Allahabad High Court
Ajay And Another vs State Of U.P. And Another on 13 January, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 88 Case :- CRIMINAL APPEAL No. - 8651 of 2022 Appellant :- Ajay And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Dewendra Singh,Satyendra Narayan Singh Counsel for Respondent :- G.A.,Amit Kumar Yadav,Karunesh Pratap Singh Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the appellants, learned counsel for the informant/respondent No. 2 and learned A.G.A. for the State.
2. The present criminal appeal has been preferred against summoning order dated 01.10.2022, passed by the Additional Sessions Judge/Special Judge (SC/ST Act), Gorakhpur in S.S.T. No. 09 of 2016 (State of U.P. Vs. Rama Shankar Gaur & others), arising out of Case Crime No. 210 of 2013 under Sections 419, 420, 406, 323, 504, 506 I.P.C. and Section 3(1)X of SC/ST Act, P.S. Sahjanwa, District Gorakhpur, whereby the trial court has summoned the appellants under Section 319 Cr.P.C.
3. Learned counsel for the appellants has argued that the impugned summoning order is against the facts and law and thus liable to be set aside. The first information report of this case was registered on 16.11.2011 by the informant/respondent No. 2 by moving an application under Section 156(3) Cr.P.C., wherein inter alia it was alleged that the father of appellants, namely, Rama Shankar, has shown a land to the informant for sale and thereafter, she purchased the said land from co-accused Shravan and Brahmdev by sale-deed executed in favour of the informant and mutation has also taken place. The allegation made in the first information report is that the informant has purchased 3 decimal land, whereas on the spot, it was found only 0.75 decimal. According to the prosecution version, on 05.02.2013 when the informant has gone into the house of the appellants for compromise, co-accused Rama Shankar and his sons, namely Ajay and Uday (appellants), have abused her by using caste indicative words and assaulted her. Learned counsel submitted that at that time, appellants were students and according prosecution version, the alleged land was shown to the informant by the father of the appellants and it was purchased by informant from co-accused Shravan and Brahmdev. Appellants have absolutely no role in the sale of the said land. After investigation, police did not find complicity of appellants and thus, they were exonerated and charge-sheet was filed against co-accused persons. It is submitted that during trial, appellants have been summoned under Section 319 Cr.P.C., vide impugned order dated 01.10.2022. It is further submitted that even as per the version of informant, the alleged incident of abusing and assaulting the informant took place inside the house of accused-appellants and thus it cannot be said that the incident took place in public view and, therefore, no offence under Section 3(1)X of SC/ST Act is made out. It is further submitted that there is absolutely no material to make out a prima facie case under Sections 419, 420, 406, 323 I.P.C. against the appellants and the allegations regarding Sections 504 and 506 I.P.C. are quite vague. The Trial Court did not consider the matter in correct perspective and committed error by summoning the appellants and thus the impugned order is liable to be set aside. In support of his contention, learned counsel has placed reliance upon the case of Hardeep Singh v. State of Punjab & Ors., AIR 2014 SC 1400.
4. Learned A.G.A. and learned counsel for the informant/respondent No. 2 have opposed the appeal and argued that both the appellants were named in the first information report but they were exonerated by the police during investigation, despite being evidence against them. During trial, appellants have been summoned on the basis of statements of the witnesses recorded before the trial court and in this connection, learned counsel has referred statements of PW-1 Kalawati and PW-2 Sandeep. It was submitted that there is no illegality or perversity in the impugned order.
5. Before considering the merits of the contentions, it is necessary to refer to Section 319 Cr.P.C. which reads 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) .......................
(3) .......................
(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."
6. By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused.
7. In the case of Hardeep Singh (supra), relied by learned counsel for the appellants, the Hon'ble Apex Court has held as under:-
"110. We accordingly sum up our conclusions as follows:
Question Nos.1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No. II Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. IV Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No.V Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?
A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
8. The issue regarding exercise of powers under Section 319 Cr.P.C. has also been considered by Hon'ble Apex Court in case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another, decided on 23rd July, 2019 [Criminal Appeal No. 1105 of 2019], and it was held as under:-
"9. The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, "the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are "it appears from the evidence"....."any person"....." has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court.
10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly which reads as under:-
105. Power under Section 319 CrPC is a discretionary and an extraordinary 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."
9. Keeping in view the above referred legal position, in the instant case, it may be stated that both the appellants were named in the first information report but as their involvement was not found, thus, they were exonerated during investigation. In the first information report, which was lodged by moving an application under Section 156(3) Cr.P.C., it was alleged that informant has purchased 3 decimal land from co-accused Shravan and Brahmdev on assurance of co-accused Rama Shankar, who is father of appellants, and mutation has also taken place but later on it was found that on the spot, the said land was only 0.75 decimal. The informant has also alleged that on 05.02.2013 when she went to the house of co-accused Rama Shankar, she was assaulted by co-accused Rama Shankar and his sons, namely Ajay and Uday (appellants) and she was abused by using caste indicative words. Similar facts were stated by PW-1 Kalawati and PW-2 Sandeep in their statements before the court below during trial. Even as per prosecution version, the alleged incident of abusing took place inside the house of co-accused Rama Shankar and there is nothing to show that the informant was abused or humiliated in public view and thus, no offence under Section 3(1)X of SC/ST Act is made out. Similarly there is no material to make out a case under Sections 419, 420, 406, 323 IPC against the appellants. The allegations regarding other offences are quite vague and there is nothing to show that informant has sustained any injury. Considering the nature of evidence and all attending facts and circumstances of the case, in the light of aforesaid position of law, no case for summoning of appellants under Section 319 Cr.P.C. is made out. As observed by the Hon'ble Apex Court, for invoking power under Section 319 Cr.P.C., there must be strong and cogent evidence. The power under Section 319 Cr.P.C. cannot be exercised in a casual and cavalier manner. It appears that the court below has not considered the facts and the evidence in correct perspective while passing the impugned order. Perusal of impugned order shows that the appellants have been summoned by the court below by merely observing that during investigation as well as during trial the informant and another witness Sandeep have stated that appellants were involved in the incident.
10. In view of the aforesaid, it is apparent that impugned order is against facts and law and that no case for summoning of appellants under Section 319 Cr.P.C. is made out and therefore the impugned order is liable to be set aside.
11. The impugned order dated 01.10.2022 passed by the Additional Sessions Judge/Special Judge (SC/ST Act), Gorakhpur is set aside. The application filed by informant under Section 319 Cr.P.C. before the trial court stand dismissed.
12. The criminal appeal is allowed.
Order Date :- 13.1.2023 Suraj/Anand