Allahabad High Court
Smt. Anta Devi vs State Of U.P. Thru. Addl. Chief Secy. ... on 7 February, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:8234 Court No. - 12 Case :- APPLICATION U/S 482 No. - 926 of 2025 Applicant :- Smt. Anta Devi Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home U.P. Lko. And 4 Others Counsel for Applicant :- Praveen Tripathi,Sudha Pal Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
Heard learned counsel for the applicant, Sri Ajay Kumar Srivastava, learned AGA for the State of U.P. and perused the record.
By means of this application, the applicant has sought the following main relief(s):-
"Wherefore it is most respectfully prayed that this Hon'ble Court be pleased to quash the order dated 12.12.2024 passed by Sessions Judge, Gonda in Session Trial No. 1173/2023, State Versus Anil Kumar and Others whereby application under section 319 Cr.P.C. paper no. 38(kha) for summoning private respondent was rejected and application bearing paper no. 38(Kha) be allowed and opposite party no. 2 to 5 be summoned in interest of justice. It is further prayed that this Hon'ble Court be pleased to stay the operation and implementation of order dated 12.12.2024 passed by Sessions Judge, Gonda in Session Trial No. 1173/2023, State Versus Anil Kumar and Others during the pendency of instant Petition in the interest of justice."
The subject matter of instant case relates to Sessions Trial (S.T.) No.1173/2023 (State Versus Anil Kumar and Others) arising out of Case Crime No. 0233 of 2023, under Sections- 147, 149, 323, 504, 506, 304, 427 IPC, Police Station- Itiyathok, District- Gonda.
Vide order under challenge dated 12.12.2024 passed in S.T. No.1173/2023, detailed above, the Sessions Judge, Gonda (in short "trial court") rejected the application (paper No. 38 Kha) preferred by the applicant/prosecution under Section 319 Cr.P.C. The order under challenge dated 12.12.2024 on reproduction reads as under:-
"Date: 12.12.2024 Disposal of application U/s 319 CrPC., paper no. 38. Kha.
01- This application has been moved on behalf of complainant Smt. Anta Devi U/s 319 Cr.P.C. for summoning Raj Kumar Dubey@ Jhonge Neta, Pinku Mishra @Amit Kumar Mishra, Sonu Mishra and Monu Mishra as additional accused persons.
02- It is stated therein that in the orchard situated near her house, there is tree of jack-fruit. On 13.05.2023 at about 10.30 a.m. accused persons Anil Kumar Dubey and Daddan Dubey started plucking out the jack-fruit without her permission. When she and her father-in-law Parsuram resisted, accused persons Anil Kumar Dubey and Daddan Dubey, they hurled abuses and threatened to them and went away. After half an hour, Raj Kumar @ Jhonge having rod in his hand, Pinku Mishra having country made pistol (Katta) and Sonu, Monu, Daddan Dubey, Anil Kumar Dubey having lathi danda in their hands reached there and on the exhortation of Raj Kumar @ Jhonge Neta, they entered in the house of complainant hurling foul abuses. With the intention to kill, firstly Raj Kumar @ Jhonge inflicted blow of rod on the head of her father-in-law and dragged him outside of the house. On the hue and cry, when all her family members tried to save her father-in-law, Pinku Mishra opened fire in the air and threatened that if anyone comes forwards to save him then he will kill him. Due to this apprehension, complainant, her family members and passerby did not come forward to save her father-in-law. All the assailants apprehended that her father-in-law had died and they ran away from the spot. Thereafter, her father-in-law was taken to the hospital where he was declared dead.
03- It is further alleged that complainant/informant had given a tehrir (written report) to the police station concerned. In the said tehrir, she had specifically mentioned the name of Raj Kumar @ Jhonge, Pinku Mishra, Sonu Mishra, Monu Mishra, Daddan and Anil as assailants but police did not lodge the FIR on the basis of that tehrir and has lodged the FIR on the basis of another tehrir written by the police having the names of accused persons Anil Kumar, Nanke, Pinku, Monu, Daddan and Vinay only. When this fact came into her knowledge that police had eliminated the name of Raj Kumar Dubey, Sonu, Monu and Pinku, she had moved an application to S.P., Gonda, DIG and Chief Minister along with the affidavit of the witnesses. She had also filed a writ petition no. 6326/2023 Smt. Anta Devi Vs. State, before the Hon'ble High Court but police did not conduct the investigation in view of the application made by her and after concluding the investigation, police had filed the charge-sheet against the only accused persons Satyam@ Vinay, Anil and Daddan.
04-It is also alleged that after framing of the charge, prosecution examined her as PW-1 and other eye-witness Sukhai Lal as PW-2. Both the witnesses have specifically alleged against the Raj Kumar Dubey @ Jhonge Neta, Pinku Mishra, Sona Mishra, Monu Mishra, Daddan Dubey and Anil Kumar and also supported the prosecution version in their cross-examination.
05- Thus, there is cogent evidence against the 1- Raj Kumar Dubey @ Jhonge Neta, 2- Pinku Mishra, 3- Sonu Mishra and 4- Monu Mishra. Accordingly, urged to summon the accused persons Raj Kumar Dubey @Jhonge Neta, Pinku Mishra, Sonu Mishra and Monu Mishra for trial as there is great possibility that they would be convicted.
06- Contrary to that, accused persons filed their objections through paper no. 39 Kha wherein it is mentioned that there are major contradictions in the evidence of PW-1 Anta Devi and PW-2 Sukhai Lal. There is no such type of evidence at this stage that Raj Kumar @ Jhonge Neta, Pinku Mishra, Sonu Mishra and Monu Mishra can be summoned. It is also mentioned in the objection that there are contradictions in the details of occurrence, place and manner of occurrence. It is further mentioned that at the instance and under pressure of real accused Balram Tiwari prosecution witnesses have discarded the name of Balram Tiwari and added the name of his opponent and also moved this application U/s 319 Cr.P.C. It is also stated that in the tehrir/ FIR, name of Raj Kumar Dubey @Jhonge Neta, Pinku Mishra, Sonu Mishra, Monu Mishra is not mentioned regarding their involvement in the commission of the incidence. Their names were also not stated by the Anta Devi and Sukhai Lal in the their statement recorded U/s 161 Cr.P.C.. It is also mentioned that in compliance of the Hon'ble High Court order passed in writ petition no. 6326/2023, the matter was inquired by the S.P., Gonda, where it was found that due to political and village enemity on the conspiracy of Balram Tiwari @ Shiv Kumar Tiwari, complainant Anta Devi has moved the application showing the involvement of Raj Kumar @ Jhonge and his driver Pinku while at the time of alleged incident Raj Kumar Dubey @ Jhonge and Pinku Mishra were not present at Gonda. It is also mentioned that on the inquiry held by police no person in the name of Rinku and Monu S/o Damodar, R/o Bichaupurwa Dariyapur Hardopatti, P.S- Intiyathok, Gonda was found. It is also alleged that whole of the prosecution story is based on false and flimsy ground. On above basis, urged for rejection of the instant application.
07- I, have heard learned counsel for the applicant/complainant and learned DGC (Crl.) for the State as well as learned private counsel for the accused persons and perused the record.
08- On the perusal of record, it transpires that in instant case, initially a FIR was lodged on the basis of tehrir (written report) given by the complainant Anta Devi, the perusal of the same makes it evident that there was allegation with regard to the involvement of accused persons Anil Kumar, Nanke, Rinku, Monu, Daddan and Vinay against incidence happened on 13.05.2023 at about 10.30 a.m. due to enemity and name of Raj Kumar Dubey @Jhonge Neta is not mentioned with regard to his involvement in the commission of the offence.
09- After completion of investigation, the 10. has filed the charge sheet only against the accused persons Anil Kumar, Dadden Arun and Vinay Kumar@ Satyam. Thus, the name of Rinku and Monu were not found in the complicity in the murder of the deceased.
10- After framing of charge against Anil Kumar, Daddan and Vinay @ Satyam prosecution has adduced 02 witnesses. Informant/complainant Smt. Anta Devi as PW-1 and Sukhai Lal as PW-2.
11- Before considering the evidence of both of the prosecution witness, the provision U/s 319 Cr.P.C is expedient to be mentioned here:-
"S. 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) xxxxx (3) xxxxx (4) xxxxx 12- The law pertaining to the summoning of an additional accused under Section 319 of the Cr.P.C. already stands articulated by Hon'ble the Supreme Court in Hardeep Singh's Vs. State of Punjab 2014 (3) SCC 92, wherein Hon'ble the Supreme Court while discussing the powers of a Court under Section 319 of the Cr.P.C. has laid down the following parameters to be taken into account while summoning a person as an additional accused under Section 319 Cr.P.C.:-
"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 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 facle 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.
13- The degree of satisfaction required to exercise power under section 319 Cr.P.C. is well settled after the above referred decision. The evidence before the trial court should be such that if it goes unrebutted, then it should result in conviction of the person who is sought to be summoned. As is evident from the above-referred decision, the decree of satisfaction that is required to exercise power under section 319 Cr.P.C. is much stricter, considering that it is a discretionary and an extra ordinary power. Only when the evidence is strong and reliable, can the power be exercised. It requires much stronger evidence than mere probability of his complicity.
14- Thus it is abundantly clear that the powers under Section 319 of the Cr.P.C. cannot be used simply because the prosecution/complainant believes that someone else might also be guilty of the offence. Rather, it should be based on strong and cogent evidence presented before the Court. The evidence collected by the investigating agency subsequent to the lodging of an FIR should establish more than just a prima facie case, meaning it should be stronger than a probability of a person's involvement but not reaching the level of certainty required for conviction.
15- Importantly, a Court should refrain from exercising powers under Section 319 of the Cr.P.C., If it is not satisfied that the evidence, If unrebutted, would lead to the conviction of the person, who is being sought to be summoned as an additional accused under Section 319 of the Cr.P.C. The object and purpose behind Section 319 of the Cr.P.C. is to allow the Inclusion of a person as an additional accused during trial but it definitely does not authorize the Court to form an opinion on the guilt of the accused. Therefore, while deciding an application under Section 319 of the Cr.P.C., the role of the Court is limited to consider whether there is sufficient evidence to try the person sought to be summoned as an additional accused together with other accused, who already stand challaned, and not to determine their guilt.
16- In another case Shankar Vs. The State of Uttar Pradesh & Ors., (2024) 06 SCR 10, the Hon'ble Apex Court has held that -
"Degree of satisfaction required to exercise power u/s. 319 is much stricter, considering that it is a discretionary and an extra-ordinary power. Only when the evidence is strong and reliable, the power can be exercised. It requires much stronger evidence than mere probability of his complicity. Appellants were named in the first Information statement by the first informant despite not being an eyewitness to the offence, however, in the statement u/s. 161 Cr.P.C, first Informant clarified that her family had a long-standing enmity with appellants' family; that the names of appellants were written in the FIR falsely and without full information; and that the appellants were not Involved in the murder of her son. Even in the charge sheet, the names of the appellants were not mentioned as accused. It is only in her deposition before the trial court the names of the accused resurfaced again. Almost a year later, the prosecution chose to file an application u/s. 319. Change of circumstance which the prosecution seeks to contend on the basis of first Informants deposition does not satisfy the requirement of s. 319 at all First Informant not being an eye witness, her deposition not sufficient enough to invoke the extra-ordinary jurisdiction u/s. 319 to summon the appellants. No other witnesses deposed anything against the appellants. No documentary evidence collected against the appellants. Also no role attributed to the appellants. These factors when looked in a holistic manner, make it clear that the degree of satisfaction required for exercising power u/s. 319 not met with. Trial court erred in allowing the application u/s. 319 and issuing summons to the appellants. High Court having failed to quash the order of summons, the order passed by the trial court as also by the High Court set aside."
17- Thus, in view of the provisions contained U/s 319 Cr.P.C. and the principles laid down by the Hon'ble Apex Court in aforesaid case laws, the evidence of PW-1, Smt. Anta Devi and PW-2 Sukhai Lal would be considered.
18 Complainant Sm.. Anta Devi as PW-1 deposed in her examination-in-chief that-
on 13.05.2023 at about 10:00 a.m. to 10.30 a.m., when accused persons Anil and Daddan were plucking the jack-fruit, then she herself and her father-in-law Parsuram resisted them, then Anil and Daddan went to their house. After sometime, Anil, Daddan along with Pinku, Sonu, Monu, Jhonge @ Raj Kumar Dubey arrived at her home, dragged her father-in-law Parsuram and inflicted blows on him. It is also stated that they were inflicting blow with lathi-danda and iron rod. Rajkumar Dubey was inflicting with rod and one of the accused Pinku has opened fire in the air and extended threat of life. It is further stated that after the incidence injured was brought to the District Hospital, Gonda where after half an hour during treatment her father-in-law succumb/died. It is specifically stated by the complainant that on her dictation, tehrir (written report) was scribed by someone and after scribing of the tehrir, she put her thumb impression upon it and presented it before the police station. On that basis a FIR has been lodged. She proved the tehrir as Exhibit Ka-1. She further deposed that at the time of scribing of tehrir she had told the name of Raj Kumar @ Jhonge but due to mistake, the scriber did not mention the name of Raj kumar. She further stated that she had stated to the Investigating officer (in short I.0) that Anil, Daddan, Rajkumar Jhonge, Sonu, Monu and Pinku had inflicted blows to the deceased.
19. Thus, from the testimony of complainant, it reveals that tehrir was scribed on her dictation and she has proved the tehrir as Exhibit Ka-1 but, in the tehrir name of Raj Kumar@ Jhonge is not mentioned as an accused. Though, she explained that by mistake of scriber name of Raj Kumar Dubey @ Jhonge Newa could not be written. But, here it is to be mentioned that in the case of criminal appeal no. 4656 of 2024, Hetram @ Babli Vs. State of Rajasthan & Another the Hon'ble Apex Court held that-
"while deciding an application under section 319 Cr.P.C., the court must consider the cross-examination as well. If an application U/s 319 of the Cr.P.C is made after the cross-examination of witness, it will be unjust to ignore the same. The power under section 319 of the Cr.P.C. cannot be exercised when there is no case made out against the persons sought to be implicated."
20- Keeping in view the principle laid down by the Hon'ble Apex Court on the perusal of evidence of PW-1, it transpires that in her cross-examination complainant has stated that -
neither accused Balram Tiwari had participated in the said occurrence nor he was involved in the conspiracy. He is her parokar in this case. She further stated that wife of Balram Tiwari is village Pradhan named as Usha Devi, who had contested the election against Shri Ram Tiwari. She further stated that tehrir was got written in the hospital but who scribed it she cannot tell. Tehrir which was got written, the scriber did not read over to her.
21- Thus, from whole of the evidence testimony of complainant (examination-in-chief and cross-examination), it is evident that she has given contradictory statement with regard to contents mentioned in the tehrir. On one hand, she had stated that on her dictation tehrir was scribed and after scribing, it was read over to her then she put her signature on it. On the other hand, she stated that scriber did not read over to her and scriber has mistaken skipped the name of Raj Kumar while she had told the name of proposed accused to the scriber. She had also told the name of proposed accused to the I.O, but the name of Raj Kumar @ Jhonge is neither mentioned in the tehrir nor in the FIR as well as it is not mentioned in the statement U/s 161 of Cr.P.C. recorded by the I.O.
22- PW-2 Sukhai Lal 5/o Parsuram, has stated before the court on oath that-
The incident took place on 13.05.2023 at around 09:30 a.m.. and at that time he was in the field. The accused Anil and Daddan were plucking jack-fruit in his garden. His father Parsuram and sister-in-law Anta Devi resis er. them from plucking the jack-fruit, then they went away abusing him and said that they teach the lesson. After some time, Anil, Daddan, Jhonge @ Rajkumar Dubey, Sonu, Monu and Pinku came to his house and hurled foul abuses. When his father ran Inside the house to save his life, the accused persons entered in the house and dragged his father. Accused Rajkumar @ Jhonge had a rod in his hand, Pinku had a country made pistol (katta) in his hand and others were carrying sticks. Rajkumar @ Jhonge hit first with the rod. Thereafter on hue and cry he also reached there then Pinku opened fired with katta and others dragged his father near the canal by beating him with sticks. There also the accused persons assaulted his father and went away hurling foul abuses. When they arrived, the accused persons have gone away. He took his father to the district hospital in ambulance 108, where during treatment his father succumb to death. Over a dispute of plucking Jackfruit, the accused persons Anil, Daddan, kajkumar alias Jhonge, Sonu, Monu and Pinku have beaten up his father and injured him due to which he died".
23- In his cross-examination he has stated that-
He does laborer work at Ludhiana and I.O. has not recorded his statement.
Here, it is expedient to mention that I.O. has not recorded his statement as eye witness while he deposed in examination-in-chief himself as eye-witness. But, in his examination-in-chief he has stated that in beginning Rajkumar @ Jhonge had luflicted tutib rod, then on hue and cry be (himself) arrived these. Meaning thereby, at the time of inflicting blow by proposed accused Raflormar Jhonge by iron rod he was not present and after sustaining injury this witmess arrived there.
24- As per cross-examination I.O. did not recorded his statement while in case diary his statement has been recorded by the I.O. wherein, it is mentioned that at the time of alleged incident he was present at Ludhiana and after getting Information he arrived at the village. In his cross examination, at page no.-2, he has stated that he is not literate person, when Anta Devi got the tehrir scribed at the district hospital, at that time one relative, who is brother-in-law of his nephew named Daroga, was present who is literate person.
But, it is surprising that when a literate person was present with complainant at the time of scribing tehrir and after read over to complainant she had put her thumb impression then why it was not noticed by the brother-in-law of the nephew of this witness that name of Rajkumar was not mentioned. Although complainant has stated that when this fact came into his knowledge then she moved an application before the S.P, Gonda but no copy of such type of application is presented before this court.
25- Further, Sukhai Lal, PW-2 in his cross-examination, at Page 2, has stated that-
Earlier Balram Tiwari and Rajkumar @Jhonge used to live together and now they live separately. In pradhani election both of them have contested their candidates against each other. His grandfather's name is Jaijai Ram. Jaijai Ram's father was Hulas. Jaijai Ram and Nanakau were real brothers. Nanakau's son is Sawli Prasad, Sawli's son was Mohan Lal. Accused Anil's father is Shesh Narayan. He did not know whether Sawli Prasad had executed will deed regarding 01 acre of land in the name of Shesh Narayan. He did not know that any case was filed between them or not.
26 - Further as per autopsy report of the deceased Parsuram 09 ante-mortem Infurtes were found on the body which are as follows:-
1-contusioh 30 cm10 cm over right side back of chest, underlying 5th to 10th rib fracture under lying with scapula bone Fracture.
2-contusion 15 5 cm back of left scopula.
3-contusion106 cm left side lateral aspect of chest underlying 5th to 10 rib fracture.
4-contusion 16 12 cm left side buttock.
5-contusion 14 8 left side back of thigh.
6-contusion 8 cm left side back of knee 7-contusion 10cm x all round left elbow underlying bone fructure with lacerated wound cm elbow (left) 8-Lacerated wound 2 1 cm left little toe 9-contusion 7 4 cm over right face.
Here, it is expedient to mention that informant/complainant Smt. Anta Devi has mentioned in her application moved U/s 319 Cr.P.C. that Raj Kumar@ Jhonge Neta inflicted blow of iron rod on head of the deceased but neither it was mentioned in the FIR nor such injury was found on the head of the deceased at the time of post-mortem. Only contusion on back of chest, scapula, buttock, thigh, knee, elbow and one lacerated wound on the little toe was found.
27- Apart from this, I.O. has recorded the statements U/s 161 Cr.P.C. of independent witnesses Ankit, Vijay Mishra and gunner (Head Constable Natraj Ranjan) of Raj Kumar@ Jhonge, who have stated that on the date of alleged incident Raj Kumar @Jhange and nis driver Pinku were present at Gonda.
28- Also, Bhim, whose statement U/s 161 of Cr.P.C. is recorded has stated to the I.O. that there was rivalry between Balram Tiwari and Rajkumar @Jhonge. Wife of Balram Tiwari while being Pradhan of his village has misused government money. On the instance of Raj Kumar @Jhonge and others an inquiry was conducted in which Balram Tiwari was found guilty. Due to this enmity Balram Tiwari wants to sent Raj Kumar @ Jhonge to jail. Similar Statement was given by other witnesses Hariram and Pancham Lal also to the I.O.
29- Thus, it reveals that there was political enmity between the parties from the Inception as Sukhai Lal in his evidence at page no. 2, has stated that he had not accompanied his bhabhi Anta Devi for lodging the FIR to police station Intlyathok. When his father died then he returned to his home from hospital. He has stated that brother-in-law of his nephew namely Daroga went to the hospital with the complainant. He further stated that in cross-examination that accused Balram Tiwari @ Shiv Kumar had not participated in the commission of offence.
30- Thus, from the above facts, evidence and material available on record, it is evident that there are major contradictions with regard to complicity of proposed accused persons in the commission of offence and there is no cogent, reliable and clinching evidence available which may inspire confidence when all the factors are looked in the holistic manner, it would be clear that the higher degree of satisfaction that is required for exercising the power U/s 319 Cr.P.C. is not met, in the present case.
31- For the reasons stated above, the application U/s 319 Cr.P.C. is liable to be dismissed.
32. Accordingly, application no. 38 Kha is hereby dismissed."
Impeaching the orders impugned dated 12.12.2024, learned counsel for the applicant says that the trial court while rejecting the application of the applicant has not considered the law settled by the Hon'ble Apex Court on the issue in various pronouncements, as such, indulgence of this Court is required in the matter.
It is also stated that the evidence before the trial court ought to have been considered for the purposes of rejecting or allowing the application under Section 319 Cr.P.C. and in the instant case, the trial court while rejecting the application preferred by the applicant under Section 319 Cr.P.C. has not considered the statement(s) of the applicant (PW-1) and Sukhai Lal (PW-2) recorded before it in its true spirit, as appears from the order dated 12.12.2024. As such, indulgence of this Court is required in the matter.
On the contrary, learned AGA says that the order impugend dated 12.12.2024 is perfectely justified and need not be interfered with by this Court.
Considered the aforesaid and perused the record.
The law on the issue is well settled. In view of the observations made by the Hon'ble Apex Court in the judgment passed in the case of Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92, Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706, Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368, Manjeet Singh Vs. State of Haryana & Ors., (2021) 18 SCC 321, Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289, Yashodhan Singh and Others Vs. State of U. P. and Others, (2023) LiveLaw (SC) 576 : 2023 INSC 652, the trial Court while exercising the power under Section 319 Cr.P.C. is under obligation to consider the evidence recorded before it during trial as also the evidence received by it after cognizance is taken and before commencement of trial.
The Hon'ble Apex Court in the case of Hardeep Singh (supra) in para 78 observed that "the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation". and thereafter in para 85 it has been observed that "in view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The "evidence" is thus, limited to the evidence recorded during trial." and subsequently, in the case of Rajesh and Others (supra) in para 6.8 held that "Considering the law laid down by this Court in Hardeep Singh[Hardeep Singhv.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till the cross-examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) 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 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial." and thereafter, in the case of Manjeet Singh (supra) observed as under:
"15. The ratio of the aforesaid decisions on the scope and ambit of the powers of the court under Section 319CrPC can be summarised as under:
15.1. That while exercising the powers under Section 319CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished.
15.2. For the empowerment of the courts to ensure that the criminal administration of justice works properly.
15.3. The law has been properly codified and modified by the legislature under CrPC indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law.
15.4. To discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished.
15.5. 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.
15.6. Section 319CrPC allows the court to proceed against any person who is not an accused in a case before it.
15.7. 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.
15.8. Section 319CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial.
15.9. The power under Section 319(1)CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208CrPC, committal, etc. which is only a pre-trial stage intended to put the process into motion.
15.10. The court can exercise the power under Section 319CrPC only after the trial proceeds and commences with the recording of the evidence.
15.11. The word "evidence" in Section 319CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents.
15.12. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319CrPC is to be exercised and not on the basis of material collected during the investigation.
15.13. If the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319CrPC and can proceed against such other person(s).
15.14. That if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319CrPC can be exercised.
15.15. That power under Section 319CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not to wait till the said evidence is tested on cross-examination.
15.16. Even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the court is still not powerless by virtue of Section 319CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses).
15.17. While exercising the powers under Section 319CrPC the court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial.
16. Applying the law laid down in the aforesaid decisions to the facts of the case on hand we are of the opinion that the learned trial court as well as the High Court have materially erred in dismissing the application under Section 319CrPC and refusing to summon the private respondents herein to face the trial in exercising the powers under Section 319CrPC. It is required to be noted that in FIR No. 477 all the private respondents herein who are sought to be arraigned as additional accused were specifically named with specific role attributed to them. It is specifically mentioned that while they were returning back, Mahindra XUV bearing no. HR 40A 4352 was standing on the road which belongs to Sartaj Singh and Sukhpal. Tejpal, Parab Saran Singh, Preet Samrat and Sartaj were standing. Parab Sharan was having lathi in his hand, Tejpal was having a gandasi, Sukhpal was having a danda, Sartaj was having a revolver and Preet Singh was sitting in the jeep. It is specifically mentioned in the FIR that all the aforesaid persons with common intention parked the Mahindra XUV HR 40A 4352 in a manner which blocks the entire road and they were armed with the weapons.
17. Despite the above specific allegations, when the charge-sheet/final report came to be filed only two persons came to be charge-sheeted and the private respondents herein, though named in the FIR, were put/kept in Column 2. It is the case on behalf of the private respondents herein that four different DSPs inquired into the matter and thereafter when no evidence was found against them the private respondents herein were put in Column 2 and therefore the same is to be given much weightage rather than considering/believing the examination-in-chief of the appellant herein. Heavy reliance is placed onBrijendra Singh[Brijendra Singhv.State of Rajasthan, (2017) 7 SCC 706 : (2017) 4 SCC (Cri) 144] .
18.However none of DSPs and/or their reports, if any, are part of the charge-sheet. None of the DSPs are shown as witnesses. None of the DSPs are investigating officer. Even on considering the final report/charge-sheet as a whole there does not appear to be any consideration on the specific allegations qua the accused, the private respondents herein, who are kept in Column 2. Entire discussion in the charge-sheet/final report is against Sartaj Singh only.
19.So far as the private respondents are concerned only thing which is stated is:"During the investigation of the present case, Shri Baljinder Singh, HPS, DSP Assandh and Shri Kushalpal, HPS, DSP Indri found accused Tejpal Singh, Sukhpal Singh, sons of Gurdev Singh, Parab Sharan Singh and Preet Samrat Singh sons of Mohan Sarup Singh caste Jat Sikh, residents of Bandrala innocent and accordingly Sections 148, 149 and 341IPC were deleted in the case and they were kept in Column 2, whereas challan against accused Sartaj has been presented in the Court."
20.Now thereafter when in the examination-in-chief the appellant herein ? victim ? injured eyewitness has specifically named the private respondents herein with specific role attributed to them, the learned trial court as well as the High Court ought to have summoned the private respondents herein to face the trial. At this stage it is required to be noted that so far as the appellant herein is concerned he is an injured eyewitness. As observed by this Court inState of M.P.v.Mansingh[State of M.P.v.Mansingh, (2003) 10 SCC 414 : (2007) 2 SCC (Cri) 390] (para 9);Abdul Sayeedv.State of M.P.[Abdul Sayeedv.State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] ;State of U.P.v.Naresh[State of U.P.v.Naresh, (2011) 4 SCC 324 : (2011) 2 SCC (Cri) 216] , the evidence of an injured eyewitness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. As observed hereinabove while exercising the powers under Section 319CrPC the court has not to wait till the cross-examination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial under Section 319CrPC.
21.Now so far as the reasoning given by the High Court while dismissing the revision application and confirming the order passed by the learned trial court dismissing the application under Section 319CrPC is concerned, the High Court itself has observed that PW 1 Manjeet Singh is the injured witness and therefore his presence cannot be doubted as he has received firearm injuries along with the deceased. However, thereafter the High Court has observed that the statement of Manjeet Singh indicates over implication and that no injury has been attributed to either of the respondents except that they were armed with weapons and the injuries concerned are attributed only to Sartaj Singh, even for the sake of arguments if someone was present with Sartaj Singh it cannot be said that they had any common intention or there was meeting of mind or knew that Sartaj would be firing. The aforesaid reasonings are not sustainable at all.
22. At the stage of exercising the powers under Section 319CrPC, the court is not required to appreciate and/or enter on the merits of the allegations of the case. The High Court has lost sight of the fact that the allegations against all the accused persons right from the very beginning were for the offences under Sections 302, 307, 341, 148 & 149IPC. The High Court has failed to appreciate the fact that for attracting the offence under Section 149IPC only forming part of unlawful assembly is sufficient and the individual role and/or overt act is immaterial. Therefore, the reasoning given by the High Court that no injury has been attributed to either of the respondents except that they were armed with weapons and therefore, they cannot be added as accused is unsustainable. The learned trial court and the High Court have failed to exercise the jurisdiction and/or powers while exercising the powers under Section 319CrPC.
23.Now so far as the submission on behalf of the private respondents that though a common judgment and order was passed by the High Court inSatkar Singhv.State of Haryana[ CRR No. 3238 of 2018 reported asManjeet Singhv.State of Haryana, 2020 SCC OnLine P&H 2782 sub nomSatkar Singhv.State of Haryana] at that stage the appellant herein did not prefer appeal against the impugned judgment and order passed by the High Court inManjeet Singhv.State of Haryana[Manjeet Singhv.State of Haryana, 2020 SCC OnLine P&H 2782 [Ed.: This also disposed of CRR No. 3238 of 2018 by a common judgment and order]] and therefore this Court may not exercise the powers under Article 136 of the Constitution is concerned the aforesaid has no substance. Once it is found that the learned trial court as well as the High Court ought to have summoned the private respondents herein as additional accused, belated filing of the appeal or not filing the appeal at a relevant time when this Court considered the very judgment and order inSatkar Singhv.State of Haryana[ CRR No. 3238 of 2018 reported asManjeet Singhv.State of Haryana, 2020 SCC OnLine P&H 2782 sub nomSatkar Singhv.State of Haryana] cannot be a ground not to direct to summon the private respondents herein when this Court has found that a prima facie case is made out against the private respondents herein and they are to be summoned to face the trial.
24.Now so far as the submission on behalf of the private respondents that though in the charge-sheet the private respondents herein were put in Column 2 at that stage the complainant side did not file any protest application is concerned, the same has been specifically dealt with by this Court inRajesh[Rajeshv.State of Haryana, (2019) 6 SCC 368 : (2019) 2 SCC (Cri) 801] . This Court in the aforesaid decision has specifically observed that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well as who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the court is still not powerless by virtue of Section 319CrPC.
25.Similarly, the submission on behalf of the private respondents herein that after the impugned judgment and order passed by the High Court there is much progress in the trial and therefore at this stage power under Section 319CrPC may not be exercised is concerned, the aforesaid has no substance and cannot be accepted. As per the settled proposition of law and as observed by this Court inHardeep Singh[Hardeep Singhv.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , the powers under Section 319CrPC can be exercised at any stage before the final conclusion of the trial. Even otherwise it is required to be noted that at the time when the application under Section 319CrPC was given only one witness was examined and examination-in-chief of PW 1 was recorded and while the cross-examination of PW 1 was going on, application under Section 319CrPC was given which came to be rejected by the learned trial court. The order passed by the learned trial court is held to be unsustainable. If the learned trial court would have summoned the private respondents herein at that stage such a situation would not have arisen. Be that as it may, as observed herein powers under Section 319CrPC can be exercised at any stage from commencing of the trial and recording of evidence/deposition and before the conclusion of the trial at any stage.
26.In view of the above and for the reasons stated above, the impugned judgment and order [Manjeet Singhv.State of Haryana, 2020 SCC OnLine P&H 2782 [Ed.: This also disposed of CRR No. 3238 of 2018 by a common judgment and order]] passed by the High Court and that of the learned trial court dismissing the application under Section 319CrPC submitted on behalf of the complainant to summon the private respondents herein as additional accused are unsustainable and deserve to be quashed and set aside and are accordingly quashed and set aside. Consequently the application submitted on behalf of the complainant to summon the private respondents herein is hereby allowed and the learned trial court is directed to summon the private respondents herein to face the trial arising out of FIR No. 477 dated 27-7-2016 in Sessions Case No. 362 of 2016 for the offences punishable under Sections 302, 307, 341, 148 & 149IPC."
Considering the aforesaid as also the submissions advanced by the learned counsel for the applicant, learned AGA for the State of U.P. and also settled proposition of law on the issue, this Court finds no force in the instant application. It is for the following reasons:-
(i) The law says that for summoning a person to face the trial in exercise of power under Section 319 Cr.P.C., the court should come to the satisfaction to an extent that the evidence, if goes unrebutted, would lead conviction. [see: Hardeep Singh vs. State of Punjab reported in (2014) 3 SCC 92.]
(ii) In the instant case, the trial court considered (i) the case setup in the FIR, proved by the applicant/informant-Anta Devi (PW-1) and her statement recorded in trial; (ii) the statement of Sukhai Lal (PW-2); (iii) the injuries sustained by the deceased and (iv) the role attributed to proposed accused particularly to Raj Kumar Dubey @ Jhonge Neta, who as per prosecution hit the deceased on his head with rod, and Pinku Mishra @ Amit Kumar Mishra, who as per prosecution opened fire in the incident.
Upon due consideration, the trial court came the conclusion as under:-
"Thus, from the above facts, evidence and material available on record, it is evident that there are major contradictions with regard to complicity of proposed accused persons in the commission of offence and there is no cogent, reliable and clinching evidence available which may inspire confidence when all the factors are looked in the holistic manner, it would be clear that the higher degree of satisfaction that is required for exercising the power U/s 319 Cr.P.C. is not met, in the present case."
Upon due consideration of the evidenc available on record, this Court finds that conclusion of trial court is just and proper.
Having observed above, the instant application is dismissed.
Order Date :- 7.2.2025 Arun/-