Allahabad High Court
Zamila Begum vs State Of U.P. And Another on 10 February, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 88 Case :- CRIMINAL REVISION No. - 1534 of 2015 Revisionist :- Zamila Begum Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anil Kumar Rai Counsel for Opposite Party :- Govt.Advocate,Dhirendra Srivastav Hon'ble Raj Beer Singh,J.
1. As no one is appearing on behalf of the revisionist to press the present criminal revision since last several dates, thus, no useful purpose would be served by keeping this revision pending and hence, the revision is being decided on merits.
2. Heard learned A.G.A. for the State and perused the entire record.
3. The present criminal revision has been preferred against the order dated 04.04.2015, passed by the Additional Sessions Judge, (FTC), Chandauli in session trial no. 69 of 2012, arising out of Case Crime No. 56 of 2012, under Sections 366, 376 I.P.C., Police Station Mugalsarai, District Chandauli, whereby application filed by the revisionist under Section 319 Cr.P.C. for summoning of the opposite party nos. 2 to 4, to face the trial for the aforesaid offences, has been rejected.
4. Perusal of record shows that the revisionist/informant has filed an application, under Section 319 Cr.P.C. in the above-stated case for summoning of opposite party nos. 2 to 4, who are father-in-law, mother-in-law and uncle of co-accused Helal. It was alleged in the first information report that co-accused Helal has enticed away the daughter of revisionist/informant and committal rape upon her.
5. Learned A.G.A. for the State has opposed the revision and argued that there is no illegality, perusing or error of jurisdiction in the impugned order.
6. Before considering the merits of the contentions, it would be relevant 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."
7. By perusing the provisions 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. In case of Hardeep Singh Vs State of Punjab, 2014 0 Supreme (SC) 27, the Hon'ble Apex Court held as under:
"10. 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 charge-sheet.
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 charge-sheeted 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 charge-sheeted 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 again been considered by Hon'ble Apex Court in case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another (criminal appeal No. 1105 of 2019, decided on 23rd July, 2019 and it was held as under:-
"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."
9. Keeping in view the aforesaid legal position and considering the material on record, including the statements of PW-1 Zamila Begun (informant/revisionist) and PW-2 Farida Bano (victim), it appears that there is no such evidence against opposite party nos. 2 to 4, so as to make out a case for their summoning under Section 319 Cr.P.C. The allegations of kidnapping and rape have been levelled against co-accused Helal. Learned trial Court, after discussing the entire facts, concluded that no case against the opposite party nos. 2 to 4 is made for their summoning under Section 319 Cr.P.C., and thus application under Section 319 Cr.P.C. filed by the revisionist has been rejected.
10. Considering all attending facts and circumstances of the case as well as above stated position of law, it cannot be said that impugned order suffers from any such illegality or perversity or error of jurisdiction, so as to warrant any interference by this Court. The instant criminal revision lacks merit and thus, the same is liable to be set aside.
11. Accordingly, the instant criminal revision is dismissed.
Order Date :- 10.2.2023 Satish/Anand