Allahabad High Court
Suresh Chandra Tripathi vs State Of U.P. And 2 Others on 22 December, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED ON 08.12.2022 DELIVERED ON 22.12.2022 Court No. - 84 Case :- APPLICATION U/S 482 No. - 20856 of 2021 Applicant :- Suresh Chandra Tripathi Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Tiwari Abhishek Rajesh Counsel for Opposite Party :- G.A.,Dhirendra Kumar Dwivedi,Janmejay Kumar Pandey,Vinod Kumar Ojha Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Tiwari Abhishek Rajesh, learned counsel for the applicant, learned AGA for the State and Sri Dhirendra Kumar Dwivedi, learned counsel for opposite party no. 2.
2. Applicant (complainant) is before this Court being aggrieved by impugned order dated 08.09.2021 whereby an application filed under Section 319 Cr.P.C. to summon opposite party nos. 2 and 3 to face trial in Sessions Trial No. 897 of 2017 (State of U.P. vs. Vinod and others) arising out Case Crime No. 541 of 2016 under Sections 307, 504, 325 IPC, Police Station Ghoorpur, District Allahabad has been rejected.
3. Learned counsel for the applicant has submitted that an FIR was lodged on 23.12.2016 against four accused including opposite party nos. 2 and 3 for an offence under Sections 307, 504 IPC. Investigation was conducted, however, charge-sheet was filed only against two named accused persons and opposite party nos. 2 and 3 were exonerated.
4. Learned counsel for the applicant has further submitted that during trial informant and injured eye witness (PW-1 and 2 respectively) recorded their evidence wherein opposite party nos. 2 and 3 were attributed specific role of exhortation and in these circumstances an application under section 319 Cr.P.C. was filed to summon these persons. He also submitted that a very vague ground was mentioned by learned counsel to reject the application that "Hence, in the light of the above observations it is clear that the informant and the injured whose statement has been recorded in examination-in-chief and cross examination has neither specifically stated about the role of the proposed accused to have fired at the victim directly nor said to have fired at somewhere else at the place of occurrence so far as the role of exhortation is concerned the informant and the injured i.e. PW1 and PW2 statement fails to corroborate such act of exhortation or any such act in the affidavit for their arrest. It goes without saying after the perusal of the oral evidence of PW1 and PW2 that the opposite party Chandra Mani and Suresh Mani has no such role in the commission of the offence. There are no such sufficient materials to summon the opposite party in the present application. Hence, the application is liable to be rejected."
5. Learned counsel has placed reliance on judgements of Hardeep Singh vs. State of Punjab and others, (2014) SCC 92, Manjeet Singh vs. State of Haryana and others, 2021 AIR (SC) 4274 and Sukhpal Singh Khaira vs. State of Punjab, 2022 SCC OnLine SC 1679. He has heavily placed reliance on Manjeet Singh (supra). Para 13 of the said judgement is mentioned hereinafter:
"13. The ratio of the decisions on the scope and ambit of the powers of the Court under Section 319 CrPC can be summarized as under:
(i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the legislature under the Cr.P.C. indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law;
(iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished;
(v) 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;
(vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it;
(vii) 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;
(viii) Section 319 Cr.P.C. 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;
(ix) the power under Section 319 CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 CrPC, committal, etc. which is only a pre- trial stage intended to put the process into motion;
(x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence;
(xi) 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;
(xii) 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;
(xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised;
(xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross-examination;
(xvi) even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses); (xvii) while exercising the powers under Section 319 CrPC CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial."
6. Learned AGA and Sri Dhirendra Kumar Dwivedi, learned counsel for opposite party nos. 2 & 3 have supported the impugned order that during investigation no specific allegation was made against opposite party nos. 2 and 3 and trial court has rightly exercised its discretion. It was not a case to summon them under section 319 Cr.P.C.
7. Heard learned counsel for the parties and perused the record.
8. Before adverting to rival submissions, it would be apposite to refer few paragraphs from a recent judgement passed by the Supreme Court in Sartaj Singh vs. State of Haryana and another, (2021) 5 SCC 337.
"13.2 Considering the law laid down by this Court in Hardeep Singh (supra) and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till the cross-examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross examination; and (ii) 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 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.
13.3. In S. Mohammed Ispahani v. Yogendra Chandak (2017) 16 SCC 226, this Court has observed and held as under: (SCC p. 243) "35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the chargesheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."
13.4. In the case of Rajesh v. State of Haryana (2019) 6 SCC 368, after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused."
9. Applying the law as discussed above, while considering an application under section 319 Cr.P.C. the trial court has to consider the evidence which is limited to the evidence recorded during trial. It is to be exercised sparingly and only in those cases where the circumstances so warrant and it has to be exercised only where strong and cogent evidence appeared against a person, during evidence led before the Court and such powers should not be exercised in a causal and cavalier manner. The nature of the evidence must be of strong evidence and not mere probability of complexity of the proposed accused persons, but there will be no scope for the court to act under Section 319 Cr.P.C. to form opinion as the guilt of the accused.
10. In order to consider the rival submissions, I have carefully perused the evidence of PW-1 and PW-2 recorded during trial, placed on record.
11. PW-1 Suresh Chandra has specifically named opposite party nos. 1 and 2 along with two charge-sheeted accused persons that there was prior enmity. All four accused persons confront PW-1 and PW-2 when they were going on the way. There are specific allegations against opposite party nos. 2 and 3 of exhortation. Relevant portion of evidence of PW-1 is mentioned hereinafter:
"छीतूपुर स्कूल के लगभग डेढ़ सौ मीटर आगे करछना के पास भाई बढ़ा था तभी चन्द्रमणि, सुरेन्द्र मणि पाण्डेय व विनोद उर्फ राजू पाण्डेय व प्रदीप पाण्डेय एक राय होकर मेरे भाई से रास्ते के विवाद को लेकर देखकर गाली गलौज करने लगे। चन्द्रमणि व सुरेन्द्र मणि के ललकारने पर कि मारों सालों को आज जान न पाये। विनोद उर्फ राजू पाण्डेय व प्रदीप पाण्डेय ने जान से मारने की नियत से मेरे भाई दिनेश के ऊपर फायर किये। मैं वही 20-25 कदम पर रुक गया तथा शोर मचाया तो राहगीरों के इकट्ठा होने पर मेरे भाई को मृतक समझकर घटनास्थल से मुल्जिमान भाग गये।"
(emphasis supplied)
12. I have also carefully perused the evidence of PW-2 which completely corroborated the statement of PW-1. Relevant part of evidence is reproduced as under:
"चन्द्रमणि और सुरेन्द्र मणि ने ललकारा कि मारों साले को आज जिन्दा न बच पाये। इस पर प्रदीप पाण्डेय ने पहला फायर किया तो बायें हाथ के अंगूठे में गोली लगी सुरेश चन्द्र त्रिपाठी शोर मचाये पर कोई बचाने नहीं आया। दूसरा फायर विनोद उर्फ राजू पाण्डेय ने मेरे ऊपर किया। जो मेरे सिर के पिछले हिस्से पर लगीं फिर तीसरा फायर विनोद उर्फ राजू पाण्डेय ने किया वह भी मेरे सिर के पिछले हिस्से में लगी। जिससे मैं जमीन पर गिर गया।"
(emphasis supplied)
13. There is no doubt that above referred part of evidence of PW-1 and PW-2, have specifically attributed role of exhortation to opposite party nos. 2 and 3, therefore reason given by learned Trial Court while rejecting the application under Section 319 Cr.P.C. that PW-1 and PW-2 have not stated any allegation against opposite party nos. 1 and 2 during investigation ignoring the evidence led before him would be erroneous as held in Manjeet Singh (supra).
14. The scope of Section 319 Cr.P.C. is not allowed the real perpetrators of an offence to go scot-free. In present case as discussed above evidence of PW-1 and PW-2 before the Trial Court is consistent regarding allegation of exhortation against opposite party nos. 2 and 3. Therefore, the Trial Court has committed error not to exercise his power under section 319 Cr.P.C. to summon them. The evidence as mentioned above is sufficient for the purpose to summon opposite party nos. 2 and 3 to face trial.
15. In these circumstances, this application u/s 482 Cr.P.C. is allowed and the impugned order dated 08.09.2021 passed by learned Additional Session Judge (F.T.C.), Court No. 1, Allahabad is set aside and the opposite party nos. 2 and 3 are directed to face trial. The Trial Court shall proceed with trial in accordance with guidelines mentioned in Sukhpal Singh Khaira (supra) and for reference same are mentioned hereinafter:
"33. xxxxxxx xxxxxxxxxx xxxxxxxxxx III What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?"
(i) If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.
(ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
(iii) If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
(iv) If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.
(v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
(vi) If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
(viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of Cr.P.C. can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of Cr.P.C. , the appropriate course for the court is to set it down for re-hearing.
(x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.
(xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."
16. Accordingly, the application u/s 482 Cr.P.C. is allowed Order Date :- 22.12.2022 Puspendra