Allahabad High Court
Ashok Kumar Singh vs State Of U.P. And 2 Others on 22 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:242672 Reserved on: 25.08.2023 Delivered on: 22.12.2023 In Chamber Case :- CRIMINAL REVISION No. - 3696 of 2022 Revisionist :- Ashok Kumar Singh Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Jitendra Kumar Chakraborty Counsel for Opposite Party :- G.A.,Kuwar Ritesh Kumar,Manoj Kumar Srivastava,Ram Bahadur,Suraj Singh AND Case :- CRIMINAL REVISION No. - 431 of 2019 Revisionist :- Hemant Kumar Singh @ Gopal Singh Opposite Party :- State Of U.P. And 2 Ors. Counsel for Revisionist :- Jitendra Kumar Chakraborty Counsel for Opposite Party :- G.A.,Kuwar Ritesh Kumar,Ram Bahadur,Sanjai Singh,Suraj Singh Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard learned counsel for the revisionists, learned counsel for respondent no. 2 and learned AGA for the State.
2. The Criminal Revision no. 431 of 2019 is directed against the order dated 13.12.2018 passed by learned Additional Sessions Judge, court no. 3, Ghazipur in Session Trial No. 245 of 2017 (State vs. Ashok Singh) in Case Crime no. 255 of 2016, under sections 504, 506 IPC, P.S. Kasimabad, District Ghazipur by which present revisionist Hemant Singh @ Gopal Singh named in the FIR of the case was directed to be summoned in exercise of power under section 319 Cr.P.C. to face trial for charge under section 307, 504, 506 IPC together with co-accused Ashok Kumar Singh.
3. The Criminal Revision no. 3696 of 2022 has been directed against the order dated 30.7.2022 passed by Additional District and Sessions Judge, court no. 3, Ghazipur in Session Trial No. 245 of 2017 (State vs. Ashok Singh), under sections 504, 506 IPC, P.S. Kasimabad, District Ghazipur by which application 24-B for addition of charge under section 307 IPC moved by the defacto complainant / informant has been allowed.
4. As both criminal revisions were connected together vide order dated 01.11.2022 by this Court and impugned orders were passed by trial court in same criminal case, thus, these are being decided by a common order. It is also noteworthy that Application u/s 482 No. 20571 of 2021 was de-tagged by this Court vide order dated 24.7.2023 passed in Criminal Revision no. 3696 of 2022.
5. Brief facts of the present case are that the informant Ajay Singh lodged F.I.R. on 19.4.2016 at 12:20 hours on the basis of written report addressed to SHO concerned vide case crime no. 255 of 2016, under sections 307, 504, 506, 352 IPC with averments that on 18.7.2016 at 2:00 pm, he was standing on door and was doing some earth levelling work on the way in front of his house, his co-sharer/ Pattidar, Ashok Singh and his son Hemant Singh @ Gopal Singh emerged there having armed with Pistol and asked him to stay away from throwing soil on the pathway. The informant pleaded with them that they are doing this thing due to fixing of marriage in their family, which was imminent; the accused persons got infuriated and abused him and on exhortation of Ashok Singh, his son Hemant Singh fired a shot on him in presence of Anurag Singh, son of the informant and some relatives. The informant fell down having received gunshot injury. Accused persons Hemant Singh and Ashok Singh escaped from the place by opening fire. The informant was rushed to district hospital Mau and from there he was referred to Singh Hospital Varanasi. The police investigated the case and filed charge-sheet against the accused Ashok Singh for charge under Sections 504, 506 IPC with finding that complicity of his son Hemant is not found in the offence during investigation.
6. It is noteworthy that another F.I.R. was lodged at the instance of present accused Ashok Singh on 18.4.2016 at 17:30 hours bearing Case Crime no. 253 of 2016 at police station concerned. It is counterblast of present case lodged at the instance of injured Ajay Singh. In said counter version, present accused Ashok Singh stated that Ajay Singh is his neighbour; his house lies beside the house of the informant. On 18.4.2016 there was Tilak ceremony of younger brother of Ajay Singh. The informant has permitted to use his Sahan as temporary pathway on request of Ajay Singh due to said ceremony in his house. Ajay Singh was doing some earth levelling work on said place. He asked Ajay Singh that after ceremony he would remove earth from the place, whereupon Anurag Singh son of Ajay Singh got infuriated to this and told him that earth thrown on the place would never be removed then informant asked him that no earth work could be carried out. Accused Anurag Singh got enraged to this and took out his pistol from his waist and opened fire on him which hit Ajay Singh near his ear due to co-incident. The informant run inside the house; Anurag opened second fire on the informant which hit the wall of house of informant. Accused hit Smt. Kiran Singh wife of informant by throwing a chair on her which caused injury to her. The said incident occurred at 1:30 pm. In injury report of Ajay Singh dated 18.4.2016, one firearm injury and lacerated wound was found by the doctor. Ajay Singh was admitted in Singh Medical Research Pvt. Ltd, Varanasi on 18.4.2016 and discharged on 21.4.2016. According to injury report, he suffered firearm injury on the face and one lacerated wound on right side of ear. F.I.R. lodged at the instance of present accused Ashok Singh against Anurag was antecedent in point of time to that of F.I.R. lodged at the instance of injured Ajay Singh against Ashok Singh and his son Hemant Singh.
7. In connection with FIR lodged in Case Crime no. 255 of 2016 and consequent charge-sheet filed thereon against the Ashok Singh under sections 504, 506 IPC, an application 7-B was moved by the informant Ajay Singh in S.T. No. 245 of 2017 (State vs. Ashok Singh) with prayer to aid Section 307 IPC in penal sections and also summon Hemant Singh to face trial for charge under sections 307, 323, 504, 506 IPC. However, said application was dismissed vide order dated 2.6.2018 by the trial court. Another Session trial is also pending against Anurag Singh for charge under sections 307, 323, 504 IPC, which is son of Ajay Singh informant and injured in present case.
8. After evidence of PW-1 Ajay Singh, informant in present case, an application under section 319 Cr.P.C. was moved marked as 23-B by the informant Ajay Singh with prayer to summon named accused Hemant Singh in exercise of power under section 319 Cr.P.C. to face trial together with accused Ashok Singh and issue process against him under section 307, 504, 506 IPC. Learned trial court after perusal of evidence on record held that there is sufficient ground to summon the accused Hemant Singh, who is named in the FIR and has been attributed role of firing a shot on injured Ajay Sing in FIR as well as in the statement of injured Ajay and allowed the application 23-B accordingly. Learned trial court summoned the accused Hemant son of Ashok Singh under section 307, 504, 506 IPC in exercise of power under section 319 Cr.P.C. The Criminal Revision no. 431 of 2019 has been filed by said Hemant Singh against the order dated 13.12.2018.
9. Learned counsel appearing for revisionist Hemant Singh submitted that Ashok Singh father of revisionist lodged FIR on the very date of incident dated 18.4.2016 against Anurag son of injured Ajay Singh, which was registered under section 307, 323, 504 IPC vide Crime no. 253 of 2016 with averment that it was Anurag Singh, who opened fire on Ashok Singh, father of Hemant and informant of said case with intention to kill him but co-incident fire hit Ajay Singh, father of named accused Anurag. Thereafter, Anurag assaulted wife of informant Ashok by throwing chair on her. The present F.I.R. lodged at the instance of injured Ajay is counterblast of said F.I.R. which is antecedent in time to the FIR lodged by the injured Ajay Singh in present case. The present FIR has been lodged by Ashok Singh only to save his son Hemant which is facing trial for charge under section 307, 504, 506, 352 IPC. The present F.I.R. was lodged at the instance of injured Ajay on next day of the incident.
10. The revisionist Hemant and his father Ashok were falsely implicated in this case at the instance of injured Ajay Singh even the IO did not find complicity of Hemant in the said offence and his name was deleted in the charge-sheet, even no offence under section 307 IPC is made out against the co-accused Ashok during investigation and he was only chargesheeted under sections 504, 506 IPC.
11. Learned trial court even rejected the application 7-B moved by the informant Ajay to summon named accused Hemant to face trial on commencement of trial vide order dated 2.6.2018. The revisionist Ashok filed an objection against the application under section 319 Cr.P.C. stating therein that entire factual and legal aspect describing the fact that accused shown in the FIR registered by the revisionist has tried to create a false story as a counterblast of the case registered at the instance of Ashok against Anurag son of injured. The trial court has summoned the revisionist Hemant without recording his prima facie satisfaction to summon him as envisaged in judgement of Hon'ble Apex court in Hardeep Singh vs. State of Punjab (2009) 16 SCC 785. He lastly submitted that the evidence appearing on record is not of nature to summon the revisionist to face trial in exercise of power under section 319 Cr.P.C.
12. Learned counsel for the revisionist also placed reliance on the judgement of Hon'ble Apex court in Sartaj Singh vs. State of Haryana and another in Criminal Appeal Nos. 298-299 of 2021 (2021) 5 SCC 337 in support of his submission.
13. Per contra, learned counsel for respondent no. 2 submitted that IO after carrying out investigation, submitted charge-sheet against the accused Ashok only for charge under section 504, 506 IPC and dropped main accused Hemant in the said charge-sheet. The revisionist is named in the FIR as main assailant. His complicity in the offence is established in the evidence of PW-1 Ajay injured during trial who has been examined as PW-1. There is no infirmity, irregularity or perversity in the impugned order passed by the court below and the revision deserves to be dismissed. Learned trial court was justified in exercise of power under section 319 Cr.P.C.
14. Hon'ble Supreme Court in its constitution Bench judgement in Hardeep Singh (supra) observed and held as under:-
12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.
13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?
14. The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of CrPC and the judgments that have been relied on for the said purpose. The controversy centres around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.
17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.
18. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scotfree by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.
19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.
22. In our opinion, Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018] .
47. Since after the filing of the chargesheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the chargesheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pretrial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session.
55. Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.
56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections 200, 201, 202, etc. CrPC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded.
78. It is, therefore, clear that the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation.
84. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.
92. Thus, in view of the above, we hold that power under Section 319 CrPC can be exercised at the stage of completion of examination-in- chief and the court does not need to wait till the said evidence is tested on cross examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.
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.
15. In Sartaj Singh vs. State of Haryana (supra), Hon'ble Apex Court summarise legal position in para-7 of judgement. In present case this fact admitted by both side complainant and accused that Ajay Singh, who is informant in present criminal case suffered firearm injury. The manner in which he sustained injuries is described by both side in their own respective F.I.R., which is treated as counter version of each other. Accused Hemant Singh who is present revisionist before this Court is named in the FIR as assailant however, his complicity was not found during investigation as it appears that I.O. placed reliance on counter version produced in F.I.R. registered as Case Crime no. 253 of 2016 under sections 307, 504, 323 IPC lodged at the instance of Ashok Kumar Singh, accused, who is already facing trial in present case against Anurag Singh by the injured Ajay Singh. Learned trial court placed reliance of PW-1 injured Ajay Singh recorded during trial which counts within a purview of "evidence" as envisaged by the Apex court in constitution Bench judgement of Hardeep Singh (Supra). He appears to have suffered firearm injury according to his medico legal examination report also.
16. Learned trial court has considered the evidence of PW-1 in the light of other material on record and recorded its satisfaction with regard to complicity of revisionist in the offence and issued process against him to face trial for charge under section 307, 504, 323 IPC as additional accused, therefore, it can be inferred in the light of facts and circumstances of the case and mainly on the basis of evidence on record that case has been made out to summon the revisionist to face trial for said charge together with co-accused, who is already facing trial in the case, 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.
17. I find no illegality, irregularity or perversity in the impugned judgement and order passed by trial court while exercising its power under section 319 Cr.P.C. to summon the revisionist. The Criminal Revision no. 431 of 2019 is devoid of merits and is dismissed accordingly.
18. So far as the Criminal Revision no. 3696 of 2022 is concerned, this criminal revision has been filed by the accused Ashok Singh feeling aggrieved by the order dated 30.7.2022 passed by Additional Session Judge, court no. 3, Ghazipur in S.T. No. 245 of 2017 whereby application 24-B moved under section 216 Cr.P.C. by the informant Ajay has been allowed and learned trial court has held that there is sufficient ground to aid charge under section 307 IPC in penal sections of the case and trial court has directed accused Ashok Singh to seek his bail for said aided charge under section 307 IPC and fixed a date for framing of charge under section 307 IPC in said order dated 3.7.2022. Learned trial court has also directed the newly added advocate to produce status report of criminal Revision no. 431 of 2019 filed by him against summoning order dated 13.12.2018 passed by the trial court under section 319 Cr.P.C.
19. In the impugned order dated 3.7.2022 learned trial court has described the facts of the case as appearing in the FIR and has reproduced the injury report of injured Ajay Singh dated 18.4.2016 of district hospital Mau, which shows that he suffered firearm injury on right side of face and lacerated wound 3x1 cm on right side of ear, which was treated in different hospital during period of 18.4.2016 to 23.4.2016. Learned trial court has concluded that on the basis of evidence of PW-1 injured, FIR version and injury report of injured, sufficient grounds are made out to frame charge under section 307 IPC against the accused Ashok Singh, who is already facing trial in the case and thus allowed application under section 24-B.
20. Learned counsel for the revisionist submitted that actual version of incident has been stated in the FIR lodged at the instance of revisionist vide Crime No. 253 of 2016; infact it was Anurag Singh son of the injured Ajay Singh, who fired a shot on the accused revisionist Ashok Singh with intention to kill him but co-incidently the shot hit to his father Ajay Singh. Anurag again shot fire on the revisionist but it hit the wall of the house and in this way accused got narrow escaped even then said Anurag attacked Smt. Kiran wife of revisionist with chair and also abused her. Anurag Singh was arrested on 19.4.2018, date of lodging of present FIR and at that time Ajay was admitted in the hospital. Investigating Officer has also filed charge-sheet against Anurag Singh in Case Crime no. 253 of 2016 for charge under section 307, 504, 323 IPC. Session trial of FIR lodged at the instance of revisionist against Anurag has proceeded as S.T. No. 244 of 2017 under section 307 IPC in the court concerned in which statement of revisionist, his wife and witness Surendra Narayan has already been recorded in which they supported FIR version of the case.
21. Prayer in application 7-B was already rejected by the trial court for framing of charge under section 307 IPC against the accused Ashok Singh and summoning his son Hemant Singh for charge under sections 307, 504, 323 IPC vide order dated 2.6.2018. The statement of PW-1 Ajay is contrary to the FIR version. Learned trial court has wrongly allowed the application 24-B for framing of charge under section 307 IPC in the case against the revisionist which is unjust, improper while exercising the jurisdiction of trial court.
22. Per contra, learned counsel for the respondent no. 2 submitted that charge-sheet can be amended in exercise of power under section 216 Cr.P.C. at any stage of trial at any time before judgement is pronounced in exercise of power under section 216 Cr.P.C. vested in the trial court. Learned trial court has directed for addition of charge under section 307 IPC in penal sections of the case on the basis of material and evidence on record. There is no illegality, infirmity or perversity in the impugned order passed by the trial court.
Section 216 Cr.P.C. is reproduced as under:
1. Any Court may alter or add to any charge at any time before judgment is pronounced.
2. Every such alteration or addition shall be read and explained to the accused.
3. If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
4. If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
5. If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
23. In present case, co-accused Hemant Singh has already been summoned by the trial court in exercise of power under section 319 Cr.P.C. to face trial for charge under section 307, 504, 506, 352 IPC vide order dated 13.12.2018 and a revision preferred by him against said order has been decided by this common order.
24. The FIR was lodged under sections 307, 504, 352, 506 IPC at the instance of injured Ajay with specific allegation that it was accused Ashok Singh who exhorted his son Hemant to open fire on the informant and co-accused Hemant opened fire on informant pursuant to exhortation of present revisionist. No finding with regard to cross case lodged at the instance of present revisionist against son of injured can be given at this stage as it is jurisdiction of trial court to decide penal liability of a person who is responsible for the alleged offence on the basis of evidence adduced during trial in both session trial.
25. Hon'ble Supreme Court in Dr. Nallapareddy Sridhar Reddy vs. State of Andhra Pradesh and others held as under:
"Section 216 Cr.P.C. gives considerable power to the trial court, that is even after the completion of evidence, arguments heard and the judgement reserved, it can alter and add to any charge, subject to the condition mentioned therein. The expressions "at any time" and before the "judgement is pronounced" would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that that its orders would not cause any prejudice to the accused. Needless to say, the court can exercise power of addition or modification of charges under section 216 Cr.P.C., only when there exists some material before the court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court."
26. Learned trial court has rightly held that prima facie case for addition of charge under section 307 IPC in the case with regard to accused Ashok Singh is made out on the basis of evidence on record and on this finding, learned trial court has proceeded to frame additional charge under section 307 IPC against the accused.
27. I find no illegality, infirmity or perversity in the impugned order passed by the trial court and the criminal revision is devoid of merits and is accordingly dismissed.
Order Date :- 22.12.2023 Dhirendra/