Allahabad High Court
Ramnaresh And Others vs State Of U.P.And Another on 6 February, 2020
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD ?In Chamber Case :- APPLICATION U/S 482 No. - 709 of 2009 Order on Criminal Misc. Restoration Application No. 6 of 2019. Applicant :- Ramnaresh And Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Sudamaji Sandilya,Lakshman Singh,Sudhir Sandilya Counsel for Opposite Party :- Govt. Advocate,B.N. Singh Hon'ble Naheed Ara Moonis,J.
The instant restoration application has been moved with a prayer to recall the order dated 28.5.2019 whereby the application has been dismissed for want of prosecution and the interim order has been vacated. The order dated 28.5.2019 has been passed relying upon the decision of the case in the case of Asian Resurfacing of Road Agency Pvt. Ltd. and others Vs. Central Bureau of Investigation, AIR 2018 SC 2039 wherein it has been observed that the interim order shall come to an end on expiry of six months. However in exceptional cases the same may be extended by a speaking order.
It is necessary to consider the factual matrix of the case as to whether it is necessary to extend the interim order by restoring the petition to its original number.
Heard learned Senior Advocate Sri Vivek Sandilya assisted by Sri Manish Pandey, learned counsel for the applicants, Sri Manish Singh holding brief of Sri B.N. Singh, learned counsel for the opposite party no.2 and the learned A.G.A. on behalf of the State.
The instant petition filed on behalf of the applicants with the prayer to quash the order dated 3.1.2009 passed by the Additional Sessions Judge/ Fast Track Court-I, Jalaun at Orai in S.T. No. 213 of 2007 (State Vs. Rajesh) whereby the application under Section 319 Cr.P.C. has been allowed and the applicants have been directed to face trial under Sections 308, 323, 504 and 506 I.P.C., police station Kuthond, district Jalaun.
The prosecution case in a short conspectus is that the opposite party no. 2 lodged the first information report, which was registered as case Crime No. 40 of 2006, under Sections 323, 504 and 506 I.P.C., police station Kuthond, district Jalaun on 26.12.2006 against the applicants and one Rajesh in respect of the incident occurred on the same day at 7 A.M. mentioning therein that on 26.12.2006 at 7 A.M. when the complainant niece's had taken water from tap and thrown in the nali at this the brother of the applicants, namely, Rajesh Kumar abused her, the complainant's niece when returned to home was crying and complained of at this the complainant brother enquired from the applicants' brother Rajesh as to why he has abused her then he started grappling with the complainant's brother. The applicants arrived there having lathi and danda and they also started using abusive language and assaulted his brother. The complainant?s father and mother arrived there to save him. They had also been brutally assaulted. The local people of the vicinity arrived there who had witnessed the incident and tried to intervene and thereafter they escaped from the spot.
On this first information report, the police swung into action and after investigating the case the charge sheet was submitted only against Rajesh one of the brother of the applicants under Sections 308, 323, 504 and 506 I.P.C. and exonerated the applicants. Rajesh the brother of the applicants stood for trial, the charges were framed against him on 13.12.2007, the trial proceeded against him and the statement of the complainant/opposite party no. 2 was recorded as P.W. 1 and the statements of Ramji Lal brother of the opposite party no. 2 was recorded as P.W. 2. Both the witnesses have deposed that Rajesh started hurling abusive language at his brother who came there with lathi-danda and started grappling. The complainant had also sustained injury over his head. They had specifically stated that Naresh @ Pappu and Suresh are brothers of Rajesh.
P. W. 2 had deposed that all the accused persons came with lathi-danda. He has also specifically deposed that the brother of Rajesh, namely, Ram Nares, Pappu and Suresh came with lathi-danda and had started assaulting using vituperative words and on hue and cry various persons arrived there including his father and mother and while leaving the place Rajesh has given a blow of lathi over his head, his brother Pramod Kumar fell down after receiving the injury. He was taken in an injured condition on a cot. After the cross examination of both the witnesses an application was moved by the prosecution under Section 319 Cr.P.C. on 3.10.2008 to summon the applicants who have been named in the first information report but the charge sheet has been submitted only against Rajesh hence they are also liable to be summoned to face trial. On this application the objection was filed on behalf of the accused Rajesh that they have not been specifically named in the first information report with respect to causing of any injury to any person. Moreover, Ram Naresh was in Noida at about 9.30 A.M. He had gone to bring his children from school, there was no evThis court does not see any justifiable reason to recall the order dated 28.5.2019 and to extend the stay order dated 23.1.2009. The trial is pending since 2009, which should have come to its logical end by the trial court strictly in accordance with law and hence the restoration/recall application is dismissed.idence against Naresh, Pappu and Suresh as such they were exonerated by the police during investigation and hence the application moved under Section 319 Cr.P.C. is liable to be rejected.
The court below after considering the arguments of the Public Prosecutor as well as the objections raised by the accused in defence, the court below found that prima facie there is evidence to summon the applicants to face trial along with Rajesh, hence allowed the application under Section 319 Cr.P.C. vide order dated 3.1.2009.
The learned counsel for the applicants has submitted that even from the bare perusal of the first information report no specific role has been attributed to any of the accused persons even if the prosecution case is taken to be gospel truth the general role has been assigned that all the accused persons had assaulted with lathi-danda. However, the charge sheet was submitted only against one of the brother of the applicant, namely, Ramesh Gupta who is facing trial. Even in the statement of P.W. 1 general role of assault with lathi-danda has been mentioned whereas only after the statement of P.W. 2 who has merely stated that while departing from the place of incident the applicants' brother Rajesh had assaulted the complainant's brother thus specifying the role of assault to Rajesh. The medical report also shows that there is only one injury over his head. Other injuries are abraded contusion on non vital part. Injury nos. 1 and 2 were kept under observation and rest of the injuries were found simple caused by hard blunt object. Thus the applicants cannot be said to have caused any fatal injury for which they are being summoned to face trial along with co-accused Rajesh. The applicant no. 1 who is residing at Noida and on the relevant point of time he had gone to bring his children from school has also been implicated in the present case.
Initially an N.C.R. was registered, which was converted into a first information report on the basis of the medical report, though 4/5 persons were said to have assaulted the injured. In that case the injured would have received more injuries, thus medical evidence is inconsistent with the prosecution case. The real fact is that the respondent no. 2 and his brother Pramod Kumar and his father Dilasa Ram has attacked the applicants' father on 26.12.2006 at 5 A.M. with axe. The father of the applicants had moved an application under Section 156 (3) Cr.P.C. against whom the first information report was registered in which the complainant/opposite party no. 2 and others were released on bail and the case is pending for trial before the court below.
The opposite party no. 2 got registered an N.C.R. against the applicants as a counter blast.
Thus the order summoning the applicants to face trial in the present case in the absence of any strong evidence does not fulfil the requirement of Section 319 Cr.P.C.
The learned counsel has relied upon the decision of the Hon'ble Apex Court in Brijendra Singh and others Vs. State of Rajasthan, 2017 (7) SCC 706 and Kailash Vs. State of Rajasthan and another, 2008, Volume 63 SCC Page 194 and has contended that in the said case the summoning order passed under Section 319 Cr.P.C. was quashed and allowed the appeal of the accused persons, wherein it has been observed relying upon the decision of the Constitution Bench in Hardeep Singh Vs. State of Punjab and others, 2014 Volume 3 SCC 92 that it is the duty of the court to do justice by punishing the real culprit.
?8.The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished.
12. Section 319 Cr.P.C. springs out of the doctrinejudex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.
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 Cr.P.C. ?
19.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. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.? It also goes without saying that Section 319 Cr.P.C., which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of Section 207/208 Cr.P.C., the committal etc., which is only a pre-trial stage intended to put the process into motion.
?95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas V. State of Rajasthan [(2014) 3 SCC 321] , held that on theobjective satisfactionof the court a person may be ?arrested? or ?summoned?, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
105. Power under Section 319 Cr.P.C. 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."
In view of the aforesaid settled principle law the Hon'ble Apex Court held that the trial court acted in a casual and cavalier manner in passing the summoning order against the applicant and hence rightly quashed the summoning order.
In view of the above the case is squarely applies in the present facts and circumstances of the case, as such the summoning order passed against the applicants deserves to be quashed.
The learned counsel for the opposite party no. 2 has contended that the decision relied upon by learned counsel for the applicants in Kailash Vs. State of Rajasthan and another (supra) would not be applicable to the fact of the present case as in that case the application was moved where the trial was over and hence the application was rejected by the trial court, which was allowed by the High Court and ultimately the order of the High Court was set aside affirming the order of the trial court. Here in the present case the charges were framed on 13.12.2007 and after recording evidence of P.W. 1 and 2 the application was moved on 3.10.2008, thus it cannot be said that the order summoning the applicants passed by the court below suffers from any procedural error or illegality.
The learned counsel for the opposite party no. 2 further submitted that the petition was pending since 2009 and the proceeding was stayed by this court for a long period of ten years and on account of non-prosecution the case was dismissed for want of prosecution and interim order was also vacated by order dated 28.5.2019. Now the application has been moved for recalling the said order. In case the said order is recalled, the instant 482 petition will again continue to remain pending and the applicants who had already been summoned long back in 2009 will abuse and misuse the process of law, hence do not deserve any indulgence by this court for the recalling of the order dated 28.5.2019, hence this application deserves to be dismissed and the court below may be directed to proceed with the case as expeditiously as possible to bring it to its logical end.
Per contra the learned counsel appearing on behalf of the opposite party no. 2 has submitted that the applicants were named in the first information report who have also arrived there on the call of the co-accused Rajesh who is facing trial and all have started assaulting the complainant's brother in an attempt to save him the complainant and his father had also been assaulted by them. The applicants are the real brother of accused Rajesh. There is no illegality or perversity in the order passed by the court below in summoning them to face trial along with co-accused. From the perusal of the statement of the complainant and his brother who had examined as P.W. 1 and 2 they have categorically stated that the applicants had also participated in the crime in furtherance of common intention of the accused persons. The innocence of the applicants cannot be deciphered at this stage though they had actively participated in the commission of offence yet exonerated initially by the police during the investigation and after examination of P.W. 1 and 2 it is apparently clear that the applicants had also assaulted the brother of the opposite party no. 2, which is corroborated by the medical evidence. The medical report of the injured shows four injuries; firstly 4 lacerated wound on the skull; secondly abraded contusion on the right thumb, which was kept under observation; thirdly one contusion on the right side back; and fourthly abrasion on left knee.
The thread bare analysis of the injury report goes to show that even according to the statement of P.W. 2 who had stated that while leaving the place the accused Rajesh had assaulted on the head of the injured, but second, third and fourth injuries can be said to have been caused on the assault perpetrated by the other accused persons. The cumulative glance of the injury report shows that the injured was assaulted with intention to commit his murder.
The facts and circumstances of the present case is quite distinguishable with the case relied upon by the counsel for the applicants in the case of Brijendra Singh (supra). The case was decided in terms of plea of alibi raised by the appellant in the said case. In the present case it has been argued raising plea of alibi with regard to the applicant no. 1 whereas there is no explanation with respect to the absence of the applicant nos. 2 and 3. Moreover the plea of alibi will be considered by the trial court and it would be too pre mature to accept the plea of alibi of the applicant no. 1. The trial court after considering the evidence recorded of the P. W. 1 and 2 corroborated by the medical evidence has arrived at the conclusion that the applicants are also liable to be arrayed as accused along with the co-accused Rajesh who is already facing the trial, by the order impugned, which does not suffer from any manifest error. The complicity of the applicants cannot be said to be identical with the case relied upon on behalf of the applicants.
Having considered the submissions advanced by the learned counsel for the parties, this court does not find any justifiable ground for quashing the order impugned challenged in the present petition. All powers and scope of Section 319 Cr.P.C. has been dealt with by the Constitutional Bench of Hon'ble Apex Court in the case of Hardeep Singh (Supra). Illumined by the case law referred herein above and from the evidence recorded before the court below whereby the involvement of the applicants, though exonerated by the Investigating Officer has been found, hence the court below has rightly exercised his power under Section 319 Cr.P.C. It is the duty of the court not to allow a person who deserves to be tried to go scot-free in spite of complicity by manipulating the investigating and prosecuting agency. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law. The prayer for quashing the order is refused.
In view of the above prolix discussion, this court does not see any justifiable reason to recall the order dated 28.5.2019 and to extend the stay order dated 23.1.2009. The trial is pending since 2009, which should have come to its logical end by the trial court strictly in accordance with law and hence the restoration/recall application is dismissed.
The learned trial court shall proceed with the case in accordance with law on its own merit lest it may prejudice to either side.
However, in case the applicants appear before the court concerned in the aforesaid case within 30 days and apply for bail, the same shall be heard and disposed of in accordance with law after hearing the Public Prosecutor.
A copy of this order be communicated forthwith to the court below for information and necessary compliance.
Order Date :- 6.2.2020 Shahnawaz