Allahabad High Court
Chandrapal Singh And Another vs State Of U.P. And Another on 6 September, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:176194 Judgment reserved on 28.08.2023 Judgment delivered on 06.09.2023 Court No. - 50 Case :- CRIMINAL REVISION No. - 1072 of 2013 Revisionist :- Chandrapal Singh And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anoop Trivedi,Abhinav Gaur,Ashwani Kumar Yadav,Mohd. Rashid Siddiqui Counsel for Opposite Party :- Govt. Advocate connected with Case :- CRIMINAL REVISION No. - 1015 of 2013 Revisionist :- Rishipal Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anoop Trivedi,Abhinav Gaur,Birendra Singh Khokher,Mohd. Rashid Siddiqui Counsel for Opposite Party :- Govt. Advocate Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Anoop Trivedi, learned Sr. Advocate, appearing on behalf of revisionists and Sri Deepak Kapoor, learned A.G.A. for the State and perused the record.
2. Instant criminal revisions have been preferred against judgment and order dated 26.2.2013 passed by learned Additional Session Judge, Court No. 7, Meerut, in S.T. No. 878 of 2007 (State Vs. Alka Agarwal and others), whereby revisionists Chandrapal, Rishipal and Ram Gopal, have been summoned under Section 319 Cr.P.C. to face trial together with accused persons who were already facing trial in the case.
3. Briefly, the facts of the Case No. 878 of 2007, as unfolded in the First Information Report are that one Sunil Sharma i.e. the complainant filed an application dated 06.07.2004 before the Senior Superintendent of Police, Meerut with the averments that on dated 06.07.2004, at about 9:30 AM his brother Rajeev Sharma son of Sh. Vishnu Prakash Sharma was taken away forcibly and without any reason by the police of P.S. Sadar Bazar comprising of accused Alka Aggarwal SI, Bhoop Singh, Sukendra, Virendra Singh, Hoshiyar Singh and some other police personnel Vijay and Sushil, Dinesh at the instance of Sabhasad Anil Jain. These people after having conspired and with common intention committed the murder of the brother of the complainant at about 5:30 PM in the police station. In pursuance of the complaint, F.I.R. No. 261/2004, under Sections 302, 342, 120B IPC was registered at P.S. Sadar Bazaar, Meerut on dated 6.7.2004. The police swung into action, recorded the statements of the witnesses, prepared the site plan of the place of incident and conducted the investigation. Upon completion of investigation, charge sheet was filed against the accused Alka Aggarwal SI, Bhoop Singh, Sukendra, Virender Singh, Hoshiyar Singh, Vijay, Sushil, Dinesh and Anil Jain.
4. Learned counsel for the revisionists submitted that this is a case of no evidence against accused persons as accused revisionists were summoned by impugned order by trial court when the case was reserved for judgment with regard to co-accused persons and accused persons have been summoned by court below without narrating and discussing any evidence whatsoever appearing against revisionists during course of trial of co-accused persons. The trial of co-accused persons, who have already faced trial has resulted in their acquittal of charge u/s 302/149, 342/149, 120B, 308/149 and Section 201/149 IPC vide judgment dated 2.1.2023 by learned Additional Sessions Judge, in S.T. No. 878 of 2007 and principle of stare decisis is applicable to the facts of the present revisionists also as in said judgment of acquittal, learned trial court has given a clear finding that this was a case of suicidal and death of deceased was not homicidal. He next submitted that learned court below has also not stated in impugned order as to under which penal Section, present revisionists were being summoned to face trial. Learned trial court has not discussed in impugned order that there was a prima facie case against revisionists on the basis of evidence recorded during trial which could form a basis to summon the revisionists to face trial in exercise of powers under Section 319 Cr.P.C. Revisionists are neither named in the F.I.R. nor they were chargesheeted at any point of time. Even the revisionists appeared as witnesses during trial of co-accused persons and without any basis, they have been summoned as accused at the stage when the case was reserved for judmgnent.
5. From perusal of impugned order it appears that accused persons were summoned after citing relevant paragraphs of U.P. Police Regulations and on assumption that key of lock up at P.S. lies with Head Mohrrir and according to paragraph no. 55, of Police Regulations, the record keeper is present in the Office of Head Mohrrir, who is head clerk of the P.S.. It is found that S.H.O. Chandrapal was present in the P.S. from arrest to death of the deceased and Santari Ram Gopal locked him in the lock up and key thereof was kept with revisionist Rishipal who was working as Head Mohrrir. Even learned trial court was not certain at the time of passing of impugned order that whether death was homicidal or suicidal and stated that this is a matter of evidence whereas evidence in the case was already concluded when the case was fixed for judgment. Learned trial court summoned accused revisionists and the constable (santry) Ram Gopal mainly on the basis of fixing responsibility on the basis of paragraph no. 55, 62 and 157 of U.P. Police Regulation.
6. It is further submitted that learned trial court has summoned the revisionists in exercise of sue moto powers without considering fact that there was no cogent evidence against the revisionists apart from certain assumption made in impugned order by the learned trial court. This is admitted fact that revisionists were police officials at the time of incident and deceased was arrested by other accused persons and brought to P.S. in exercise of official duties. It is further submitted that at least learned trial court should have considered the requirement of seeking sanction under Section 197 Cr.P.C. which is required for prosecution of a public servant for anything done in discharge of his official duty. On the basis of above submission, learned Senior Counsel contended that impugned order is not sustainable under law and the parameters required under Section 319 Cr.P.C. were not followed in impugned order.
7. Learned counsel for the revisionists placed reliance on a judgment of Hon'ble Apex Court passed in the case of Hardeep Singh v. State of Punjab and Ors., in Crl. Appeal No. 1750 of 2008, on 10.1.2014 and Chapter 5 of U.P. Police Regulations which provides for arrest, custody and jail.
8. Per contra, learned A.G.A. submitted that there is no illegality, irregularity or perversity in impugned order passed by learned court below. Even after acquittal of co-accused persons, trial of accused revisionists can proceed in accordance with law. Impugned order is based on certain cogent reasons and the same is not liable to be set aside in present revision.
9. He has placed reliance on a judgment of this Court passed in the case of Neeraj Vs. State of U.P., in Crl. Revision No. 5232 of 2009, on 18.4.2019 and on a judgment of Madhya Pradesh High Court passed in the case of Ramesh Agarwal v. Mukesh Jain and Anr.), in M.Cr.C.No. 13702 of 2015, on 7.2.2017.
10. Learned A.G.A. has further placed reliance on a judgment of Hon'ble Apex Court passed in Sukhpal Singh Khaira vs. The State of Punjab, in Crl. Appeal No. 885 of 2019, on 5.12.2022, wherein a Constitution Bench of Apex Court laid down following guidelines which competent court must follow while exercising powers under Section 319 Cr.PC.
"(i) If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.
(ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
(iii) If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
(iv) If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.
(v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
(vi) If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
(viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing.
(x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.
(xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."
11. In Hardeep Singh Vs. State of Punjab, (2014) (3) Supreme Court Cases Page 92, Hon'ble Apex Court held that power under Section 319 Cr.P.C. has to be exercised before pronouncement of judgment. It can only be exercised during pendency of trial which is a stage prior to the date of pronouncement of a judgment. Section 319 Cr.P.C. provides that power can be exercised only during trial and it follows that once trial is concluded and judgment is pronounced, court cannot exercise powers under Section 319 Cr.P.C.. In paragraph no. 98 of said judgment it is held that 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. Paragraph no. 99 of said judgment provides as follows:-
"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 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."
12. From perusal of record it appears that in post-mortem report of the deceased, cause of death was mentioned as asphyxia as a result of ante-mortem hanging. Trial of accused persons in fact of present offence commenced on framing of charge. Prosecution evidence was completed on 11.11.2009. Statement of accused persons was recorded under Section 313 Cr.P.C. on 10.12.2009. Defense evidence was completed on 30.3.2010 and thereafter a date was fixed for final argument on 6.4.2010. On 1.2.2013 arguments from both sides were heard by learned trial court and court fixed the date 16.2.2013 for delivery of judgment, however, on 16.2.2013, learned trial court deferred the delivery of judgment to 26.2.2013 on account of fact that parties had filed various judmgnets which were required to be perused by the court below and on 26.2.2013, learned trial court at the stage of delivery of judgment in matter of accused persons who were facing trial, exercised power under Section 319 Cr.P.C., suo moto, with observation that on perusal of record it appears that matter relates to death of deceased Raju in police lock up, P.S. Sadar Bazar, Meerut. According to paragraph no. 157 of U.P. Police Regulation, S.H.O. of P.S. is under obligation to ensure due care and alertness regarding the prisoners lodging in police lock up. Paragraph no. 62 of U.P. Police Regulation provides that sentry constable will be under obligation to ensure security of detained prisoner and the key of police lock up lies in custody of head mohrrir of P.S. All these three persons are responsible for security of a suspect in hawalat (lock up).
13. According to prosecution version, F.I.R. was lodged against deceased Raju by accused Sushil Sharma in present case vide crime no. 261 of 2004, under Section 380 IPC on 6.7.2004 with the delay of 56 days. Smt. Alka Agarwal was entrusted investigation of said theft case. She went to arrest the accused Raju on 6.7.2004, she took the arrested accused at P.S. and lodged him in lock up at 18:05 hours with no other inmate on that day. Sentry Constable Ram Gopal who was on guard duty informed at 18:15 hours that deceased Raju hanged himself in the toilet of the lock up with the help of a blanket. He was immediately taken to hospital where he was declared dead. The F.I.R. was lodged at the instance of informant Sushil Sharma, brother of the deceased, on same day at 21:30 hours against 9 named accused persons that on 6.7.2004 S.I. Alka Agarwal and others forcefully lifted his brother Raju from home and killed him at P.S. at around 5:30 pm. Out of nine named accused persons, eight were put on trial and they were acquitted of all charges vide judgment and order dated 2.1.2023 passed by learned Additional Sessions Judge, Court No. 6, Meerut as one named accused Dinesh died during trial. Revisionists are not named in the F.I.R.. No application was moved by either side or the informant to summon the present revisionists to face trial together with accused persons who were charge sheeted. Criminal liability appears to have been fastened against present revisionists and impugned order on the basis of various paragraphs of U.P. Police Regulation, wherein responsibility of safe lodging and security of a suspect detained in police lock up is fastened on sentry police constable, Head Mohrir and over all responsibility on S.H.O. concerned. Learned trial court after considering the oral evidence adduced during trial which comprises 13 witnesses and documents exhibited during trial, gave categorical finding that doctor, who conducted post-mortem on dead body of the deceased, has opined that cause of death of deceased was suicidal hanging. Both the witnesses, who conducted post-mortem, did not find any other injury sustained by the deceased. There is no evidence on record thereby constraining this Court to ignore well founded testimony of witnesses and to reach a different conclusion. None of the prosecution witnesses have claimed that death of deceased Raju was outcome of homicidal act of forceful hanging by the accused. The prosecution has remained unsuccessful in proving that the accused persons while acting in furtherance of their common object caused death of deceased Raju, intentionally or knowingly, at the time and place as alleged and thereby committed his murder. There is an apparent absence of evidence regarding mens rea on the part of any of the accused in this regard and, therefore, accused cannot be held guilty for abating suicide by the deceased Raju. Abatement involves a mental process of instigating a person or intentionally adding a person in doing of a thing. Even the charge under aforesaid sections have not been found to be proved against accused persons and they are acquitted of all charges levelled against them.
14. While summoning the present revisionists in exercise of powers under Section 319 Cr.P.C., suo moto, learned trial court has observed that whether the death of deceased Raju was homicidal or he committed suicide is a matter of evidence but presently question on trial of chargesheeted accused persons, learned trial court has given verdict of acquittal and a categorical finding that death of deceased Raju was suicidal and not homicidal. If this is a case of suicide as held by learned trial court while concluding trial of chargesheeted accused persons, there is no question that the present revisionists being summoned to face trial at the stage of conclusion of trial of accused persons, as there is no evidence against them regarding abetment of deceased to commit suicide. The revisionist Rishipal Singh was examined as PW-6 and S.H.O. Chandrapal Singh was examined as PW-7 during trial of chargesheeted accused persons, as prosecution witnesses, who were subsequently summoned as accused along with Constable Ram Gopal by learned trial court at the stage of judgment. If there is no accusation against present revisionists in evidence of PW-1, PW-2, PW-3 and PW-4, who were examined as main witnesses of fact in respect of trial of chargesheeted accused persons, therefore, apart from legal responsibilities of revisionists provided in various paragraphs of U.P. Police Regulations, there was no evidence before the court below to summon the present revisionists in exercise of powers under Section 319 Cr.P.C. as named and chargesheeted accused persons have been acquitted by learned trial court on same set of facts on which present revisionists have been summoned under Section 319 Cr.P.C. for putting them on trial afresh. Therefore, no useful purpose of law is going to be served to put the revisionists on trial in the light of categorical finding of learned trial court in judgment dated 2.1.2023 resulting in acquittal of named and chargesheeted accused persons.
15. Thus, on the basis of foregoing discussion and judicial authorities cited as above, this Court is of the opinion that no prima facie case was established from the evidence led before the court below while exercising powers under Section 319 Cr.P.C. in summoning the accused persons under Section 319 Cr.P.C. which was in the nature of more than prima facie case as exercised at the time of framing of a charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted would lead to conviction. In the absence of such satisfaction the impugned order passed by learned court below exercising powers under Section 319 Cr.P.C. in respect of present revisionists cannot be sustained. The impugned order is not sustainable in the eye of law and is liable to be set aside.
Accordingly, impugned order passed by learned trial court summoning the revisionists to face trial in S.T. No. 878 of 2007 is hereby set aside.
16. Revision stands allowed.
Order Date :- 06.09.2023 A.P. Pandey