Allahabad High Court
Nek Ram vs State Of U.P. & Another on 11 November, 2020
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 32 Case :- U/S 482/378/407 No. - 2584 of 2020 Applicant :- Nek Ram Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Harish Chandra Counsel for Opposite Party :- Govt. Advocate Hon'ble Narendra Kumar Johari,J.
1. The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 19.09.2020, passed by the learned 1st Additional Sessions Judge, Hardoi in S.T. No. 548 of 2015 (State Vs. Rafi), Case Crime No.291 of 2015, under Sections 147, 148, 149, 302 IPC, P.S. Bilgram, District Hardoi, by which the learned trial court has allowed the application of the informant under Section 319 Cr.P.C. and summoned the applicant to face trial. Applicant has also prayed for staying the operation of the aforesaid order dated 19.09.2020.
2. It has been submitted by learned counsel for the applicant that the impugned order dated 19.09.2020 is illegal, arbitrary and against the settled principles of law.
3. The brief facts of the case are that a First Information Report was lodged by informant Mr. Yadav on 17.08.2015 alleging that his father has been murdered by five named accused persons including name of present applicant. The case was registered under Crime No.291 of 2015, under Sections 147, 148, 149, 302 IPC, P.S. Bilgram, District Hardoi.
4. It has been submitted by learned counsel for applicant that the applicant was living in Delhi since 2003 and doing private job, where he got the information that he has been falsely implicated in the aforesaid case. He moved an application to the Investigation Officer, with a copy to Senior Superintendent of Police, Hardoi through registered post that on the date of occurrence he was on duty in Delhi. On his prayer, the Investigating Officer visited Delhi and collected the evidence of his presence in Delhi on the date of occurrence. During investigation, the Investigating Officer has found that at the time of occurrence location of mobile phone of the applicant was in Delhi and recorded the evidence of witnesses. On the basis of aforesaid evidence, the applicant was exonerated from the charge-sheet. The Investigating Officer has also moved an application to recall the order of Non Bailable Warrant and proclamation order under Section 82 of Cr.P.C. issued against the applicant.
5. The impugned order has been passed by the learned trial court, relying the statement of witnesses PW 1 Mr. Yadav and statement of PW2 Netrapal. It is pertinent to mention here that the Court has relied only on examination-in-chief of witness PW 2. Learned court below has rejected the application of named accused Aditya Singh @ Ajay Singh believing the CCTV footage but allowed the application against the present applicant.
6. Learned A.G.A. has opposed the prayer and submitted that the order passed by the trial court is well discussed and based upon the settled principles of law.
7. Learned counsel for the applicant has submitted that the learned trial court has wrongly appreciated the evidence of witnesses PW 1 Mr. Yadav and PW 2 Netrapal. Even the learned Additional Sessions Judge did not consider the legal position that the witness PW 2 Netrapal has given his statement in examination-in-chief only and he has not been cross-examined, so the credibility of witness PW 2 is not established.
8. For the summoning of any person who appears to be guilty of offence, the provision has been enacted in Section 319 of Cr.P.C. which is reproduced 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) 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 afresh, and 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. The informant has moved the application under Section 319 Cr.P.C. to summon the applicant for trial as accused on the basis of evidence given by him before court and on the basis of evidence recorded by witness PW 2 in his examination-in-chief, at that time the aforesaid applicant was not arrayed as accused and there was no occasion to cross-examine to either witness PW 1 or witness PW 2. In other words, they cannot cross-examine witnesses P.W. 1 & PW 2, prior to put his appearance in court, therefore the examination-in-chief recorded by witness PW 2 cannot excluded from the wording of "evidence" the term used in Section 319 (1) of Cr.P.C.
10. The wording used in Section 319 of Cr.P.C. that "where, in the course of any inquiry or trial of offence, it appears from the evidence that any person not been the accused has committed any offence.................." shows the intention of law that there must be some evidence on record for summoning any person under the Section. In this context, Hon'ble Apex Court has held in Rajesh and Others Vs. State of Haryana [2019 (108) ACC 978], in Paragraphs 83, 84 and 85 as under:-
"83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. ........
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.
85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319, CrPC. The "evidence" is thus, limited to the evidence recorded during trial."
11. Such witnesses which the prosecution produce in support of its case is termed as "evidence" for the prosecution under Section 231 of Cr.P.C. The term "evidence" implied in Section 319 of the Code does not necessarily mean only such evidence which constitutes legal and admissible evidence at the trial. In other words, it can be said that "evidence" in Section 319 Cr.P.C. means "evidence" recorded during the course of inquiry or trial and not during the investigation of the case. It may not include the police statement recorded under Section 161 Cr.P.C. It may also not include the document obtain by the police and sent along with the final report or the charge-sheet, unless those documents have been proved at the inquiry or trial. As a matter of law, an accused can be summoned under Section 319 Cr.P.C., after examination of a single witness. The examination-in-chief of the witness is evidence within the scope of Section 319 Cr.P.C., the Court can summon an accused on the evidence of a witness who has not yet been cross-examined. In the case of Hardeep Singh and others Vs. State of Punjab and others 2014 (3) SCC 92, the Hon'ble Apex Court has held in paragraphs 84 and 85 that, "84. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness(s) prior to passing of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(s) is obliterating the role of persons already facing trial. More so, Section 299 Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein.
85. Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and 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."
12. In case accused is not charge-sheeted by the police, he can be summoned under Section 319 Cr.P.C. as an accused on the solitary statement of informant in his examination-in-chief to stand trial for the offence as discussed by Punjab & Haryana High Court in the case of Jai Prakash Vs. State of Haryana & others (Criminal Revision No.856 of 2015).
13. It has been held by the Hon'ble Apex Court in the case of Sugreev Kumar Vs. State of Punjab and Others [2019 AIR (SC) 2903], in paragraphs 12, 13 and 14 that-
"12. Thus, the provisions contained in Section 319 CrPC 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 cogent evidence is available. The prime 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 prime facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.
13. While applying the above-mentioned principles to the facts of the present case, we are of the view that the consideration of the application under Section 319 CrPC in the orders impugned had been as if the existence of a case beyond reasonable doubt was being examined against the proposed accused persons. In other words, the Trial Court and the High Court have proceeded as if an infallible case was required to be shown by the prosecution in order to proceed against the proposed accused persons. That had clearly been an erroneous approach towards the prayer for proceeding against a person with reference to the evidence available on record.
14. The appellant (PW-1) has made the statement assigning specific roles to the proposed accused persons. At the stage of consideration of the application under Section 319 CrPC, of course, the Trial Court was to look at something more than a prima facie case but could not have gone to the extent of enquiring as to whether the matter would ultimately result in conviction of the proposed accused persons."
14. In the light of legal matrix as discussed above, it can be inferred that statement given by prosecution witnesses in court and facts mentioned in the recorded examination-in-chief, are just and proper to consider and decide the application of informant moved under Section 319 of Cr.P.C.
15. Learned counsel for the applicant has further argued that at the time of offence, applicant was in Delhi and the location of his mobile phone No.8800296315 was found in Delhi and this fact was verified by the Investigating Officer by visiting Delhi. The Investigating Officer has taken the evidence of witnesses also regarding the presence of applicant in Delhi and on the basis of aforesaid evidence, the Investigating Officer found that the applicant was not involved in the offence, consequently he did not mention the name of applicant in the charge-sheet as an accused.
16. The plea of alibi is a matter of merit. It requires strict proof by cogent evidence. When the accused sets up the plea of alibi that he was on duty at another district/place on the date of occurrence, the burden of proof lies on the accused under Section 103 of Evidence Act to establish his plea. In order to establish the plea of alibi, the accused must lead evidence to show that he was so far off at the moment of the crime from the place of occurrence that he could not have committed the offence. The standard of proof required for establishing the plea of alibi is the same as for establishing a prosecution case.
17. In the case of Sattar Vs. State of Maharashtra, 2010 8 SCC 430, the Hon'ble Apex Court has held that 'alibi to be proved with such certainty as to completely exclude the possibility of presence of accused at the place of occurrence on certain time. Witness PW 1 Mr. Yadav has stated in his examination-in-chief that applicant Nek Ram along with other accused shot fire on his father Raghubir, although he has denied the fact that at the time of occurrence applicant was residing in Delhi and was on duty. Mere denial of such part of his cross-examination is not sufficient to proof and establish the plea of alibi. Accordingly, witness PW 2, in his examination-in-chief has named applicant to open fire upon the deceased Raghubir. There was no scope of cross-examination the witness by counsel for the applicant.
18. In the case of Jitendra Vs. State of Haryana (2012) 6 SCC 204, it has been held by Hon'ble Supreme Court that testimony of natural witness of occurrence, if found trustworthy, the plea of alibi becomes insignificant. Therefore, conclusion regarding truthfulness of alibi can be drawn only after the assessment of entire evidence of the case. Applicant has mentioned in paragraph 8 of application that applicant had signed in the attendance register on that very date also in his factory. The location of his mobile phone was found in Delhi. In that connection, it has to be proved by applicant the relevant facts as mentioned in application that at the time of occurrence he had carried his mobile phone with him and was located in CCTV footage of his place of employment and he has to prove his signature on the attendance register of his factory, in accordance with law. It is only possible if applicant will establish his plea of alibi by facing the trial along with co-accused persons. No inference can be drawn only on the basis of material collected by investigation officer.
19. It has been further argued by learned counsel for the applicant that along with applicant the other three persons named Aditya Singh @ Ajay Singh, Ajit Singh, Rajkumar and Rafi were also named in FIR and the Investigating Officer has found that at the time of occurrence Aditya Singh @ Ajay Singh was located at Kaisarbagh Crossing in CCTV footage, Rajkumar was involved in the case on the basis of prior enmity and location of mobile phone of Ajit Singh was found in Hardoi. The Investigating Officer has exonerated and removed their names in the charge-sheet. Learned court below has believed the absence of the evidence of CCTV footage regarding Aditya Singh @ Ajay Singh but allowed the application under Section 319 Cr.P.C. regarding the applicant which is discriminatory.
20. It reveals from the perusal of the impugned order that the fact of CCTV footage regarding Aditya Singh @ Ajay Singh was considered by this Court in Writ Petition No.8480 (MB) of 2015 and by the order of this Court, CCTV footage was collected and was scrutinized by Forensic Science Laboratory. A team of experts, was also constituted in the above process. After due verification the presence of Aditya Singh @ Ajay Singh got established at Kaisarbagh Crossing, therefore, the court rejected the application under Section 319 Cr.P.C. for said Aditya Singh @ Ajay Singh. The case of applicant cannot be placed at par with Aditya Singh @ Ajay Singh. The applicant has to establish his plea of alibi by cogent evidence.
21. When charge-sheet was filed, the trial court has found that all the persons named in the F.I.R., have not been mentioned as accused in police report/charge-sheet, it was incumbent upon the trial court concerned to issue notice to informant by implication of law. It has been held by Hon'ble Apex Court in the case of Rajesh and others Vs. State of Haryana (Supra), in paragraph 6.1 as under :-
" 6.1 At the outset, it is required to be noted that, in the present case, what is under challenge is the impugned order passed by the High Court dismissing the revision application and confirming the order passed by the learned Trial Court summoning the accused in exercise of powers under Section 319 of the CrPC and to face the trial for the offences under Sections 148, 149, 323, 324, 325, 302, 307 and 506 of the IPC. It is required to be noted that, in the present case, the original complainant first informant specifically named ten persons as accused, including the appellants herein. However, thereafter after the investigation, the investigating officer filed the charge-sheet/challan against four accused persons only and no challan/charge-sheet was filed against the appellants herein. Nothing is on record whether at that time any specific closure report was submitted by the investigating officer or not. Nothing is on record whether at that stage an opportunity was given to the complainant/original informant to submit any protest application or not. Assuming that nonfiling of the charge- sheet/challan against the remaining accused named in the FIR can be said to be a closure report, in that case also, as per the settled proposition of law and more particularly, the decision of this Court in the case of Bhagwant Singh (supra), before accepting the closure report, the Magistrate is bound to issue notice to the complainant/original informant and the complainant/original informant is required to be given an opportunity to submit the protest application and, thereafter, after giving an opportunity to the complainant/original informant, the Magistrate may either accept the closure report or may not accept the closure report and direct to proceed further against those persons for whom the closure report was submitted. In the present case, nothing is on record that such a procedure was followed by the learned Magistrate. That, thereafter the trial proceeded against the four accused persons against whom the charge-sheet/challan was filed. During the trial, the depositions of P.W.1 and P.W.2 were recorded. Both of them were even cross-examined. In the deposition, P.W.1 and P.W.2 specifically stated the overacts by the appellants herein and the role played by them and categorically stated that at the time of the incident/commission of the offence, the appellants herein were also present and they participated in the commission of the offence. That, thereafter, on the application submitted by the original complainant submitted under Section 319 of the CrPC, the learned Magistrate found a prima facie case against the appellants herein and summoned the appellants herein to face the trial along with other co-accused. The said order has been confirmed by the High Court. Therefore, the short question posed for the consideration of this Court is whether, in the facts and circumstances of the case, the Trial Court was justified in summoning the appellants herein to face the trial in exercise of powers under Section 319 of the CrPC?"
22. After receiving the charge-sheet/police report, if the Court concerned could not issue notice to informant for protest, and informant moved the application under Section 319 Cr.P.C. against the persons whose names were exonerated from the aforesaid police report/charge-sheet, then it cannot be said that any illegality has been committed by the trial court by summoning the applicant to face the trial. The subordinate court has well discussed the legal position in his order dated 19.09.2020 and no illegality is found in the impugned order.
23. In view of above discussion, considering the scope of provision of Section 482 of the Code, it is concluded that the present application under Section 482 Cr.P.C. lacks merits and is liable to be rejected. The discussion as made above will not affect the merit of the case in trial.
24. Accordingly, the application under Section 482 Cr.P.C. is hereby rejected at this stage.
Order Date :- 11.11.2020 ML/-