Allahabad High Court
Mursaleem And 3 Others vs State Of U.P. And Another on 5 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 90 Case :- CRIMINAL REVISION No. - 4986 of 2022 Revisionist :- Mursaleem And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Subhash Chandra Yadava,Adarsh Kumar,Byas Kumar Prasad,Mohd. Aslam Counsel for Opposite Party :- G.A. Hon'ble Syed Aftab Husain Rizvi,J.
Heard Mr. Mohd. Aslam, learned counsel for the revisionists, learned AGA for the State and Mr. A.Z. Khan, learned counsel for opposite party no.2.
This criminal revision has been filed against the order dated 28.09.2022 passed by Additional Sessions Judge court no.1 Saharanpur in S.T. No.684 of 2021 Crime no.645 of 2023 U/s 498A, 304B IPC and 3/4 D.P. Act, P.S. Kotwali District Saharanpur. By the impugned order, the learned court below on an application U/s 319 Cr.P.C. filed by the complainant/ prosecution has summoned the revisionist accused Mursaleem, Saleem, Shaukeen and Sameer for offence U/s 498A, 304B IPC and 3/4 D.P. Act.
The opposite party no.2 lodged an FIR on 21.12.2021 at 8:20 alleging therein that the marriage of Shama her cousin sister was solemnized with Kaleem alias Chaudhary sixteen months ago. Dowry according to status was given but the husband Kaleem alias Chaudhary, Jeth Mursaleem and Saleem, Devar Shoukeen and mother-in-law Musaida of Shama were not satisfied with it and were demanding Rs. 2 lac as additional dowry and were harassing and torturing her. Today on 21.12.2021 at about 7:00 am the complainant got the information that Kaleem (the husband), Saleem (Jeth), Sameer (devar) and Musayada (mother-in-law) have committed the murder of Shama by cutting her throat. The dead body is lying at village Shekhpura. After investigation, charge-sheet was submitted against Kaleem alias Chaudhary and Musayada only. The remaining named accused of the FIR were exonerated. During trial, the complainant Asif was examined as P.W.-1. Thereafter the complainant/ prosecution moved an application U/s 319 Cr.P.C. to summon the other co-accused named in the FIR. The learned court below by the impugned order has allowed the aforesaid application.
The learned counsel for the revisionist contended that the revisionist never demanded any dowry nor tortured the deceased. They have been falsely implicated with malafide intention and ill motive just because they are brothers of the husband of the deceased. There are general allegations against them regarding demand of dowry while they cannot be beneficiary of it. It is further contended that the Investigating Officer recorded the statements of number of independent witnesses who have stated that the revisionist were not present at the time of incident. The Investigating Officer has also collected the evidence that the revisionist were working in a factory Organic Food Pvt Ltd. Sonipat and they were present there. During surveillance the location of mobile phones of the revisionist was found at Sonipat. On the basis of the aforesaid evidence collected during the course of investigation, the Investigating Officer does not found the involvement of the revisionist accused in the incident and has rightly exonerated them. The learned court below without considering the objection filed by the revisionist and without considering the evidence on record has summoned revisionist by the impugned order which is wholly illegal, arbitrary and not sustainable in the eye of law. The revisionist has no concern with the offence and the final report has been submitted in their favour but the learned trial court ignoring the final report wrongly and illegally summoned the revisionist. The learned counsel citing the case law of Vikas Rathi vs. State of U.P. (2023) 0 Supreme (SC) 195 further contended that the powers U/s 319 Cr.P.C. is an extra ordinary power and which should be exercised sparingly and only in those cases where the circumstances of the case so warrants and should not be exercised in a cavalier manner. Learned counsel also submitted that the impugned order does not satisfy the test laid down by the Apex Court for exercising the powers U/s 319 Cr.P.C.
Learned counsel appearing for opposite parties contended that the revisionist accused are named in the FIR. There are allegations against them that they are also involved in the alleged crime. The deceased has been done to death by cutting her throat in a brutal manner. She has suffered incised wounds as per postmortem report. It is further contended that the complainant has corroborated the allegations of the FIR and has stated about the involvement of all the accused named in the FIR in the incident. The evidence of alibi is a very weak evidence in this matter because the muster roll filed by the revisionist clearly indicates that this is manufactured one because only against the name of accused persons namely Saleem, Kaleem and Mursaleem father's name are mentioned while the other entries does not record the father's name. It is further stated that the alleged factory is situated at Panipat while the place of occurrence is Saharanpur which is not far away from the Panipat and this possibility cannot be ruled out that the accused persons may travel to Saharanpur and return in a short period. It is further contended that the Investigating Officer in an improper manner has exonerated the revisionist accused. During trial the complainant has been examined and he has again reiterated his previous statement recorded U/s 161 Cr.P.C. and the allegations of the FIR. The involvement of the revisionist accused is established from the evidence produced by the complainant. So there is sufficient evidence against the revisionist accused. Lastly it is contended that one of the revisionist Saleem has been arrested during pendency of this revision.
The FIR of this case has been lodged by Asif the cousin of the deceased Shama. It is alleged that Kaleem alias Chaudhary the husband, jeth Mursaleem and Saleem, devar Shaukeen and mother-in-law Musayada were not pleased with the given dowry and used to demand of Rs. 2 lac and were harassing and torturing Shama (deceased). It is further alleged that on 22.12.2021 at about 7:00 am the complainant received the information that Shama has been done to death by her husband Kaleem alias Chaudhary, jeth Saleem and devar Sameer and mother-in-law Musayada, by cutting her throat. So the allegations of demand of dowry, torture and harassment is against husband Kaleem alias Chaudhary, jeth Mursaleem and Saleem, devar Shaukeen and mother-in-law Musayada while the allegations of committing murder is against husband Kaleem alias chaudhary, jeth saleem, devar Sameer and mother-in-law Musayada. There is no allegations of committing the murder against revisionist no.1 Mursaleem (jeth) and revisionist no.3 Shaukeen (devar). According to postmortem report, incised wound have been found on the body of the deceased and cause of death is ante mortem injuries. So it is a homicidal death. During investigation, the Investigating Officer has recorded the statement of a number of witnesses and they have not assigned any role to the revisionist. The Investigating Officer has also collected the evidence regarding the presence of jeth Mursaleem. His location has been found at the time of incident at Sonipat. Devar Sameer was aged about 13 years at the time of incident while no role of committing murder has been assigned to revisionist no.3 Shaukeen the other devar. It also shows that Shaukeen was not present at the time of incident. The trial court only on the basis of statement of the complainant has passed the impugned summoning order U/s 319 Cr.P.C.
The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. The relevant paras 98 and 99 are as follows:
"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."
In the case of Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC page 706 the Apex Court has reiterated the principles laid down in Hardeep Singh's case. The relevant para no. 13 is quoted 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 utilized 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."
In order to exercise the powers of Section 319 Cr.P.C. the Court will have to objectively satisfy itself that the evidence warrant that a person not brought up for trial should be required to face the trial.
In view of the law laid down by the Apex Court, it is clear that powers U/s 319 Cr.P.C. are to be used when there are strong and cogent evidence. The standard of evidence required for exercising such powers is more than that of a prima-facie case.
Applying the law as laid down on the present set of facts, it is clear that there is no strong evidence and cogent reason to summon the revisionist nos. 1, 3 & 4 to face trial in exercise of powers U/s 319 Cr.P.C. While deciding the application U/s 319 Cr.P.C. the learned trial court has failed to appreciate the entire facts, evidence and other material available on record in respect of revisionist nos. 1, 3 & 4. The impugned order is not sustainable in the eye of law in respect of revisionist nos. 1, 3 & 4 and is liable to be set aside.
Accordingly, the revision is partly allowed. The impugned order dated 28.09.2022 in respect of revisionist nos. 1, 3 & 4 is hereby set aside.
For revisionist no.2 Saleem, the revision stands dismissed.
Order Date :- 5.5.2023 C. MANI