Allahabad High Court
Mool Chandra And 2 Others vs State Of U.P. And Another on 25 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 Neutral Citation No. - 2023:AHC:174909 Judgment reserved on 26.7.2023 Judgment delivered on 25.8.2023 Court No. - 50 Case :- CRIMINAL REVISION No. - 2576 of 2023 Revisionist :- Mool Chandra And 2 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ashok Kumar Dwivedi,Bhagwan Dutt Pandey Counsel for Opposite Party :- G.A.,Braham Singh,Sushil Kumar Tewari Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Bhagwan Dutt Pandey learned counsel for the revisionists, learned counsel for the private respondent and learned A.G.A. for the State.
2. Instant criminal revision has been preferred against order dated 28.3.2023 passed by learned Additional District & Sessions Judge, Court No. 3, Moradabad, in S.T. No. 371 of 2021, (State Vs. Rahul Gupta), whereby the application 25-B moved under Section 319 Cr.P.C. by the informant (respondent no. 2 in present revision) has been allowed and the revisionists have been summoned to face trial as an additional accused in said case together with accused Rahul Gupta, already facing trial.
3. Factual matrix of the case which unfold from the material on record are that the informant Sudhanshu Kumar lodged an F.I.R. on the basis of written report with P.S. Civil Lines, Moradabad on 12.12.2020 stating that his younger sister Neha was married with accused Rahul on 25.2.2015. The informant and his family gave sufficient cash and valuables to husband of his sister and his family members up to their financial capacity but they were not satisfied. They used to tease his sister for lesser dowry and also harassed and tortured her. Rahul Gupta, husband of his sister, was residing in departmental house and on instigation of his family members, he used to subject her to torture. His sister was badly beaten and injured on 3.12.2019 in pre-planned manner and a report in that regard was lodged by the informant vide Crime No. 3 of 2020, under Sections 498-A, 308 IPC against named accused persons in present F.I.R. In that previous case, accused persons who include the husband, parents-in-law and brother-in-law of victim Neha, got the matter reconciled with assurance that they will not ill treat so with the victim in future. Their behaviour with the victim remained proper for sometime but on 9.12.2020 at around 8:39 hours, informant came to know that his sister was ill. He went to meet her husband at his quarter in PAC campus. On reaching there, he was apprised of the fact that her dead body was transported by PAC van to District hospital. Informant rushed to district hospital and found dead body of his sister Neha. Accused persons had killed his sister in planned and concerted manner in consulted manner. Two children of his sister remained with the informant. After performing last rites of his sister, he visited the P.S. to lodge a report. Police investigated the case and on the basis of material collected during investigation, concluded that accused Rahul was residing with his wife Neha at his official quarter allotted in 9th Battalion PAC campus, Moradabad. He was addicted to intoxicating substance and used to engage in mar-peet with his wife and for that reason her brother lodged an F.I.R. against Rahul Gupta and his family members with regard to dowry harassment. A compromise was reached between the parties in that case. Even after that Rahul did not mend his ways and being perturbed and fed up with his habits and addiction, victim Neha committed suicide by hanging herself. On the basis of documentary evidence CDR, newspaper, clippings, gazette information, visitor register kept at the gate of 9th Battalion PAC, no concrete evidence was found against revisionists Moolchand, his wife Neelam and some Abhishek in regard to their complicity in present offence. There is no evidence that they had ever subjected the deceased to mental, physical or economical cruelty or oppression. Name of Moolchand, Neelam and Abhishek was found wrong on investigation and their names are separated from that case and the charge sheet filed against Rahul is countenanced. The chargesheeted accused Rahul, husband of the deceased, has been subjected to trial by the court below and charge under Section 498-A, 304B and Section ¾ D.P.C. made out. Informant Shudhanshu was examined as PW-1 during trial and after his examination-in-chief, application under Section 319 Cr.P.C. was moved by the informant for summoning the present revisionists who are named accused in F.I.R. under Section 319 Cr.P.C. to face trial in said case. The first application under Section 319 Cr.P.C. was dismissed vide order dated 29.3.2022 by the trial court.
4. Feeling aggrieved by that order, informant filed a Criminal Revision No. 2258 of 2022 (Sudhanshu Bhatnagar Vs. State of U.P. and three others) which was dismissed as not pressed vide order dated 19.7.2022 of this Court. After dismissal of criminal revision, cross-examination of PW-1 Sudhanshu Bhatnagar, and statements of PW-2 Prabhat Kumar and PW-3 Krishna Kumar, have been recorded by the trial court. After recording evidence of these three witnesses of fact, another application under Section 319 Cr.P.C. was filed by the informant on 22.8.2022 against which an objection was filed by the accused Rahul, who is facing trial in the case. Learned court below after hearing submissions of learned counsel for the parties, decided the application under Section 319 Cr.P.C. by impugned order dated 28.3.2023 whereby court below has summoned the present revisionists to face trial under Section 319 Cr.P.C., together with accused Rahul Gupta.
5. Revisionists, feeling aggrieved by the impugned order, who have been summoned as additional accused, filed present revision before this Court under Section 397/401Cr.P.C.
6. Learned counsel for the revisionists submitted that this is admitted fact that first application under Section 319 Cr.P.C. moved by the respondent no. 2 has been dismissed by learned trial court, however, second application under Section 319 Cr.P.C. filed by the informant/respondent no. 2 which is based on same facts, has been allowed by learned trial court by impugned order. Revision filed by the respondent no. 2 before this Court against first order passed by court below on application under Section 319 Cr.P.C. has been dismissed as not pressed and therefore the order dated 29.3.2022 passed by learned trial court has attained finality, therefore, allowing same application with same prayer and fact situation is not sustainable under law.
7. He next submitted that from perusal of statements of prosecution witnesses, it is found that their sworn testimony before the court are not in consistency with what they had stated during investigation in their statements under Section 161 Cr.P.C.. There is no specific allegation against the revisionists with regard to demand of dowry and practising cruelty against the deceased. Learned trial court exercised its jurisdiction wrongly while summoning the revisionists to face trial. Investigating officer has collected sufficient material during investigation which suggest that the revisionists who are father, mother and brother of the accused Rahul Gupta, had no concern with Rahul Gupta and his deceased wife as they were already residing separately from them for long time. Revisionist are living separately from accused Rahul and his deceased wife Neha, soon after their love marriage. Both of them had never visited house of the revisionists nor the revisionists ever visited the quarter allotted to Rahul in PAC campus where he was residing with his wife Neha. Revisionists never demanded any dowry or committed any harassment or torture to the deceased but they were named accused in a false and fabricated case lodged at the instance of brother of the deceased.
8. Learned trial court has summoned the revisionists as an accused even in absence of cogent evidence against the revisionists and in a casual and cavalier manner by impugned order dated 28.3.2023. The satisfaction recorded by court below while summoning the accused persons under Section 319 Cr.P.C. is not up to standard as laid down by Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab (2014) (3) Supreme Court Cases Page 92. This is a case of improper exercise of jurisdiction vested in law by the court below. Impugned order is not preceded by logical reasoning and proper appreciation of evidence appearing on the record, therefore, same is liable to be set aside.
9. Per contra, learned A.G.A. as well as learned counsel appearing for the respondent no. 2 opposed the prayer and submitted that there is no infirmity, illegality or perversity in the impugned order passed by learned court below. Impugned order is perfectly legal and based on evidence of three witnesses of fact whose evidence have been recorded during trial. The evidence collected during investigation does not come within purview of "evidence" envisaged under Section 319 Cr.P.C. as held by Hon'ble Apex Court in Hardeep Singh's case (supra). He next submitted that prior to lodging of present F.I.R. with regard to unnatural death of victim Neha, within seven years of her marriage on her matrimonial home, an F.I.R. was lodged by present informant vide Crime No. 3 of 2020, under Section 498-A, 308 IPC and Section ¾ of D.P. Act against present revisionists and Rahul Gupta who is facing trial in present case. Though case was compromised and resultantly closed after assurance of accused persons to behave with the victim Neha properly and mend their ways but even after giving the assurance in previous case, they continued in their nefarious design to harass the victim and ultimately she was done to death at the place of her husband lying in in PAC campus. Accused Rahul and present revisionists conspire and killed the deceased. Impugned order is based on evidence on record and warrants no interference in present criminal revision.
10. From perusal of record, admitted position is found that marriage of the deceased Neha and accused Rahul Gupta was solemnized on 25.2.2015. Both sides are resident of District Moradabad. Marriage appears to be inter caste marriage. This is also admitted position that the deceased and accused Rahul were residing separately in PAC quarter allotted to Rahul. Present revisionists were residing separately and their native place situated at Samrat Ashok Nagar, P.S. Majhola, Moradabad.
11. So far as question of maintainability of second application under Section 319 Cr.P.C. after dismissal of first application and dismissal of revision preferred against said dismissal order on ground that said revision was not pressed by the revisionist, is concerned, this fact is significant that first application under Section 319 Cr.P.C. was filed by the respondent no. 2 after examination-in-chief of PW-1 and the same was maintainable in the light of observations of Hon'ble Apex Court in Hardeep Singh's (supra) case, wherein it is held that court can exercise its jurisdiction under Section 319 Cr.P.C. after examination-in-chief of the witnesses and court does not need to wait till the said evidence is tested in cross examination. Second application was filed after dismissal of first application under Section 319 Cr.P.C. by the informant after recording evidence of three witnesses of fact, thus the successive application under Section 319 Cr.P.C. on subsequent facts and evidence are not barred under law and even after dismissal of first application under Section 319 Cr.P.C., second application is maintainable, of course, on appearance of sufficient cause.
12. Punjab and Haryana High Court in Ashok Kumar Vs. State of Haryana, vide order dated 17.2.2008 observed that even after quashing of an order passed under Section 319 Cr.P.C. by this Court, same shall not debar the prosecution from filing of application under Section 319 of the Code at any subsequent stage of the proceedings in case any further material comes on record justifying the summoning of the additional accused.
13. Hon'ble Apex Court in a recent judgment in the case of Juhru v. Karim, (2023) SCC OnLine SC 171 delivered on 21.2.2023, considered the judgment of its previous Constitution Bench judgment on Section 319 Cr.P.C. and placed reliance on Hardeep Singh's (supra) case as well as Sukhpal Singh Khaira vs. State of Punjab, (2023) 1 SCC 289, wherein Apex Court reversed the guidelines to be followed by competent court while exercising powers under Section 319 Cr.P.C. laying for summoning additional accused if the evidence points at any person other than the accused being tried, excluded in charge sheet or trial. Court concluded that power of summoning under Section 319 Cr.P.C. should not be exercised routinely and the existence of more than a prima facie case is sine qua non for summoning additional accused.
14. In Juhru's case (supra) Hon'ble Apex Court set aside the order passed by learned trial court and affirmed by High Court with regard to summoning of sister-in-law and brother-in-law of the deceased under Section 319 Cr.P.C. due to lack of credible evidence for connecting them with the unnatural death of the deceased on a ground that there was no cogent evidence of these persons, residing in the same house or meddling in the marital life of the deceased. Court found it unjust to involve the two of them in facing trial as the additional accused, however, process issued against parents-in-law of the deceased under Section 319 Cr.P.C. was affirmed by Apex Court as it was found that these two accused were living under the same roof together with the deceased and her husband who was facing trial for unnatural death of the deceased.
15. Reliance has been placed on some papers filed as annexure no. 1 to the affidavit filed in support of present revision which reveal that revisionist Moolchand Gupta, who is father of the deceased, filed an application on 19.9.2015 which is addressed to D.M., Moradabad, wherein he has stated that his son Rahul serves in PAC. He was married with Neha Bhatnagar on 25.2.2015. Due to non carrying & neglecting attitude of his elder son Rahul @ Sonu towards him, he and his wife Neelam have got separated from him and his wife and they have given three rooms in upper floor of the house as a temporary measure till he makes separate arrangement for his residence. He has also filed a photocpy of affidavit addressed to District Magistrate/Editor, Amaj Ujala to the same effect bearing dated 19.9.2015. In a newspaper gazette published in Amar Ujala dated 2.9.2015, revisionist Moolchand has informed to public at large that he excludes his son Rahul and his wife Neha from his all the movable and immovable property and in future they will be responsible for their own act, although a copy of the post-mortem report of the deceased has not been brought on record but this averment of revisionist has not been denied by respondents that the cause of death of the deceased was found as asphyxia as a result of ante-mortem hanging in post-mortem report. This version is also relied by the investigating officer in his concluding report.
16. From perusal of previous F.I.R. lodged against revisionists and accused Rahul at the instance of present informant Sudhanshu on 1.10.2020, it appears that in said F.I.R. a specific allegation was made against Rahul, husband of the victim, that he had badly beaten the sister of the informant with intention to kill her on 31.12.2019 and asked the informant telephonically to come and take the carves of his sister. He rushed to the place where Rahul and his sister were residing and got the door opened by forcefully pushing the same and found his sister in injured condition whom Rahul Gupta had got injured badly in acting in conspiracy with his parents and brothers. He got his sister admitted in hospital, therefore, in that F.I.R. role of conspiracy has been assigned to present revisionists and accused Rahul is shown as perpetrator of the offence. Statement of three witnesses on which reliance has been placed by learned court below have been filed along with supplementary affidavit which consists statement of Sudhanshu Kumar as PW-1, Prabhat Kumar as PW-2 and Krishna Kumar as PW-3, who have supported the F.I.R. version and deposed regarding of complicity of present revisionists also in making demand of dowry & subjecting the deceased with matrimonial cruelty soon before her death and committing her dowry death. They have also stated that after first incident on 31.12.2019, they had got victim Neha treated in hospital but on second time she was done to death at the pace where she was residing with her husband. A child namely Vansh was born out of the wedlock of Rahul and Neha. A quarter was allotted to Rahul, after one and two years of the marriage and prior to that deceased and Rahul were residing with their parents. The parents of Rahul used to visit PAC quarter of Rahul to meet their son and daughter-in-law. Revisionists Moolchand Gupta and his wife Neelam Gupta had also filed affidavit before Conciliation Centre, Moradabad with regard to previous F.I.R. under Sections 498-A, 308 IPC and ¾ D.P. Act along with accused Rahul Gupta.
17. In present case Section 319 Cr.P.C. is involved which provides as underL-
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 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.
Hon'ble Apex Court in the case of Hardeep Singh's (supra) has observed in paragraph nos. 70, 71, 72, 80 of the judgment as under:-
"70. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial.
71. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.
72. The inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. It is the duty of the court to do so and therefore the power to perform this duty is provided under the Cr.P.C.
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 utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial."
18. In Hardeep Singh's (supra) case, Hon'ble Apex Court determined the test that has to be applied by the trial court for exercising powers under Section 319 Cr.P.C. Paragraph nos. 98 and 99 of the said judgment, which are relevant for the purposes of present revision, are reproduced as underL-
"98. 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.
99. 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."
19. In Manjeet Singh vs. State of Haryana, 2021 SCC Online SC 632. Hon'ble Apex Court in paragraph no. 13 summarized legal position with regard to Section 319 Cr.P.C. as folllows:-
"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 CrPC?"
20. In present case, learned court below has placed reliance on statements of PW-1 Sudhanshu Kumar, PW-2 Prabhat Kumar and PW-3 Krishna Kumar, who are family members of the deceased and on the basis of their evidence recorded during trial, the court has found their prima facie complicity in the offence and summoned them as additional accused under Section 319 Cr.P.C. Learned trial court has cited observations of Hon'ble Apex Court in Hardeep Singh's (supra) case wherein it is held that 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 unreubutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising powers under Section 319 Cr.P.c.. This is admitted position that present revisionists were residing separately from co-accused Rahul Gupta and deceased. Accused Rahul Gupta who is facing trial was residing with the deceased in his quarter allotted to him in PAC campus and revisionists are residing in Samrat Ashoknagar, near Saini Sansthan, P.S. Majhola, District Moradabad. Only disputed position is that according to revisionists they had disassociated all the relationship with accused Rahul due to his bad entics and would not visit Rahul and his wife long before the incident whereas according to informant side the revisionists were in constant touch with Rahul Gupta and used to visit him and his deceased wife at their place. In F.I.R. and statements of witnesses, allegations of demand of dowry are levelled against accused Rahul and revisionists but this factual position is not denied that revisionist no. 1 had made a public notice from newspaper gazette in the year 2015, just after some time of the marriage of Rahul and deceased to the effect that he is disassociating all relationship with his son Rahul and he excludes him from his property.
21. Be that as it may, revisionists were living under same roof where accused Rahul Gupta and his deceased wife were residing. This fact has also come in evidence that deceased lived in her matrimonial home after around two years after marriage and since then she was residing with her husband in his PAC quarter, away from her in-laws.
22. In F.I.R. lodged by the informant under Section 498-A, 308 IPC with regard to incident dated 9.12.2020, role of conspiracy has been attributed to the revisionists and direct role of causing serious injuries to the victim is attributed to accused Rahul Gupta and the said case was compromised at District Legal Services Centre, Moradabad on good advice of some relatives. The death of the deceased has been found on investigation as suicidal hanging, however, this aspects has not been considered by learned court below while exercising the discretionary power under Section 319 Cr.P.C. and whereby accused revisionists have been summoned as accused to face trial together with accused Rahul, already facing trial.
23. Impugned order is vitiated due to non application of judicial mind towards these fact which are material in facts and circumstances of the case. Ground taken in present revision are of material nature. Revision is liable to be allowed and impugned order is liable to be set aside as the same is not found sustainable under law.
24. Accordingly, impugned order is set aside and revision is allowed.
25. Matter is remanded to learned court below to hear on application under Section 319 Cr.P.C. moved by the respondent no. 2, afresh, after giving him opportunity of hearing in the light of observations made in present revision, preferably within a period of two months from the date of production of authenticated/certified copy of this order.
Order Date :- 25.8.2023 A.P. Pandey