vs. S. Nallasamy, (2019) 4 SCC 342, the Hon'ble Apex Court, in paragraphs 14 & 15, has held as under:-
"14. In the First Information Report or in the statements recorded under Section 161 of the Code, the names of the appellants or any other description have not been given so as to identify them. The allegations in the FIR are vague and can be used any time to include any person in the absence of description in the First Information Report to identify such person. There is no assertion in respect of the villages to which the additional accused belong. Therefore, there is no strong or cogent evidence to make the appellants stand the trial for the offences under Sections 147, 448, 294(b) and 506 of IPC in view of the judgment in Hardeep Singh case (supra). The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.
15. The High Court has set aside the order passed by the learned Magistrate only on the basis of the statements of some of the witnesses examined by the Complainant. Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the Complainant is a husband and has initiated criminal proceedings against family of his in-laws and when their names or other identity were not disclosed at the first opportunity."
Matter requires consideration.
Admit.
Learned A.G.A. has accepted notice on behalf of the State respondent no. 1.
Counsel for the opposite party no. 2 is granted three weeks time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List after expiry of the aforesaid period.
Till the next date of listing effect and operation of the impugned order dated 30.09.2020 under Section 319 Cr.P.C. passed by the Addl. Sessions Judge (FTC-II), Ballia in S.T. No. 39 of 2019 (State of U.P. vs. Lallan Singh & others) arising out of case crime no. 350 of 2017 under Section 147, 148, 308, 324, 323, 504, 506 I.P.C., P.S. Pakadi, District - Ballia shall remain stayed.
Order Date :- 24.11.2020 nd