Allahabad High Court
Sarvajeet And 2 Others vs State Of U.P. And Anr. on 20 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 89 Case :- CRIMINAL REVISION No. - 1165 of 2013 Revisionist :- Sarvajeet And 2 Others Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Manish Tiwary,Ashiwni Kumar Awasthi,Ashok Kumar Singh,Nirbhay Singh Counsel for Opposite Party :- Govt. Advocate Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the revisionists, learned AGA for the State.
None is present on behalf of opposite party no.2 despite service of notice.
This criminal revision is directed against the order dated 27.02.2013 passed by Additional Sessions Judge court no.24, Allahabad in S.T. No.755 of 2011 (State vs. Ram Babu). By the impugned order, the learned trial court in exercise of powers U/s 319 Cr.P.C. On an application of prosecution has summoned the revisionist-accused to face trial for the offence U/s 498A & 306 IPC with co-accused Ram Babu.
The perusal of the record, transpires that an FIR was lodged on 05.06.2002 at 04:00 pm by Ramendra Singh, the brother of opposite party no.2 regarding the incident alleged to have taken place on 05.06.2002 at about 2:30 pm. It was alleged that the marriage of sister of the complainant was solemnized with Ram Babu Singh in the year 1993. As the complainant was poor person, sufficient dowry was not given. Since last two years years his sister being tortured making allegations of theft of a chain. She was beaten today due to which she with her two minor sons jumped into the well. Her both sons have died while the sister has been saved. In this FIR in question/answer, it is also mentioned that the name of the sister of the complainant is Tara and she was being tortured by her husband Ram Babu who abeted her to commit suicide with her two sons aged about five and three years named Golu and Molu. After investigation, charge-sheet was submitted against Ram Babu Singh. During the course of trial, an application U/s 319 Cr.P.C. was filed by the victim/ prosecution alleging therein that the marriage of the victim was solemnized with Ram Babu and two sons Golu aged about 5 years and Molu aged about 3 years were born out of their wedlock. She was being harassed and tortured by her husband Ram Babu, Dewar Shiv Babu, the parent-in-laws namely Sona Devi and Sarvajeet Singh for demand of dowry. On 05.06.2002 being fed up with the torture, she was leaving for her mayaka with her sons then her husband and mother-in-law tried to push her in the well while her father in law and dewar were exhorting them. She with her both sons fell in the well being pushed by her husband and mother-in-law. A case crime no.194 of 2002 U/s 498A and 306 IPC was registered at P.S. Sarai Inayat, District Allahabad regarding the aforesaid incident, in which it is mentioned that the parent-in-laws, husband and dewar were involved in the incident. This fact is further corroborated in the application moved U/s 156 (3) Cr.P.C. and statement of the victim recorded before the trial court. On the aforesaid ground, prayer was made to summon Sarvajeet Singh, Sona Devi and Shiv Babu. The learned trial court by the impugned order has allowed the application and summoned the revisionist-accused U/s 319 Cr.P.C.
Learned counsel for the revisionists contended that FIR was registered only against Ram Babu Singh the husband of Tara Devi and it was alleged that he was torturing his wife Tara Devi, due to his torture she with her two sons Golu and Molu jumped into a well. In the statement recorded U/s 161 Cr.P.C. the first informant Ramendra Singh as well as Tara Devi reiterated the aforesaid allegations of the FIR and have not taken the name of revisionists- accused. Charge-sheet was also submitted only against Ram Babu Singh. In the statements before the trial court, the first informant Ramendra Singh P.W.-1 and Tara Devi P.W.-2 have put up a different story implicating the revisionist-accused. In the previous statements, it is specifically mentioned that the victim Tara Devi with her husband Ram Babu Singh live separately. It is further contended that the impugned order, does not show that their exist any compelling reasons to summon the revisionist. The trial court has also not recorded its satisfaction that from the evidence the revisionists have committed the alleged offence. The impugned order has been passed in a routing manner. There is no credible evidence for their summoning and no offence is made out against them The order passed by the court below is wholly illegal, perverse and against the settled principle of law.
Learned AGA contended that although the revisionists were not named in the FIR but the complainant and the victim in their statement before the court have implicated them. There are specific averments about their complicity in the offence. The learned trial court after analyzing the evidence on record has come to the conclusion that there is sufficient evidence and has passed the summoning order which is just and proper.
The Constitution Bench in the case of Hardeep Singh vs. State of Punjab AIR 2014 SC 1400 has laid down the test for invoking powers U/s 319 Cr.P.C. The relevant paras are quoted below:
"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 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."
The Apex Court further in the case of Ramesh Chandra Srivastava vs. State of U.P. 2021 0 Supreme (SC) 519 has held "The test as laid down by the Constitution Bench of this Court for invoking power U/s 319 Cr.P.c. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power U/s 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. the test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges."
The FIR of this case has been lodged by Ramendra Singh- the brother of Tara Devi (victim) and there is no whisper about the involvement of revisionist-accused in the incident. According to version of FIR Tara Devi fed up with the torture of her husband jumped into the well with her minor sons to commit suicide. During the course of investigation the first informant Ramendra Singh and victim Tara Devi has made the similar statement. They have not implicated the revisionist accused. For the first time in their statement before the trial court developing a new story, they have implicated the revisionist-accused. The story as set up by the witnesses during their testimony before the trial court has come for the first time and which is against the allegations of the FIR and the previous statements of these witnesses.
Applying the law as laid down by the Apex Court on the facts of the case on hand, it is clear that the learned trial court has materially erred in allowing the application U/s 319 Cr.P.C. There is inherent contradictions in the prosecution case as unfolded in the FIR, as explained in the statement of witnesses examined U/s 161 Cr.P.C. and the statements recorded during the course of trial. The court below while deciding the application U/s 319 Cr.P.C. has completely ignored the aforesaid aspect of the matter and has failed to record his satisfaction which is required for summoning the accused U/s 319 Cr.P.C. The evidence led by prosecution is not cogent one and cannot be the basis of summoning the revisionist-accused who are neither named in the FIR nor in the previous statements of witnesses recorded U/s 161 Cr.P.C. The impugned order suffers from material illegality which has been passed in a cavalier manner and not sustainable in the eye of law.
Accordingly the revision is allowed. The impugned order dated 27.02.2013 is hereby set aside.
Order Date :- 20.1.2023 C. MANI