Allahabad High Court
Himalaya vs State Of U.P. And Another on 16 January, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Court No. - 88 Case :- CRIMINAL APPEAL No. - 7062 of 2022 Appellant :- Himalaya Respondent :- State of U.P. and Another Counsel for Appellant :- Vinay Prakash Shukla,Sanjay Kumar Mishra Counsel for Respondent :- G.A.,Sheshmani Vishwakarma Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the appellant, learned counsel for the complainant /respondent No. 2 and learned A.G.A. for the State.
2. The present criminal appeal has been preferred under section 14- A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) against order dated 16.07.2022, passed by the learned Additional Sessions Judge/Special Judge, (SC/ST Act), Court No.2, Bhadohi Gyanpur in Criminal Case No.81 of 2016 (State Vs. Subhash and others), under Sections 323, 504, 506, 325 IPC and 3(1)10 SC/ST Act, whereby the trial court has summoned the appellant under Section 319 Cr.P.C.
3. Learned counsel for the appellant has argued that the impugned order is against the facts and law and thus, liable to be set aside. In this matter a non-cognizable report was lodged by the respondent No.2 on 28.03.2015 against accused Subhash, Rakesh, Lavkush and Arun but the appellant was not named therein. In his statement recorded under Section 161 CrPC also, the respondent No.2 did not name the appellant. It was submitted that the respondent No.2 has moved an application under Section 155(2) CrPC for investigation of the incident of non-cognizable report, and in that application appellant was also named but during investigation neither the respondent No.2 nor the other injured person has named the appellant. During trial of co-accused persons, the appellant has been summoned under Section 319 CrPC, whereas, there is no credible evidence against him. It was further pointed out that during trial also, the injured Satish Kumar has not named the appellant and that only complainant/P.W.1 has named the appellant but no specific role was assigned to the appellant. The statement of complainant made against appellant is not consistent with his statement, recorded during investigation. Referring to the facts and evidence of the matter, it was submitted that absolutely no case for summoning of appellant under Section 319 CrPC is made out. The court below did not consider the facts and evidence in correct perspective and without discussing or considering the position of law, the impugned order has been passed in a mechanical manner. Referring to facts of the matter, it was submitted that impugned order is against facts and law and thus, liable to be set aside.
4. Learned A.G.A. and learned counsel for the complainant/respondent No. 2 have opposed the appeal and argued that in application under Section 155 (2) CrPC, the respondent No.2/complainant has clearly stated that appellant was also involved in the alleged incident. Similarly during trial, the complainant/P.W.1 Munshiram has stated that appellant was also involved in the incident. Referring to the statement of P.W.1 Munshiram, recorded before the trial court, it was submitted that a case for summoning of appellant under Section 319 CrPC is made out against appellant. It is further submitted that there is no illegality or perversity in the impugned order..
5. I have considered rival submissions and perused the record.
6. Before considering the merits of the contentions, it would be apt to refer to Section 319 Cr.P.C. which reads as under:-
"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) ???????..
(3) ???????..
(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."
7. By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused. In the case of Hardeep Singh V State of Punjab (2014) 3 SCC 92, the Hon'ble Apex Court has held as under:-
"110. We accordingly sum up our conclusions as follows:
Question Nos.1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND Q.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?
A. In Dharam Pal's case, 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 chargesheet.
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 Q.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?
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 Q.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?
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 Q.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 chargesheeted or who have been discharged?
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, in so far 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."
8. The issue regarding exercise of powers under Section 319 Cr.P.C. has also been considered by Hon'ble Apex Court in case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another, decided on 23rd July, 2019 [Criminal Appeal No. 1105 of 2019], wherein, it was observed that the standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. It is not 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 Cr.P.C. would be used by the court. As held by the Constitution Bench in case of Hardeep Singh (supra), the power under Section 319 Cr.P.C. is discretionary and 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.
9. Keeping the above referred legal position in view, in the instant case it may observed that the appellant was not named in the first information report (non-cognizable report), lodged by the respondent No. 2/ informant. Though, the appellant was named by the respondent No.2 in the application moved under Section 155(2) CrPC for investigation of the incident but again in his statement recorded under Section 161 CrPC, the respondent No.2 did not name the appellant. In fact during investigation, neither the respondent No.2 nor the other injured person has named the appellant. During trial also, one of the injured namely Satish Kumar has not named the appellant. Only informant /P.W.1 has named the appellant but no specific role was assigned to the appellant. Further, the statement of informant / PW 1 made during trial against appellant is not consistent with his statement, recorded during investigation. Considering the nature of evidence shown against the appellant and above stated facts and circumstances of the case, in the light of aforesaid position of law, no case for summoning of appellant under Section 319 Cr.P.C. is made out. As observed by the Hon'ble Apex Court, for invoking power under Section 319 Cr.P.C., there must be strong and cogent evidence. The power under Section 319 Cr.P.C. cannot be exercised in a casual and cavalier manner. It appears that the court below has not considered the facts and the evidence in correct perspective and committed error by summoning the appellant under section 319 CrPC.
10. In view of the aforesaid, this court is of considered view that no case for summoning of appellant under Section 319 Cr.P.C. is made out and therefore the impugned order, so far as it relates to the summoning of appellant, is liable to be set aside.
11. The impugned order dated 16.07.2022 passed by the Additional Sessions Judge/Special Judge, (SC/ST Act), Court No.2, Bhadohi at Gyanpur, regarding summoning of appellant Himalaya is set aside.
12. The criminal appeal is allowed.
Order Date :- 16.1.2023/Neeraj