Allahabad High Court
Dharmendra Kumar Saxena vs State Of U.P. And Another on 16 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:114831 Reserved on: 15.05.2024 Delivered on: 16.07.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 2164 of 2023 Revisionist :- Dharmendra Kumar Saxena Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajeev Nayan Singh,Sr. Advocate Counsel for Opposite Party :- G.A.,Javed Raza Hon'ble Rajeev Misra,J.
1. Heard Mr. V.P. Srivastava along with Mr. Manish Tiwary, the learned Senior Counsel assisted by Mr. Rajeev Nayan Singh, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Dilip Kumar, the learned Senior Counsel assisted by Mr. Javed Raza, the learned counsel representing first informant-opposite party-2.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 06.04.2018 passed by Additional Sessions Judge/Special Judge, P.C. Act, Court No.-1, Bareilly, in Sessions Trial No. 180 of 2018 (State Vs. Mehadi Khan and Others), under Sections 302, 120-B IPC, Police Station-Subhash Nagar, District-Bareilly, whereby the application dated 07.10.2015, under Section 319 Cr.P.C. (Paper No.- 16-Kha), filed by the prosecution, has been allowed. Consequently, the prospective accused (named in the FIR but not charge sheeted) i.e. revisionist (herein) has been summoned to face trial in aforementioned Sessions Trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 03.07.2009, a delayed F.I.R. dated 04.07.2009 was lodged by first informant, Nand Ram and was registered as Case Crime No. 995 of 2009, under Section 302 IPC, Police Station-Subhash Nagar, District-Bareilly. In the aforesaid F.I.R., Dharmendra Kumar Saxena i.e. the revisionist (herein) has been nominated as solitary named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that three unknown persons fired at Deep Chand Gangwar on account of which, he sustained injuries and fell on the ground. The FIR also records that the unknown persons fired gun shots at Deep Chand Gangwar only after the revisionist had exclaimed identifying the victim. The FIR concludes with the recital that the victim was taken to the hospital, where he ultimately died.
6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He visited the place of occurrence and recovered the dead body of deceased. The post mortem of the body of deceased was conducted on 04.07.2009 itself. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of deceased, the cause of death of deceased is shock and haemorrhage due to ante-mortem fire arm injuries. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-
"1. There is a gun shot of wound of entry of left side cheek 1 x 1 cm. Along and area of blackening and tattooing area 8 x 7 cm. And 5 cm. In front of left ear margin are inverted.
2. Gun shot wound of exit 4 x 3 cm. at the base of Rt. Ear and ear lobule, margin are everted.
3. Multiple abrasion present on Rt. Forearm supine aspect 4 x 3 cm. 2 cm below elbow joint.
4. Abrasion 2 x 2 cm. On Rt. Knee."
7. After having undertaken the preliminary exercise, subsequent to the lodging of FIR, Investigating Officer proceeded to verify the veracity of the allegations made in the FIR and also the complicity of named and other accused in the crime in question. Accordingly, he examined the following witnesses under Section 161 Cr.P.C.:-
(i). Nand Ram (first informant)
(ii). Sunie (Peon in BSA Office)
(iii). Umesh Kaushik
(iv). Kuldeep Gangwar
(v). Abdul Samad Khan
(vi). Jagdish (Driver)
(vii). Shobhit Saxena
(viii). Mamta Sahai
(ix). Tapas Misra
(x). Anil Saxena
(xi). Dharmveer
(xii). Pawan Kumar Sachan
(xiii). Karuna Shankar Dwivedi
(xiv). Raj Kumar Saxena
(xv). Mohan Singh (xvi). Roshan Lal (xvii). Satyapal (xviii). Narendra Gangwar.
8. Investigating Officer also obtained the CDR report of Mehandi Khan, Akhtar, Mansoor and also enquired about the location of the mobile phone of one Rajendra. On the basis of above, the other material collected by the Investigating Officer, during course of investigation and also the mitigating circumstances, that emerged during course of investigation, he came to the conclusion that it is the complicity of various other persons (not named in the FIR), which has emerged in the crime in question and not the named accused i.e. revisionist (herein). Accordingly, Investigating Officer submitted the police report dated 08.09.2009 in terms of Section 173(2) Cr.P.C., whereby following persons have been charge sheeted;-
(i). Akhtar Ali
(ii). Rajendra Pal
(iii). Mohd. Saeed
(iv). Ram Dulare
(v). Dharmveer
(vi). Mahendra Pal
(vii). Mushtaq
(viii). Rajendra Prasad Sharma
(ix). Bhagwandas
(x) Govind Ram
(xi). Jai Singh
(xii). Munna Lal
(xiii). Ram Swaroop
(xiv). Mehandi Khan
(xv). Mansoor Khan
9. After submission of aforementioned police report, the concerned Magistrate took cognizance upon same in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is traible exclusively by the Court of Sessions, therefore, the concerned Magistrate, in accordance with the mandate of Section 209 Cr.P.C., committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 180 of 2018 (State Vs. Mehadi Khan and Others), under Sections 302, 120-B IPC, Police Station-Subhash Nagar, District-Bareilly came to be registered and is now said to be pending in the Court of Additional Sessions Judge/Special Judge, PC Act, Court No. 1, Bareilly.
10. The concerned Sessions Judge proceeded with the trial. Charges were framed against charge sheeted accused in compliance of Section 211 Cr.P.C. However, the same were denied by the charge sheeted accused and he demanded trial. Resultantly, the trial procedure commenced.
11. Prosecution, in discharge of it's burden to bring home the charges so framed against charge sheeted accused, adduced P.W. 1 Nand Ram (first informant upto this stage.
12. After the statement-in-chief/examination-in-chief of aforementioned witness was recorded on 16.09.2015 before Court below, prosecution filed an application dated 07.10.2015, under Section 319 Cr.P.C. praying therein that since complicity of prospective accused namely Dharmendra Kumar Saxena (named but not charge sheeted) has also emerged in the crime in question as per the deposition of PW-1, therefore, he be also summoned to face trial in aforementioned Sessions Trial. This application came to be registered as Paper No. 16-Kha.
13. Court below evaluated and examined the allegations made in aforementioned application dated 07.10.2015 under Section 319 Cr.P.C. in the light of the deposition of PW-1 and ultimately, allowed the same, vide order dated 06.04.2018. Consequently, revisionist, who is a prospective accused (named but not charge sheeted), has now been summoned under Sections 302, 120-B IPC by Court below to face trial in aforementioned Sessions Trial.
14. Thus feeling aggrieved by the above order dated 06.04.2018, revisionist has now approached this Court by means of present criminal revision.
15. Mr. V.P. Srivastava along with Mr. Manish Tiwari, the learned Senior Counsel assisted by Mr. Rajeev Nayan Singh, the learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal and therefore, liable to be set aside by this Court. They have taken the Court to the deposition of PW-1 and on basis thereof, they submit that as per the deposition of PW-1, no cast-iron case is made out to summon the prospective accused (named in the FIR but not charge sheeted) i.e. the revisionist (herein) to face trial in aforementioned Sessions Trial. Referring to the order impugned, they submit that the same has been passed in derogation of the law laid down by the Supreme Court regarding the summoning of a prospective accused. Court below has allowed the application under Section 319 Cr.P.C., filed by the prosecution/first informant, only on the ground that as per the deposition of PW-1, documentary evidence, the statements recorded under Section 161 Cr.P.C. and the provisions contained in Section 319 Cr.P.C., a prima-facie case is made out against the prospective accused i.e. the revisionist herein. The reasonings so recorded by Court below are no reasonings in the eyes of law. In fact, the Court below has just recorded a bald conclusion for allowing the application under Section 319 Cr.P.C. filed by the prosecution. It is also contened that PW-1, in his deposition before Court below, has himself not supported the FIR inasmuch as, he has clearly stated that he was not present at the time and place of occurrence. In view of above, this witness has been declared hostile by Court below. On the above premise, it is thus urged that no prima-facie case can be said to have emerged on the basis of deposition of PW-1, so as to summon the revisionist to face trial. Consequently, the order impugned cannot be sustained and is, therefore, liable to be set aside by this Court.
16. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Dilip Kumar, the learned Senior Counsel assisted by Mr. Javed Raza, the learned counsel representing opposite party-2 have vehemently opposed the present criminal revision. They submit that order impugned is perfectly just and legal. Court below has allowed the application under Section 319 Cr.P.C. (Paper No. 16-Kha) filed by the prosecution upon due evaluation and examination of the material on record. As such, no illegality can be attached to the order impugned. The complicity of the revisionist, in the crime in question, has clearly emerged as per the material on record including the deposition of PW-1. They, further, contend that as per the deposition of PW-1, it cannot be conclusively concluded that the first informant/PW-1 in his deposition before Court below has not supported the FIR. Drawing a fine distinction in the deposition of PW-1, particularly with reference to the recital occurring at page 8 of the supplementary affidavit dated 23.04.2023, it is urged by the learned Senior Counsel for first informant that PW-1 could not identify the other accused present in Court. As such, simply on the basis of aforesaid recital occurring in the statement of PW-1, it cannot be said that PW-1 has not supported the prosecution story or the present revisionist is innocent. As such, no illegality can be said to have been committed by Court below in passing the order impugned. Consequently, the present criminal revision is liable to be dismissed by this Court.
17. Having heard Mr. V.P. Srivastava, the learned Senior Counsel along with Mr. Manish Tiwary, the learned Senior Counsel assisted by Mr. Rajeev Nayan Singh, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, Mr. Dilip Kumar, the learned Senior Counsel assisted by Mr. Javed Raza, the learned counsel representing opposite party-2 and upon perusal of record, this Court finds that the primary issue, which arises for determination in present criminal revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C.? As a corollary to above, Court will also have to consider;-Whether the order impugned is within the established parameters or not?
18. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by the Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Five Judges Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Five Judges Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra Yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177,
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xii) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17 (xvi) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xvi) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323, (xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301 (xx) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xxi) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xxii) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh. (xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537 (xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.
(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375 (xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172 (xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
19. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 06.04.2018 passed by Additional Sessions Judge/Special Judge, P.C. Act, Court No.-1, Bareilly, in Sessions Trial No. 180 of 2018 (State Vs. Mehadi Khan and Others), under Sections 302, 120-B IPC, Police Station-Subhash Nagar, District-Bareilly, whereby revisionist has been summoned under Section 319 Cr.P.C. to face trial in above-mentioned Sessions Trial.
20. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
21. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).
22. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).
23. A prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness without getting his examination-in-chief recorded, vide Hardeep Singh (Supra).
24. The Court while summoning a prospective accused must come to the conclusion that a prima-facie case for summoning of a prospective accused is made out and in this regard, the Court must record it's satisfaction in consonance with the observation made in paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra).
25. Though in view of the law laid down by the Five Judges Bench in Hardeep Singh (Supra) that a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness but in case, if the statement of the witness, who has deposed before Court below was also recorded under Section 161 Cr.P.C. then in such a circumstance, the Court must draw a parallel in between the deposition of the witness as well as his statement under Section 161 Cr.P.C. to find out whether something new has emerged in the deposition or not, vide Brijendra Singh (Supra).
26. The Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as it is a relevant material, vide Brijendra Singh (Supra).
27. A prospective accused can be summoned only if, an inference of guilt of the accused can be drawn as per the material on record, vide Brijendra Singh (Supra).
28. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).
29. A prospective accused should not be summoned by a Court by exercising it's jurisdiction in a casual and cavalier fashion but diligently, vide S Mohammad Ishpahani (Supra).
30. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence had emerged against a prospective accused and not merely on the basis of his complicity in the crime in question, vide S Mohammad Ishpahani (Supra).
31. In the judgments referred to above, there is a common thread that the Court can scrutinize the evidence on record while exercising power under Section 319 Cr.P.C. Further a prospective accused can be summoned only if a prima-facie case for summoning of a prospective accused is made out.
32. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly, vide paragraph 37 of judgement in Manjeet Singh (Supra).
33. An accused who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge, vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).
34. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's (Supra) case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
35. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.
36. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
37. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him, vide Yashodhan Singh and Others (Supra).
38. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 IPC and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C.
39. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of PW-1, Nand Ram (first informant), the revisionist could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier fashion."
40. A Five Judges Bench of the Supreme Court in Hardeep Singh (Supra) has held that an application under Section 319 Cr.P.C. can be filed by the prosecution after the statement-in-chief of one prosecution witness has been recorded. The Court in order to decide an application under Section 319 Cr.P.C. need not wait for the evidence of entire prosecution witness to be recorded. In the present case, it is not only the statement-in-chief but the examination-in-chief of PW-1 has been recorded. However, in view of the law laid down by the Apex Court as noted above, no illegality can be said to have been committed by Court below in deciding the application under Section 319 Cr.P.C. filed by the prosecution on the basis of the deposition of one prosecution witness i.e. PW-1.
41. The Bench in aforementioned judgment has also observed that a prospective accused can be summoned only when a prima-facie case is made out. In order to arrive at the conclusion that a prima-facie case is made out for summoning a prospective accused, the Court must record it's satisfaction. What will the nature and degree of satisfaction that is required to be observed before summoning a prospective accused is no longer shrouded in obscurity but stands crystallized in paragraph 106 of the report. For ready reference, the same is extracted herein under:-
"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 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."
42. Even though the parameters regarding exercise of jurisdiction under Section 319 Cr.P.C were formulated by the Five Judges Bench judgement in Hardeep Singh Vs. State of Punjab (supra), subsequently two different Division Benches of the Apex Court in Brijendra Singh and others Vs State of Rajasthan, (2017) SCC 706 and S. Mohammad Ispahani Vs. Yogendra Chamdak and others, (2017) 16 SCC 226 have redefined the parameters regarding exercise of jurisdiction under Section 319 Cr.P.C. On conjoint reading of the aforesaid two judgments, the following mandate stands emerged:-
(a) a prospective accused can be summoned under Section 319 Cr.P.C. upon consideration of the statement-in-chief of one prosecution witness. As such, Court concerned need not wait for the entire prosecution evidence to be recorded.
(b) the plethora of evidence collected by the Investigating Officer during course of investigation is required to be looked into by a Court dealing with an application under Section 319 Cr.P.C. as it is relevant material.
(c) Court while dealing with an application under Section 319 Cr.P.C. must examine the statement of the witness recorded under Section 161 Cr.P.C. and thereafter, draw a parallel to find out whether something new has emerged in the deposition of such a witness.
(d) a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question
(e) Court can summon a prospective accused, in exercise of it's jurisdiction under Section 319 Cr.P.C. only if, an inference of guilt of the prospective accused can be gathered from the material on record.
(f) jurisdiction under Section 319 Cr.P.C. is an extra-ordinary discretionary jurisdiction and should be exercised sparingly.
(g) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual and cavalier fashion.
(h) a prospective accused can be summoned only when some strong and cogent evidence has emerged against him and not merely on the basis of his complicity in the crime in question.
43. When the order impugned is examined in the light of above, it is evident that the revisionist, who is a prospective accused (named but not charge sheeted), has been summoned by Court below simply on the basis of deposition of PW-1, Nandram (first informant). However, after the statement-in-chief of this witness was recorded, he has been declared hostile. In his examination-in-chief, this witness has clearly and categorically stated that he was not present at the time and place of occurrence. As such, even as per the testimony of this witness, he is not an eye witness of the occurrence in question. Consequently, in view of above, it cannot be said that the complicity of present revisionist in the crime in question stands emerged as per deposition of PW-1 nor can it be said that strong and cogent evidence has emerged against the revisionist so as to establish something more than his mere complicity in the crime in question.
44. It is well settled that the deposition of a hostile witness is admissible in evidence up to the stage, he has supported the prosecution story. However, when the deposition of PW-1 is examined in the light of above, this Court finds that PW-1 Nandram in his examination-in-chief has clearly stated that he was not present at the time and place of occurrence. As such, it is the very credibility of PW-1, which now stands vanished. Consequently, on the basis of deposition of PW-1, no satisfaction that a prima-faice case is made out to summon the prospective accused to face trial could be recorded by Court below. In view of above, even as per the deposition of aforesaid witnesses, no strong and cogent evidence can be said to have emerged, which is more than mere complicity of the prospective accused in the crime in question. It is well settled that a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question. The charge sheet has been submitted against the charge sheeted accused, under Sections 302, 120-B IPC. No motive behind the occurrence has emerged against the revisionist as per the deposition of PW-1 at this stage. It is worth noticing that all the charge sheeted accused as well as the prospective accused do not belong to the same family. In such a circumstance, the motive behind the occurrence must be established. Reference in this regard be made to the judgment of the Supreme Court in State of Kerala Vs. P. Sugathan, (2000) 8 SCC 203.
45. When the order impugned is examined in the light of above, it cannot be said that a cast-iron case for summoning the prospective accused i.e. revisionist (herein) is made out. As such, Court below has erred in law and fact in passing the order impugned. In view of above, the Court below while passing the order impugned has committed a jurisdictional error, which has vitiated the order impugned warranting interference by this Court.
46. In view of the discussions made above, the present criminal revision succeeds and is liable to be allowed.
47. It is, accordingly, allowed.
48. The impugned order dated 06.04.2018 passed by Additional Sessions Judge/Special Judge, P.C. Act, Court No.-1, Bareilly in Sessions Trial No. 180 of 2018 (State Vs. Mehadi Khan and Others), under Sections 302, 120-B IPC, Police Station-Subhash Nagar, District-Bareilly, is, hereby, set aside.
49. Considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 16.07.2024 Vinay