Madhya Pradesh High Court
Lal Singh Arya vs Ranveer Jatav on 29 May, 2017
1
CRR.508 /2017
Lal Singh Arya Vs. Ranveer Jatav and Ors.
29. 05. 2017
Shri Surendra Singh, Senior Advocate with Shri Rajesh
Kumar Shukla and Shri Rajiv Sharma, counsel for the petitioner.
Shri Vishal Mishra, Additional Advocate General for the
respondent / State.
Shri Raju Sharma, Advocate for the respondent No.1. Shri Vivek Khedkar, counsel for the CBI / respondent No.3. IA No. 4288 / 2017, an application for urgent hearing during summer vacation is taken up, considered and allowed.
1. The revisional powers of this Court are invoked under Section 397 Cr.P.C. against the interlocutory order dated 19.05.2017 passed in Special Sessions Trial No. 111 /2009 which has the colour and character of final order (qua Sec.319 order) whereby three applications under Sections 91, 311 & 319 of the Cr.P.C. preferred by the victim are allowed in the following terms :-
(i) As regards application u/s 91 Cr.P.C - the prosecution was directed to produce the application dated 14.04.2009 submitted by the Arvind son of the deceased, statement of prosecution witnesses Arvind and Shirpal recorded u/s 161 Cr.P.C during investigation, the statement of Sheela Devi and Banwari Lal recorded by the Police as well as CBI.
(ii) As regards application u/s 311 Cr.P.C.- summoning of Arvind Kumar and Shripal Jatav as prosecution witnesses based upon their 161 statements recorded during investigation on 23.04.2009 which indicate that these witnesses are eyewitnesses.
(iii) As regards application u/s 319 Cr.P.C based on the deposition of PW-45 Suryabhan Singh Gurjar, PW-44 Ranveer Singh Jatav, PW-38 Smt. Sheela Jatav and PW-37 2 CRR.508 /2017 Banwari Lal Jatav, Statements u/s 161 of Dr. Bhagirath Prasad, Arvind Kumar and Shripal Singh, the Court directed making the petitioner as an accused and issued warrant of arrest against him for his appearance before the Court.
2. Shri Surendra Singh, learned senior counsel along with Shri Rajesh Shukla on behalf of the petitioner in support of the challenge to the impugned order raises the following grounds :-
(1) No opportunity of hearing was afforded to the petitioner prior to passing of the order u/s 319 Cr.P.C for which AIR 2015 SC 2951 (Jogendra Yadav and Ors. Vs. State of Bihar) is pressed into service.
(2) The trial Court was wrong to place reliance upon the statements u/s 161 Cr.P.C all witnesses who had not deposed before the trial Court for which AIR 2014 SC 1400 (Hardeep Singh Vs. State of Punjab and Ors.) is pressed into service.
(3) The case diary statement of witnesses Suryabhan Singh Gurjar u/s 161 Cr.P.C. was recorded after 10 months of the incident and therefore is unreliable especially for the purpose of invoking power u/s 319 which the decision of the Apex Court AIR 2016 SC 2381 ( Rambraksh @ Jalim Vs. State of Chhattisgarh, (para 7), is pressed into service. (4) The invocation of Section 319 Cr.P.C ought not to be made lightly as very strong and cogent evidence is necessary to add an accused for which the decision of the Apex Court in the case of AIR 2015 SC 2951 (Jogendra Yadav & Ors. Vs. State of M.P.) is again pressed again into service.
3. Shri Vishal Mishra, Additional Advocate General for the State contends that the provisions of Section 319 do not contemplate affording of any prior opportunity before being invoked. It is further 3 CRR.508 /2017 submitted that the impugned order of making the petitioner as an accused is lawfully passed as it is based on deposition of PWs-45, 44, 38, 37 and 161 Cr.P.C. statements of other witnesses.
4. Per Contra, learned counsel for the victim relying upon the decision of the Apex Court in the case of Anju Chaudhary Vs. State of U.P. & Ors.; (2013) 6 SCC 384 (para 34) submits that no prior opportunity is required to be afforded to a person before making him an accused u/s 319 Cr.P.C. More so it is submitted that testimony of PW-37, 38, 44 & 45 are sufficient to implicate the petitioner in the offences alleged. Thus, learned counsel for the victim sought dismissal of the petition.
5. The main thrust of the submissions of learned senior counsel for the petitioner is that the order passed u/s 319 Cr.P.C. making petitioner as an accused could not have been passed in the available evidence in the shape of testimony of PW-37, 38, 44 & 45 which are thoroughly insufficient, not cogent and with no probative value to sustain an order u/s 319 Cr.P.C. Thus the adjudication on merits is called for.
5.1 As regards merits it is seen from the record that the trial Court has relied upon the deposition of Suryabhan Singh Gurjar (PW-45), Ranveer Singh Jatav (PW-44) son of the deceased, Sheela Jatav (PW-37) widow of the deceased. A bare perusal of testimony of these witnesses before the Court reveals that all these witnesses in their testimony have implicated the petitioner in the murder of deceased Makhan Lal Jatav. There seems to be some embellishments and contradictions in the testimony of these four prosecution witnesses, who are relied upon for the purpose of deciding application u/s 319. But a bare reading of deposition of Suryabhan Singh Gurjar (PW-45) reflects that a graphic and lucid revelation has been made not only of the presence of the petitioner at the scene of crime but also of making exhortation to other 4 CRR.508 /2017 accused to use fire arm against the deceased immediately after the vehicle carrying the deceased was surrounded by the accused. The said testimony especially of PW-45 is certainly not sterling in quality due to contradictions and omissions when compared with earlier statement of the same witness under Section 161 but, however, contains sufficient prima facie evidence for trial court to be compelled to invoke Section 319.
5.2 The test of very strong and cogent evidence laid down in para 9 of the judgment of the Apex Court in the case of Jogendra Yadav (supra) is based on the law laid down by Constutition Bench decision in the case of Hardeep Singh (supra) that standard of proof employed for summoning a person as an accused u/s 319 Cr.P.C is higher than the standard of proof employed while framing charge against the accused. The Constitution Bench further observes that it is necessary for the Court to arrive at a satisfaction that the evidence adduced if unrebuttable can lead to conviction of a person sought to be added as an accused. Thus, it is held by the Apex Court that the standard of proof required for successfully invoking Sec. 319 is comparatively stricter than the standard of proof required for framing charge.
5.3 Testing the available material on the anvil of the law laid down by the Apex Court, this Court finds that despite certain embellishments and contradictions the testimony of Suryabhan Singh Gurjar (PW-45) is of such implicative nature that it reveals the presence of the petitioner at the scene of crime, making exhortation to kill the deceased which was closely followed by gun shot fire resulting in death of the deceased by injury in the head. This piece of evidence could not have been ignored by the trial Court. The said material may not be of sterling quality but is good enough to reveal that petitioner was not only present but directly involved in the alleged offence of murder of deceased Makhan Lal 5 CRR.508 /2017 Jatav, all be it with the aid of Section 120B / 34 of the IPC as the case may be.
5.4 In view of the above, this Court has no hesitation to hold that there was sufficient material in the shape of the deposition of the above said prosecution witnesses, especially Suryabhan Singh Gurjar (PW-45) for the trial court to successfully invoke the provision of Section 319 Cr.P.C. for making the petitioner as an accused.
6. The other ground of entitlement of affording prior opportunity before arraying the petitioner as an accused u/s 319 is now taken up for consideration.
6.1 The aforesaid question is no more res integra in view of the authoritative decision of the Apex Court in the case of Jogendra Yadav (supra) where in para 9 it is held thus:-
"9. ........ An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 Cr.P.C., is necessarily heard before being so added. Often he gets a further hearing if he challenges the summoning of the order before the High Court and further. ......."
From the above, it discernible that grant of opportunity to be heard to an accused before passing order u/s 319 is mandatory as per the verdict of the Apex Court. Though such an opportunity is not perceivable from the plain reading of language of Section 319 but the Apex Court has impliedly held that the principle of natural justice (audi alteram partem) is inherent in the provision. 6.2 Learned counsel for the victim placing reliance on another Coordinate Bench decision of the Apex Court in the case of Anju Chaudhary (supra) which has not been considered by the Apex Court in its subsequent decision of Jogendra Yadav, has contended by referring to para 34 that no prior opportunity of hearing before invoking Section 319 is necessary as no such 6 CRR.508 /2017 opportunity is contemplated by the said provision. The relevant paragraph 34 of the said decision is reproduced below for convenience and ready reference:-
"34. Even in the case where report under Section 173(2) of the Code is filed in the Court and investigation records the name of person in column (2), or even does not name he person as an accused at all, the court in exercise of its power vested under Section 319 can summon the person as an accused and even at the stage of hearing no hearing is contemplated."
True it is that the decision of the Apex Court in the case of Anju Chaudhary (supra) in para 34 mentions that no prior hearing is contemplated under Section 319 Cr.P.C but in the said case the Apex court was not dealing with the scope, extent and sweep of Section 319 but was concerned with the provision of Section 156(3) which is evident from the question framed by the Apex Court in the first paragraph of its judgment, which is reproduced below :-
"Leave granted. A cardinal question of public importance and one that is likely to arise more often than not in relation to the lodging of the first information report (FIR) with the aid of Section 156(3) of the Code of Criminal Procedure ( for short "the Code") or otherwise independently with the ambit of Section 154 of the Code is as to whether there can be more than one FIR in relation to the same incident or different incidents arising from the same occurrence."
6.3 Thus the dispute before the Apex Court in the case of Anju Chaudhary (supra) was distinct than the issue before the Apex Court in the case of Jogendra Yadav and Hardeep singh(supra) which directly dealt with provisions of Section 319 Cr.P.C. Consequently, the decision in the case of Anju Chaudhary (supra) is not an authority as regards Section 319 Cr.P.C. Accordingly, this Court following the decision of the Apex Court in Jogendra Yadav(supra) and more particularly Hardeep Singh has no hesitation to hold that the trial Court ought to have afforded 7 CRR.508 /2017 opportunity of being heard to the petitioner before invoking Section 319 Cr.P.C. Thus, to the above extent, the impugned order is vitiated in the eye of law.
7. The third ground raised herein is that material besides evidence adduced before the court during trial cannot be used for the purpose of invoking Section 319 for arraying the petitioner as an accused, finds support in the decision of Hardeep Singh (supra) paragraph 80 which answered one of the question framed by the Apex Court in the following manner :-
"80. 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 utilized only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319, Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial."
7.1. The Constitution Bench in the case of Hardeep Singh (supra) has clearly laid down that the evidence which can be utilized as raw material for invoking Section 319 Cr.P.C is the one adduced before the Court during trial and also material received after cognizance is taken, provided the latter is utilized only for corroborative purposes. Therefore, the trial Court was wrong in placing reliance on the 161 statements recorded during investigation of Dr. Bhagirath Prasad, Arvind Kumar and Shripal Singh for invoking section 319 Cr.P.C. against the petitioner.
8. On the basis of above discussion, it is evident that order impugned of the trial Court dated 19.05.2017 passed in Special Sessions Trial No. 111 / 2009 is vitiated only to the extent of non- affording of prior opportunity to the petitioner of being heard before invoking Section 319 Cr.P.C. and of placing reliance on the 161 statements of the aforesaid witnesses recorded during investigation.
8 CRR.508 /20179. This Court hastens to add that so far as material placed before this court in the shape of testimony of PW-45, 44, 38 and 37 is concerned appears to be sufficient to permit the trial Court to successfully invoke Section 319 against the petitioner. However, this finding is prima facie since this Court intends to remand the matter to the trial Court for passing a fresh order after affording opportunity of being heard to the petitioner before making him as an accused under Section 319 Cr.P.C.
10. Consequently, the present petition at the stage of admission is disposed of with the following directions :-
(i) The order impugned passed by the learned trial Court in Special Sessions Trial No. 111 / 2009 passed on 19.05.2017 is set aside to the extent it allows application under Section 319 Cr.P.C., with direction to the learned trial Judge to afford opportunity to the petitioner to be heard before deciding the application u/s 319 Cr.P.C. afresh in terms of the law laid down by the Apex Court in the case of Hardeep Singh and Jogender Yadav (supra) as expeditiously as possible.
(ii) Any findings recording herein shall not prejudice the learned trial Judge while complying with the direction aforesaid.
(iii) No cost.
(Sheel Nagu)
sarathe V.Judge