Allahabad High Court
Satish And Another vs State Of U.P. And Another on 21 January, 2020
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 71 Case :- APPLICATION U/S 482 No. - 2984 of 2020 Applicant :- Satish And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shishir Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri S. K. Tiwari, learned counsel for applicants, learned AGA for State and perused the material available on record.
2. Applicants have invoked jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") challenging the order dated 07.09.2017, passed by Additional District Judge (FTC-1), Gautam Budh Nagar, in Sessions Trial No. 377 of 2016, Crime No. 791 of 2015, State v. Titu and Another, under Sections 307, 325, 323 IPC, Police Station Surajpur, District Gautam Budh Nagar, whereby applicants have been summoned to face the trial under the aforesaid Sections and the order has been passed on the application under Section 319 Cr.P.C.
3. Learned counsel for applicants submits that applicants have been falsely implicated in the present case, they have committed no offence and prosecution story is false and fake. It has been further submitted that although applicants are named in the FIR but during investigation, Investigating Officer collected the evidence and found no offence against the applicant and submitted charge sheet against other accused exonerating the applicants; Trial Court wrongly appreciated and summoned the accused invoking jurisdiction under Section 319 Cr.P.C. without proper application of mind. It has been further submitted that one day prior to this incident Informant teased the wife of the applicant, for which, applicants lodged an FIR against him in the Police Station concerned, therefore, in reaction thereof present FIR was lodged against the applicants. It has been further submitted that CCTV footage, involvement of applicants of commission of crime was not found only they were found standing there at the time of incident on the spot and without active participation in the crime is not an offence. He showed some documents and statement in support of his contention.
4. Learned AGA opposed the submission made by learned counsel for applicant and submitted that PW-1 and 2 supported the prosecution case during trial and on the application of PW-1 made under Section 319 Cr.P.C., Trial Court considered the evidence of PW-1 and 2 and rightly passed the impugned order.
5. Brief facts giving rise to present case are that: -
PW-1, Pinki, lodged an FIR in Police Station concerned stating that on 19.11.2015 at about 9:30 pm, his husband was returning after his duty when he reached at the gate of .. accused Satish, Mukesh, Titu and Dinesh assaulted him with their respective weapons. Satish and Mukesh having Iron Rod while Titu was having Lathi and knife, Dinesh was also having Lathi. They were also assaulting with fits and kicks. On hearing the alarm raised by one Hakim, she reached on the spot at once and saw that her husband Surendra was lying on the earth and all those four persons were assaulting him; his husband received serious head injury; his leg and hand was also fractured; she called Police making phone to 100 number; her husband was taken to Government Hospital, NOIDA by Police for treatment where he was admitted and remained about 10 days in the hospital. Matter was investigated by Investigating Officer who filed charge sheet against Titu and Dinesh exonerating the present applicants.
During trial, PW-1 and 2 were examined in the Court. PW-1 and 2 supported the prosecution case as narrated in FIR and told the involvement of present applicants in the commission of crime.
Informant, PW-1, moved an application No. 22-B before the Trial Court to summon the present accused-applicants under Section 319 Cr.P.C.
6. PW-1, Pinki, in his statement that on 19.11.2015, at about 9:30 pm, on hearing the alarm made by one Hakim, she reached at once on the spot and saw that his husband was lying on the earth and all the four persons namely Satish, Mukesh, Titu and Dinesh were assaulting his husband with their respective weapons; her husband received serious injury in his head and leg with fracture; her husband was taken to hospital by Police where he remained admitted in the hospital about 10 days. She lodged the FIR. PW-2, Surendra Singh, injured, stated in his statement that on 19.11.2015 at about 9:00 pm, when he entered in the gate of Colony, Satish, Mukesh, Titu and Dinesh assaulted him with their respective weapon like iron rods and knives causing serious injuries on his head and other parts of the body. He was admitted to Government Hospital, NOIDA where he was medically treated. Report of incident was lodged by his wife.
7. Court below has summoned the applicants to face the trial under the aforesaid Sections, vide impugned order, relying on FIR as well as statement of PW-1 and 2.
8. Section 319 of The Code Of Criminal Procedure, 1973 reads as under :-
"Section 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.
(2)Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(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."
9. In Anil Arya v. State of U.P. and Others, Criminal Revision No. 1216 of 2005, decided on 09.09.2016, this Court held as under :-
"Whether evidence is correct or not or credible enough or not to sustain conviction and punishment is a matter which would be seen after revisionist put in appearance, lead evidence and thereafter Trial Court examine the entire evidence and record its finding thereon, but at the stage of summoning of revisionist on the basis of aforesaid statement in Trial under Section 319 Cr.P.C., the probable defence of accused summoned under Section 319 Cr.P.C. cannot be examined for the first time in a revisional jurisdiction by this Court."
10. In Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92, Court examined following five questions:
"(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(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?
(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?
(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?
(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 charged or who have been discharged?"
11. The aforesaid questions have been answered in para 117 of judgment as under :-
Question Nos. (i) and (iii) A. In Dharam Pal and Ors. v. State of Haryana and Anr. 2004 (13) SCC 9, 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) 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) 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) 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, insofar 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.
12. The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge-sheet is filed by Police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C, Court has said that test are same as applicable for framing charge.
13. The above view was followed in Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC 706 holding:
" ... since it is a discretionary power given to the court Under Section 319 Code of Criminal Procedure 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. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."
14. Recently in Shiv Prakash Mishra Vs. State of Uttar Pradesh and others (2019) 7 SCC 806, Court relying on the above authorities as also Kailash Vs. State of Rajasthan and another (2008) 14 SCC 51, held as under:
"The standard of proof employed for summoning a person as an Accused person under Section 319 Code of Criminal Procedure is higher than the standard of proof employed for framing a charge against the Accused person. The power Under Section 319 Code of Criminal Procedure should be exercised sparingly. As held in Kailash Vs. State of Rajasthan and another (2008) 14 SCC 51, "the power of summoning an additional Accused Under Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure would be used by the court." (emphasis added)
15. In view of above, it is clear that in order to summon a person under Section 319 Cr.P.C., mere taking of name is not sufficient but there must be something more to show implication of person who has been sought to be summoned.
16. Aforesaid statement of Informant and Injured clearly show that applicants and other co-accused were involved in the commission of crime and they also participated in Marpeet. Whether evidence of witnesses is correct or not, credible enough or not to sustain conviction, is a matter which would be seen after applicants put in appearance, lead evidence and thereafter, Trial Court examines the entire evidence and records its finding thereon. At the stage of summoning of the applicants on the basis of aforesaid statements for trial, probable defence of accused-applicants summoned under Section 319 Cr.P.C. cannot be examined for the first time under the jurisdiction of 482 Cr.P.C. by this Court.
17. Facts of the present case does not fall under any circumstances mentioned in Para No. 102 of State of Haryana, and Others v. Bhajan Lal and Others, 1992 Supp. (1) SCC 335 which reads as under :-
"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
18. Looking to the facts of this case and in the light of exposition of law, as discussed above, I find that here is not a case where mere name of applicants has been taken but details of incident have been given showing the manner in which applicants have acted and committed crime. Hence, it cannot be said that there is no material whatsoever and also that on mere probability of complicity they have been summoned but there is appropriate material and evidence to justify summoning of applicants under Section 319 Cr.P.C. and I find no manifest error in the order passed by Court below.
19. The application lacks merit and is accordingly dismissed. .
Order Date :- 21.1.2020 Akram