Allahabad High Court
Ram Kishore vs State Of U.P. And 2 Others on 7 November, 2019
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 93 Court No. - 93 Case :- CRIMINAL REVISION No. - 3318 of 2019 Revisionist :- Ram Kishore Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Shri Krishna Mishra Counsel for Opposite Party :- G.A. Hon'ble Ajit Singh,J.
Heard learned counsel for the revisionist and the learned A.G.A.
Present revision under Sections 397/401 Cr.P.C. has been filed with prayer to set aside the order dated 27.05.2019 passed by Additional Sessions Judge, Court No.3, Kaushambi passed in Session Trial No.205 of 2016 (State Vs. Anup Kumar) arising out of Case Crime No.139 of 2016, under Sections 302, 201, 404 I.P.C., Police Station Mahewaghat, District Kaushambi, whereby application 14 Kha under Section 319 Cr.P.C. filed by the revisionist for summoning the opposite party nos.2 and 3 was rejected. Aggrieved by the said order, the instant criminal revision has been preferred.
The brief facts leading to this revision are that the first information report was lodged by the complainant/revisionist, Ram Kishor on 13.05.2016 with the allegation that his son, namely, Sandeep Kumar @ Sanjeev, who was residing with Anup Kumar and was also working with him in Rajapur. It was further alleged that on 25.04.2016 Anoop Kumar with the intention to cause death came to the village with Sandeep and Sandeep after taking Rs.15,000/- in cash and pass book from the house and after withdrawing Rs.25,000/- from the bank returned to the house and informed that he is going with Anoop Kumar as he is having an important work. It was also alleged that Anoop Kumar hatched a conspiracy involving his father, Shivcharan Lal and brother, Aniruddh along with two hired miscreants and murdered the son of the complainant. The complainant got information from the newspaper on 26.04.2016 about the death of his son, Sandeep @ Sanjeev and the deceased was recognized by his cloths. The police after investigation submitted the charge-sheet against Anoop Kumar only. The trial of this case was proceeded. The prosecution has examined PW-1, PW-2 and PW-3 and the witnesses were cross-examined by the counsel for the accused Anoop Kumar. After the statements of PW-1, PW-2 and PW-3 an application under Section 319 Cr.P.C. was given and after hearing the application, the trial court rejected the application filed under Section 319 Cr.P.C.
Learned counsel for the revisionist submitted that the trial court has not properly considered the application and it has been decided in a cursory manner. He further submitted that the entire facts and circumstances of the case has not been properly discussed by the trial court.
Learned A.G.A. has vehemently opposed the argument of learned counsel for the revisionist and has submitted that the incident is alleged to have taken place on 25.04.2016 and the first information report of the incident was lodged on 13.05.2016. He further submitted that there is no reliable and cogent evidence against the other accused person, whose names were mentioned in the application, filed under Section 319 Cr.P.C., and the application has rightly been dismissed by the trial court and no interference is required in the impugned order. He has further submitted that the powers given under Section 319 Cr,.P.C. are discretionary powers of the Court are to be exercised sparingly and the trial court after having thoroughly examined the record, found no substance in the application so moved. He further submitted that the impugned order has been passed after due consideration of the material available on record. He submitted that the prosecution has examined three witnesses and the PW-1, Ram Kishore, who has lodged the first information report of this incident named the opposite party nos.2 and 3 in the first information report is not an eye-witness of the incident and the PW-2 Shivnathiya, who is the wife of the complainant and the mother of the deceased, Sandeep, is also not an eye-witness and she has only seen Sandeep going with the accused, Anoop Kumar and she had not seen the opposite party nos.2 and 3 going with her son, the deceased Sandeep. The prosecution has also examined PW-3, Durga Prasad and he said in his statement during trial that on 25.04.2016 he had seen the deceased, Sandeep and Anoop Kumar going on one motor-cycle. He further deposed that he had also seen Aniruddh and Shivcharan going on another motor-cycle along with two unknown persons. He further deposed that when he asked from these people they told him that they are in a hurry and are going to Rajapur.
The provisions of Section 319 Cr.P.C. have been enacted in the Cr.P.C. with a view to achieve the objective that the real culprits should not get away unpunished. By virtue of these provisions the Court is empowered to proceed against any persons not shown as an accused, if it appears from evidence that such person has committed any offence for which, he could be tried together with the other accused persons then he may be summoned to face the trial.
Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab, reported in (2014) 3 SCC, 92 has explained the purpose behind this provision, inter-alia in the following :
"12. Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure.
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 Cr.P.C.
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."
As regards the decree of satisfaction required for invoking the powers under Section 319 Cr.P.C., the Constitution Bench in the case of Hardeep Singh Vs. State of Punjab (Supra) has laid down the principles as follows :
"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, 2013 (11) SCALE 23, 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.
105. 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.
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."
After careful consideration of the provisions contained in Section 319 Cr.P.C. it emerges that 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 strong cogent evidence is available indicating that the proposed accused/summoned accused may be guilt of committing offence. The prima facie opinion which is to be formed for exercise of this power requires stronger evidence than mere 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 earlier held by the Apex Court.
After considering all the material available on record filed with this revision and after considering the evidence available on record and the impugned order this Court finds that the impugned order does not suffer from any illegality, improbability or infirmity requiring any interference by this Court. The learned Additional Sessions Judge after noticing that there was no admissible evidence on record indicating the complicity of the opposite party nos.2 and 3 in the commission of the offence. The learned trial court has rightly rejected the application moved by the complainant/revisionist. This Court after careful consideration does not find any illegality, improbability or infirmity in the impugned order.
The revision lacks merit and is accordingly, dismissed.
Order Date :- 7.11.2019 R./