Allahabad High Court
Vinesh Saxena vs State Of U.P. And Another on 12 February, 2020
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- APPLICATION U/S 482 No. - 17284 of 2016 Applicant :- Vinesh Saxena Opposite Party :- State of U.P. and Another Counsel for Applicant :- Preet Pal Singh Rathore Counsel for Opposite Party :- G.A.,Kuldeep Kumar Dixit,Prem Prakash Hon'ble Rahul Chaturvedi,J.
Heard Sri Preet Pal Singh Rathore, learned counsel for the applicant and learned AGA for the State.
Case called out in the revised list.
The case is peremptorily listed today.
Though the case is peremptorily listed today and case called out in the revised call but none has appeared on behalf of opposite party no.2.
Learned counsel for the applicant has given the written information to Kuldeep Kumar Dixit, learned counsel for the opposite party no.2 on 06.02.2020 but today when case is taken up Sri Kuleeep Kumar Dixit or Prem Prakash have not appeared before this Court. Despite of the fact this case is peremptorily listed, no one has appeared on behalf of opposite party no.2. Left with no other option with the aid and help of learned AGA, this Court is proposing to decide the present 482 application.
By means of the present 482 application, applicant is assailing the order dated 14.04.2016 passed by Additional District & Sessions Judge, Court No.7, Budaun in S.T. No. 993 of 2012 arising out of case crime no. 3876 of 2011 by which the applicant Vinesh Saxena (non accused) was summoned to face the aforementioned trial under Sections 307/34, 323, 504, 506 IPC, P.S. Civil Lines, District Budaun in exercise of power under Section 319 Cr.P.C.
Learned counsel for the applicant has raised number of factual as well as legal aspect of the issue, which are formulated herein below.
Contention raised by the counsel that on 21.10.2011 around 4.45 p.m., informant Suresh Chandra has lodged the NCR which was numbered as NCR No. 248 of 2011 under Sections 323, 504, 506 IPC against Vinesh Saxena s/o Lakhpti and Amit Kumar Saxena, s/o Vinesh Saxena, which was later on converted on 27.11.2011 by conversion report no. 36 after adding section 307 IPC. As per version of the NCR on the fateful day while returning home from the court after attending the date, the informant along with his daughter, as soon as they reached near Women Hospital, Vinesh Saxena and his son Amit Saxena started hurling filthy abuses, when objected then they have brutally assaulted causing severe grievous injuries to her daughter. The medical of Vinesh Saxena was conducted on the same day and as per the injury report all the injuries are fresh in nature except injury nos. 2 and 3 as caused by friction against some hard and rough object. However rest of the injuries are caused by hard and blunt object and injury nos. 4, 5 and 6 kept under observation, rest of the injuries are simple in nature.
However after registering the case. the investigation of the case started rolling and eventually on 12.12.2011, the police after added Section 307 IPC among of pre-existing sections of IPC and under Section 307, 323, 504, 506 IPC against Amit Kr. Saxena son of Vinesh Kr. Saxena only dropping, the name of the applicant.
Since the case was triable by Sessions and matter was committed to the court of Sessions and charges were framed against Amit Kr. Saxena after denial from charges who was put to trial and three prosecution witnesses, PW-1, PW-2 and PW-3 were examined. PW-1 Meenu, PW-2 Ram Kishore and PW-3 Dr. A.K.Verma were recorded and soon after that application under Section 319 Cr.P.C. was moved on 21.10.2015 of which learned Sessions Judge after passing the impugned order have summoned the applicant to face the prosecution in S.T. No. 993 of 2012, under Section 307/34, 323, 504, 506 IPC. On 27.05.2016, the co-ordinate Bench of this Court while entertaining the above 482 application has stayed the effect and operation of impugned order dated 14.04.2016 passed by Additional Sessions Judge, Court No.7, Badaun, while issuing notices to opposite no.2.
Pleading between the parties have exchanged and matter has ripe for final submissions.
It is contended by the counsel that the orders passed by the learned trial judge is perse perverse and non-speaking and passed without application of judicial mind, which is well short of standard of prove contained in the plethora of judgements passed by Hon'ble Apex Court in this regard. It is contended by the counsel that no doubt, the name of the applicant finds place in the NCR but during investigation, the complicity of the applicant Vinesh Saxena found false in commission of the offence and therefore vide submitting its report under Section 173(@) Cr.P.C., charge sheet was submitted only against Amit Kr. Saxena and non accused/present applicant.
The basic idea objective behind incorporating Section 319 Cr.P.C. is that the real culprits should not get away unpunished and by virtue of this provision, the court is empowered to proceed against any person not shown as an accused. This laudable object U/s 319 Cr.P.C. springs out the doctrine judex damnatur cum nocens absolvitur (judge is condemned when guilty is acquitted) and this doctrine is used as a beacon light by explaining the ambit and spirit of Section 319 Cr.P.C. The courts are sole repository of the justice and it is binding duty upon them to uphold the rule of law and in order to empower them, this extraordinary power is entrusted on them. In our criminal judicial system, where it is not uncommon that the real accused, at times, get away by manipulating the investigating or a prosecuting agency. The desire to avoid the trial is so strong that an accused leave no stone unturned to absolve him at the stage of investigation or enquiry, though he is connected with the commission of the offence.
In the case of Sugreev Kumar Vs. State of Punjab (Criminal Appeal No. 509/2019) Para-12 is quoted herein below:-
"12.Thus, the provisions contained in Section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The Prima facie opinion which is to be formed for exercise of this power requires stronger evidence than more probability of complicity of a person. The test to be applied is the one which is more than a prima facie case as examined at the time of framing of charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused."
As regards degree of satisfaction requires for invoking the powers U/s 319 Cr.P.C. the Constitutional Bench of Hon'ble Court in the case of Haradeep Singh Vs. State of Punjab (2014) 3 SCC 92 (FB) has laid down the principles as follows:
"Para-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 Vs. 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.
Para 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.
Para 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."
Learned counsel for the revisionists has further canvassed that the impugned order passed by learned Sessions Judge, Budaun is well short out of degree of satisfaction prescribed by Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab.
Learned Counsel has further tried to elaborate the arguments drawing the attention of the Court to yet another case decided by Hon'ble Apex Court in the Case of Brijendra Singh and another Vs. State of Rajsthan (2017) Vol. 7 SCC 706, Paragraph No. 15, which is quoted herein below:-
15.This record was before this trial court. Notwithstanding the same, the trial court went by the depositions of the complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus "the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the I.O. during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. revisionists) complicity has come on record. There is no satisfaction of this nature.
Learned counsel for the revisionists for buttress his contention has cited yet another judgment latest citation of Hon'ble Apex Court in the Case of Periyasami and others Vs. S. Nallasamy, Crl. Appeal No. 456 of 2019 passed on 14.03.2019. Paragraph No. 15, which is quoted herein below:-
"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 can not 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-law and when their names or other identity were not disclosed at the first opportunity.
Besides this the learned Sessions Judge, Budaun has taken into account the material collecting the police during investigation and submitted the report under section 173(2) Cr.P.C. In the shape of charge sheet. The police has dropped the name of above mentioned revisionists after holding a extensive investigation in the matter and learned Sessions Judge formed his prima facie opinion. The police was also duty bound to look into the same material also formed a prima facie opinion and to see as to whether ' and stronger evidence than mere possibility of their (revisionists) complicity has come on record'. In the impugned order, there is no self satisfaction recorded by the learned Sessions Judge, Budaun while passing the impugned order.
Under the circumstances, if there is entire material on record, this court is of the considered opinion that the impugned order passed by learned Sessions Judge, Budaun is well short of standard set up by Hon'ble Apex Court in above mentioned various judgements and deserved to be quashed.
Accordingly, I have no hesitation in quashing the impugned order dated 14.04.2016 and remanded back the matter to the learned Sessions Judge, Firozabad to re-visit and reconsider the entire issue within the period of eight weeks from today in the light of ratio laid down by Hon'ble Apex Court in the cases of:-
(1) Haradeep Singh Vs. State of Punjab (2014) 3 SCC 92 (FB).
(2) Brijendra Singh and others Vs. State of Rajsthan (2017) 7 SCC 706. (3) Labhuji Amratji Thakor and others Vs. State of Gujarat (2018) Law Suit (SC) 1163. (4) Sugreev Kumar Vs. State of Punjab and others (Crl. Appeal No. 509/2019) decided on 15.3.2019 and lastly; and (5) Periyasami and others Vs. S. Nallasami (Criminal Appeal No. 465/2019 decided on 14th March, 2019.
With this observation, the present revision stands allowed/ disposed off.
Order Date :- 12.2.2020 Abhishek Sri.