Allahabad High Court
Smt. Madhu And 3 Others vs State Of U.P. And Another on 27 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:74684 Court No. - 77 Case :- CRIMINAL REVISION No. - 4683 of 2023 Revisionist :- Smt. Madhu And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Radhey Shyam Shukla,Vipul Shukla Counsel for Opposite Party :- G.A.,Gaurav Kakkar and Case :- CRIMINAL REVISION No. - 4738 of 2023 Revisionist :- Arjun Alias Savindra Kumar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajendra Prasad Mishra,Satyam Mishra,Surendra Kumar Counsel for Opposite Party :- G.A.,Gaurav Kakkar Hon'ble Rajeev Misra,J.
1. Heard Mr. Radhey Shyam Shukla, the learned counsel for revisionists, the learned A.G.A. for State-opposite party-1 and Mr. Raghvendra Prakash Advocate holding brief of Mr. Gaurav Kakkar, the learned counsel representing first informant/opposite party-2 in Criminal Revision No. 4683 of 2023 ( Smt. Madhu and 3 others Vs. State of U.P. and another). I have also heard Mr. Rajendra Prasad Mishra, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Raghvendra Prakash Advocate holding brief of Mr. Gaurav Kakkar, the learned counsel representing first informant/opposite party-2 in Criminal Revision No. 4738 of 2023 ( Arjun @ Savindra Kumar Vs. State of U.P. and another)
2. Perused the record.
3. Both the criminal revisions have been filed challenging the common order dated 31.07.2023, passed by Additional District and Sessions, Court No.4, Bulandshahar in Sessions Trial No. 1012 of 2020 (State of U.P. Vs. Yashpal) arising out of Case Crime No. 105 of 2020, under Section 147, 148, 149, 302 I.P.C. Police Station Gulawathi District-Bulandshahar whereby court below has allowed the application dated 13.10.2022 (paper no. 26B) filed by the prosecution under Section 319 Cr.P.C.Consequently, the revisionists, who are prospective accused (named but not charge sheeted) have been summoned by court below under Sections 147, 148, 149, 302 I.P.C. to face trial in aforementioned Sessions Trial.
4. Since both the criminal revisions arise out of a common order therefore they are being decided together by a common order.
5. Record shows that in respect of an incident, which is alleged to have occurred on 23.02.2020, a prompt F.I.R. dated 23.02.2020 was lodged by first informant Mohit Kumar and was registered as Case Crime No. 105 of 2020, under Section 147, 148, 149, 302 I.P.C. Police Station Gulawathi District-Bulandshahar. In the aforesaid F.I.R., six persons namely Yashpal, Madhu, Deepak @ Deepansu @ Lala, Arjul, Lakhiram, Arjun have been nominated as named accused whereas two unknown persons have also been arraigned as accused..
6. The gravamen of the allegations made in the F.I.R. is to the effect that named accused, who formed as unlawfull assembly with a common object assaulted the mother of the first informant on account of which mother of first informant died. The F.I.R. further records that the said occurrence has been witnessed by Jeet Singh, Satveer and Kushal Pal.
7. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned crime number in terms of Chapter XII Cr. P. C. He completed the preliminary formalities i.e. visiting the place of occurrence, recovering the dead body, inqeust of the body of deceased, postmortem of the body of deceased and preparation of the site plan. After having completed the aforesaid preliminaries the Investigating Officer proceeded to record the statements of first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that complicity of only one of the named accused namely Yashpal is established in the crime in question. Accordingly, he submitted the police report dated 17.05.2020 in terms of Section 173 (2) Cr. P. C., whereby named accused Yashpal alone has been charge sheeted under Section302 IPC where the other named accused have been exculpated.
8. After submission of the police report (charge sheet) as noted above, 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 triable exclusively by the Court of Sessions, consequently, the concerned Magistrate committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 1012 of 2020 (State of U.P. Vs. Yashpal), under Section 302 I.P.C. Police Station Gulawathi District-Bulandshahar came to be registered which is now said to be pending in Court of Additional District and Sessions Judge, Court No.4, Bulandshahar.
9. Concerned Sessions Judge framed charges against charge sheeted accuused, who denied the same and pleaded innocence. Resultantly, the trial procedure commenced.
10. Prosecution in discharge of it's burden to bring home the charges so framed adduced P.W.1-Mohit, P.W.-2 Satveer, PW-3 Kushal Pal and P.W.-4, constable Vijay Kumar up to this stage.
11. After the statement-in-chief and examination-in-chief of the aforesaid witnesses were recorded, prosecution filed an application dated 13.10.2022 under Section 319 Cr. P. C. (paper No. 26B) alleging therein that since the complicity of other named but not charge sheeted accused is also established in the crime in question as per deposition of aforementioned prosecution witnesses therefore, they be also summoned to face trial in aforesaid Sessions Trial.
12. It appears that no objection to the aforesaid application was filed by above charge sheeted accused.
13. Court below examined the veracity of the allegations made in the application under Section 319 Cr.P.C. referred to above in the light of the depositions of the prosecution witnesses examined upto this stage. Having undertaken the aforesaid exercise, court below came to the conclusion that since complicity of prospective accused i.e. revisionist herein has also emerged in the crime in question therefore they are liable to be summoned to face trial. On the above premise, court below allowed the application under Section 319 Cr.P.C. filed by prosecution vide order dated 31.07.2023.
14. Thus feeling aggrieved by the above order dated 31.07.2023, the revisionists who have been summoned by court below to face trial in aforementioned sessions trial, have now approached this Court by means of present criminal revisions.
15. Learned counsel for revisionists contend that the order impugned in present criminal revisions is manifestly illegal and in excess of jurisdiction. Consequently, same is liable to be set aside by this Court. In support of the said submission, it is contended by the learned counsel for revisionists that admittedly all the revisionists were nominated as named accused in the F.I.R. However, during course of investigation, Investigating Officer did not find any such material against revisionists so as to establish their complicity in the crime in question. Consequently, revisionists who are named accused, were exculpated by the Investigating Officer in the police report dated 17.05.2020.
16. With reference to above, it is urged by the learned counsel for revisionists that no protest petition was filed by the first informant against the aforementioned police report. Once prosecution itself did not file any protest petition against the police report dated 17.05.2020 under Section 173 (2) Cr.P.C., therefore no application under Section 319 Cr.P.C. could have been filed by the prosecution subsequently for summoning the prospective accused i.e. revisionists herein. It is thus urged that the prosecution is estopped from filing the application under Section 319 Cr.P.C. by it's conduct. Court below has completely ignored the aforesaid while passing the impugned order, which has vitiated the same. As such the order impugned cannot be sustained in law and fact and hence liable to be set aside by this Court.
17. Learned counsel for revisionist in continuation of their challenge to the order impugned submit that during course of investigation, no such material emerged so as to establish any effective role on the part of the prospective accused i.e. revisionists herein in the crime in question. It is then contended that what has emerged in the deposition of P.W.1, P.W.-2, P.W.-3 and P.W.-4 it is mere complicity of the prospective accused i.e. revisionists herein in the crime in question. Referring to the judgement of Apex Court in Brijendra Singh and Others Vs. State of Rajasthan (2017) 7 SCC 709. the learned counsel for revisionists contends that even though the law with regard to summoning of a prospective accused now stands crystalized by the Five Judges Bench judgement of Supreme Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC, 92 yet the Court made a departure in the said judgement by observing as follows:
a. No doubt a prospective accused can be summoned simply on the basis of statement in chief of one prosecution witness. b. The Court must draw a parallel in between the deposition of the prosecution witnesses examined upto this stage and previous statement under Section 161 Cr.P.C. to find out as to whether something new has emerged in the deposition of the prosecution witnesses. c. Whether on the basis of evidence that has emerged during the course of trial an inference of guilt can be inferred against prospective accused d. Court must consider the plethora of evidence that has emerged during the course of investigation, which is relevant material to decide the application under Section 319 Cr.P.C.
18. On the above conspectus, it is thus urged that when the aforesaid test is applied to the facts of the present case then court below could not record the same degree of satisfaction which is required to be recorded by court while allowing an application under Section 319 Cr.P.C. as per mandate of law contained in paragraph 106 of the Five Judges Bench Judgement of Supreme Court in Hardeep Singh (Supra). For ready reference paragraph 106 of the judgement is reproduced 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.
19. It is thus urged that since there was no such material before court below on the basis of which the degree of satisfaction as is required to be recorded but could not be recorded therefore the test laid down by apex Court in aforesaid 5 Judges Bench Judgement, therefore the court below has not exercised it's jurisdiction in accordance with law but arbitrary.
20. The learned counsel for revisionists has then referred to the judgement of Apex Court in S. Mohammed Ispahani Vs. Yogendra Chandak and others (2017) 16 SCC 226. With reference to above, it is urged that even though the parameters with regard to exercise of jurisdiction under Section 319 Cr.PC. has been narrowed down by Apex Court in Brijendra Singh and others (supra) yet court has again made a departure from the same but in favour of prospective accused by observing that (a) the power under Section 319 Cr.P.C. is an extra ordinary power and should be exercised sparingly (b) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual or caviler fashion.(c) A prospective accused can be summoned by court not on the basis of his mere complicity in the crime in question but only when strong and cogent evidence has emerged against him. In the submission of the learned counsel for revisionists when the aforesaid test is applied to the facts and circumstances of the case it is explicitly clear that as per the depositions of the prosecution witnesses examined upto this stage it is only the mere complicity of the revisionists which has emerged in the crime in question. Therefore by reason of above, the impugned summoning order passed by court below against revisionists is in truth of ratio laid down by Apex Court in S. Mohammed Ispahani (Supra). Consequently, the order impugned is unsustainable in law and fact and therefore the same is liable to be set aside by this court.
21. It is lastly contended that as per the statement of the Doctor, who had conducted autopsy of the body of the deceased, copy of which is on record at page 60 of the paper book and also the post mortem report of the body of the deceased, copy of which is on record at page 43 of the paper book it is explicitly clear that the death of the deceased is an accidental death. It is thus urged that as per the opinion of the Autopsy Surgeon the deceased has died on account of crush injuries. With reference to above, what is sought to be contended before this Court is that the deceased had died on account of accidental death and not due to an act of assault as alleged by the prosecution in the F.I.R. On the above premise, the learned counsel for revisionists contends that since the medical evidence does not support the ocular version of the occurrence, therefore summoning of the revisionists in the trial pending before court below cannot be sustained. On the above conspectus, they therefore conclude that order impugned is liable to be set aside by this Court.
22. Per contra, the learned A.G.A. for State and the learned counsel for first informant have vehemently opposed the present criminal revisions. They submit that the order impugned in present criminal revisions is perfectly just and legal and therefore, not liable to be interfered with. Court below has summoned the prospective accused i.e. revisionists herein only after the statement of the three prosecution witnesses of fact and one formal witness have been recorded. The prosecution witnesses who have deposed before court below upto this stage have also been examined in chief. As such the depositions of the aforesaid witnesses i.e. P.W.-1, P.W.-2, P.W.-3 and P.W.-4 is legal evidence and therefore no illegality has been committed by court below in placing reliance upon same for passing the order impugned.
23. It is next contended that the F.I.R. was also lodged under Section 149 I.P.C. also. All the prosecution witnesses of fact who have been examined upto this stage i.e. P.W.-1, P.W.-2, P.W.-3 and P.W.-4 have been consistent in their deposition before court below that all the named accused were present at the time and place of occurrence. On the above premise it is thus urged by the learned A.G.A. that the issue as to whether any active or passive role was played by the prospective accused i.e. the revisionists is no longer a relevant issue to infer the complicity or the innocence of the revisionists (prospective accused) in the crime in question. Once the presence of prospective accused is clearly established at the time and place of occurrence as per deposition of P.W.-1, P.W.-2, P.W.-3 and P.W.-4, therefore court below has not committed any illegality in summoning the prospective accused i.e. revisionists. At this stage Court below could not draw a dichotomy with regard to active and passive role played by prospective accused in the crime in question. Since the F.I.R. was under Section 149 I.P.C. and the prospective accused i.e. revisionists have been summoned by court below also under Section 149 I.P.C. therefore inference drawn by court below since as per deposition of aforesaid prosecution witnesses, the presence of the prospective accused is established at the time and place of occurrence, hence no illegality has been committed by court below in passing the order impugned. On the above premise, it is thus urged that in view of above, the tests laid down by Apex Court in Brijendra Singh and Others (supra) and S. Mohammed Ispahani (Supra) are applicable to the facts and circumstances of the case. Since the complicity of the revisionists in the crime in question is concerned, it can prima facie be said that since there is common object with the prospective accused i.e. revisionists therefore the mandate of law as occurring in paragraph 106 of the judgement in Hardeep Singh (supra) stands completed. In short, the satisfaction recorded by court below for summoning the prospective accused is similar to the one required in law. On the above conspectus, the learned A.GA. and the learned counsel representing opposite party-2 contend that no good ground for interference by this Court is made out. As such, the present criminal revisions are liable to be dismissed.
24. Having heard the learned counsel for revisionist, the learned A.G.A.for State, the learned counsel representing opposite party-2/first informant and upon perusal of record, this Court finds that the primary question to be considered by this Court in present criminal revisions is- (A) What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As an ancillary issue, the Court will also have to consider;- (B) Whether the order impugned passed by Court below is in consonance with the parameters laid down by Court for exercise of jurisdiction in terms of Section 319 Cr.P.C.
25. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution 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) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xix) 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.
(xx). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxi). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (5 Judges), Paragraphs 7, 37, 38 and 41.
(xxii). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxiii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxiv). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxv) Yashonandan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxvi) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxvii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174
26. With the aid of above, this Court now proceeds to examine the veracity of impugned order dated 31.07.2023, passed by Additional District and Sessions Judge, Court No.4, Bulandshahar in Sessions Trial No. 1012 of 2020 (State of U.P. Vs. Yashpal) arising out of Case Crime No. 105 of 2020, under Section 147, 148, 149, 302 I.P.C. Police Station Gulawathi District-Bulandshahar, whereby revisionists, who are prospective accused, have been summoned under Sections 147, 148, 149, 302 IPC by Court below in exercise of jurisdiction under Section 319 Cr.P.C. to face trial in above-mentioned Sessions Trial.
27. 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, by this Court.
28. 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's Judgment in Dharam Pal (Supra).
29. 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).
30. Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
31. The nature of satisfaction required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph-106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of statement-in-chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses 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. For ready reference, paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra) is reproduced hereinunder:-
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.
32. A prospective accused cannot be summoned under Section 319 Cr.P.C. to face trial merely on the basis of his complicity in the crime in question but only when strong and cogent evidence has emerged against him vide S. Mohammed Ispahani (supra).
33. The power under Section 319 Cr.P.C. is an extra ordinary power which should be exercised sparingly. Courts should exercise their jurisdiction not in a "casual and cavalier" fashion but diligently vide S. Mohammed Ispahani (Supra).
34. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
35. The trial Court is competent to exercise it's power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in-chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation, which suggests otherwise, the trial Court is at least duty bound to look into the same, while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record.
36. The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C (vide paragraph 15 of judgement in Brijendra Singhs's Case (Supra)).
37. 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).
38. 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 parameter regarding the exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
39. 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.
40. 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 319CrPC 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.
41. Even if, no protest protest petition was filed by the first informant against the police report submitted in terms of Section 173(2) Cr.P.C. i.e. charge sheet for summoning the non charge sheeted accused yet a prospective accused can be summoned by Court on an application under Section 319 Cr.P.C. and there will be no estoppel against the same vide Rajesh and Others (Supra).
42. 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).
43. 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 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.
44. Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1, Mohit and PW-2, Satyaveer, PW-3 Kushal Pal and PW-4 Constable Vijay Kumar, the revisionists 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 manner.?"
45. Having heard the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing first informant, opposite party-2 in both the revision and upon perusal of record, this Court finds that the revisionists have been summoned by Court below only after the depositions of PW-1, PW-2, PW-3 and PW-4 were recorded. Court below has thus not committed any illegality in deciding the application under Section 319 Cr.P.C. filed by the prosecution for summoning the prospective accused i.e. the revisionists inasmuch as, in view of the law laid down by the Five Judges Bench judgment in Hardeep Singh (Supra), a prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness.
46. The Court further finds that the tests laid down by the Apex Court for summoning a prospective accused in the Two Judges Bench judgment in Brijendra Singh (Supra) and S. Mohammad Ishpahani (Supra) are not attracted as subsequently, in the case of Sandeep Kumar (Supra), the Court has held that in case, a person is a member of an unlawful assembly and the ingredients of Section 149 are satisfied, 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. Consequently, the plea raised on behalf of the prospective accused i.e. the revisionists that the death of deceased is on account of an accidental death inasmuch as, he had sustained crushed injuries is a material, which is alien in nature so far as the complicity of the accused for an offence under Section 149 IPC is concerned and further relates to the disputed defence of the revisionists, which cannot be considered at this stage. Since the ingredients of Section 149 Cr.P.C. qua the present revisionist is fully satisfied then no evidence regarding the role of the prospective accused (active role or passive role) is not required to be looked into at this stage. Consequently, Court below has not committed a jurisdictional error in passing the order impugned nor has it exercised it's jurisdiction with such material irregularity so as to vitiate the order impugned and warrant interference by this Court.
47. In view of the discussion made above, the present criminal revisions fail and are liable to be dismissed.
48. They are, accordingly, dismissed.
49. However, considering the facts and circumstances of the case, the cost is made easy.
50. After the aforementioned judgement was dictated, the learned counsel for revisionists submit that since the charge sheeted accused has already been enlarged on bail, Court below be directed to decide the bail applications of the revisionists on the same day.
51. Considering the above and also the fact that Smt. Madhu, one of revisionists is a lady, therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C. and also the fact that Deepak @ Deepanshu is a student of B.Tech. Course, coupled with fact that evidence which is sought to be relied upon by the prosecution against accused stands crystallized, therefore, prima-facie, there is no necessity to maintain the custodial arrest of prospective accused i.e. the revisionists herein during the pendency of trial. Furthermore, in view of law laid down by Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 6), court below is directed to decide the bail application of revisionists on the same day in the light of above.
Order Date :- 27.4.2024 YK