Allahabad High Court
Amit Tomar @ Gautam vs State Of U.P. And Another on 26 November, 2020
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL REVISION No. - 2047 of 2020 Revisionist :- Amit Tomar @ Gautam Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ram Raj Pandey Counsel for Opposite Party :- G.A. Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the material on record.
2. In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereunder, the case is being disposed of finally at admission stage, without putting notice to opposite party No.2.
3. The instant revision has been preferred to quash the summoning order dated 19.10.2020 passed by Additional District & Session Judge, Court No.4, Baghpat, in application under Section 319 Cr.P.C. arising out of Session Trial No.268 of 2019 in Case Crime No. 157 of 2018, Under Section 304 I.P.C. Police Station- Baraut, District Bagpat, (State Vs. Jitendra & Bittu).
4. As per F.I.R. version, due to joy firing, grand-son of the informant was shot dead. In the F.I.R. present revisionist was named as main accused. After investigation, I.O. has exonerated the present revisionist in the Charge-sheet dated 22.04.2018 and submitting the same against another accused namely Jitendra @ Bittu, son of Raguveer.
5. Aggrieved by this, informant has moved an application under Section 319 Cr.P.C. alleging therein that in the marriage ceremony Jitendra @ Bittu and Amit Tomar @ Gautam, both were involved in joy firing resulted into the death of the grand-son of the informant. Learned counsel for the revisionist submitted that the name of the present revisionist has falsely been implicated in the F.I.R. just to save Jitendra @ Bittu, who is the main accused. It is further submitted that in the Post-mortem report two injuries have shown due to bullet injury one is exit wound and another is entry wound.
6. It is further submitted that on the pointing out of Jitendra @ Bittu, one countery-made pistol has been recovered which was used in the joy firing. It is further submitted that in deciding the application under Section 319, learned Court has failed to show his satisfaction with respect to complicity of the present applicant in the commission of crime and decided the matter in a causal and cavalier manner. In support of this, learned Court has placed reliance upon the judgement given by Hon'ble the Apex Court in the Case of Mohd Shafi Vs Mohd Rafiq & Anr., (2007) 4 SCR 1023. The relevant para nos. 7 & 13 of the aforesaid judgement is quoted below:-
"7. Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appears to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.
13. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed."
7. Per contra, learned A.G.A. has submitted that learned Court has passed the order after applying his judicial mind and he was satisfied after perusing the deposition made by P.W.1. He was fully satisfied qua complicity of the present revisionist in the commission of crime. There is no illegality, irregularity and infirmity in the impugned order.
8. I have very carefully examined the submissions advanced by the learned counsel for the parties and gone through the record. After examining the materials available on record, I find that no case is made out for interference by this Court, while exercising inherent power u/s 482 of Cr.P.C.
9. Deposition of P.W.-1 has clearly made out, prima facie, case against the present revisionist for issuing process u/s 319 of Cr.P.C., who is consistent in his statement and fully corroborating version of F.I.R. There is no ambiguity or contradiction in the statement of P.W.1 who has clearly stated about complicity of the present revisionist in the commission of crime.
10. Counsel for the applicants has not been able to point out any such illegality or impropriety or incorrectness in the impugned order which may persuade this Court to interfere in the same. There is also no abuse of court's process perceptible in the same which appears to have been passed after due application of judicial mind. All the facts and circumstances of the case have been appreciated in right perspective and even the law point on the issue has been duly discussed. It is true that summoning of an accused under Section 319 Cr.P.C. cannot be resorted to in a cavalier or casual manner. The standard of sufficiency of evidence which may justify the summoning of an additional accused under Section 319 Cr.P.C. is on much higher footing than the sufficiency of evidence which may persuade the court to summon an accused under Section 204 of Cr.P.C. but it does not go to mean that the standard of sufficiency of evidence in order to justify the summoning of an additional accused under Section 319 Cr.P.C. should be of the same level which is required to be applied at the time of final adjudication on the point of guilt and innocence of an accused. The ratio and obiter as laid down by the Constitution Bench of Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92, does not appear to have been ignored in this case.
11. The aforesaid judgement in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge sheet is filed by police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C., Court has said that test are same as applicable for framing charge. In this regard, Hon'ble Supreme Court, in para 8 of the case of Partibha Vs. State of Haryana and Ors., Criminal Appeal No. 743 of 2017, reported in MANU/SC/0934/2017, (2017) 3 MLJ (Criminal) 174, after considering the dictum of constitution Bench of Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab and others, has expounded that:-
"8. The ambit and scope of exercise of powers under Section 319 Code of Criminal Procedure has been considered by the Constitution Bench of this Court in Hardeep Singh Vs. State of Punjab and Ors. MANU/SC/0025/2014: AIR 2014 SC 1400: (2014 3 SCC 92 : LNIND 2014 SC 20. It is useful to extract paras 89 and 90 of the judgement wherein following has been held:
89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgement by the court. Yet it is evidence and it is material on the basis whereof the Court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.
90. As held in Modh. Shafi and Harbhajan Singh, all that is required for the exercise of the power under Section 319 Code of Criminal Procedure is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The per-requisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straight-jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-in-Chief, it can exercise the power Under Section 319 Code of Criminal Procedure and can proceed against such other person(s). It is essential to note that the Section also uses the words 'such person could be tried' instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of Sub-section 4 of Section 319 Code of Criminal Procedure, the person would be entitled to a fresh trial where he would have all the rights including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of Examination-in-Chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing against such person to face trial. In fact, Examination-in-Chief untested by Cross Examination, undoubtedly, is an evidence."
12. There is no illegality or perversity in the impugned order i.e. summoning order dated 19.10.2020 passed by Additional District & Session Judge, Court No.4, Baghpat, in application under Section 319 Cr.P.C. arising out of Session Trial No.268 of 2019 in Case Crime No. 157 of 2018, Under Section 304 I.P.C. Police Station- Baraut, District Bagpat, (State Vs. Jitendra & Bittu), which is hereby affirmed and the instant revision is dismissed.
13. However, in case the revisionist surrenders and moves a bail application within a period of four weeks from today, the same shall be considered and decided as expeditiously as possible by the concerned Courts below, preferably within a month from the date of moving the said application, bearing in mind the various propositions of law and guidelines laid down by this Court as well as by the Hon'ble Apex Court from time to time through various pronouncements.
14. For a period of two months from today or till the disposal of bail application, whichever is earlier, no coercive action shall be taken against the applicant in the aforesaid case.
15. It is made clear that this order shall not be treated as an implied direction of this Court to grant bail to the revisionist. The bail prayer shall be considered by the Court concerned strictly in accordance with law.
Order Date :- 26.11.2020 Sachin