Allahabad High Court
Kshetrapal Singh And 2 Others vs State Of U.P. And Another on 27 January, 2020
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 79 Case :- APPLICATION U/S 482 No. - 32177 of 2018 Applicant :- Kshetrapal Singh And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Geetam Singh,Ram Kumar Counsel for Opposite Party :- G.A.,Paritosh Sukla Hon'ble Harsh Kumar,J.
List revised. No one present for opposite party no.2.
Heard Sri Ram Kumar, learned counsel for applicant, learned A.G.A. for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed for quashing the order dated 3.8.2018 passed by learned Judicial Magistrate, Khair, Aligarh in Case No.191 of 2012 (State Vs. Shripal) arising out of Case Crime No.101 of 2012, under sections 323, 452, 406, 504, 506 IPC P.S. Pisawa, District Aligarh pending in the Court of learned Judicial Magistrate, Aligarh.
Learned counsel for applicants contends that applicants have been wrongly summoned by Trial Court vide impugned order dated 3.8.2018 for trial together under sections 323, 452, 406, 504, 506 IPC; that the impugned order is wrong on facts and law; that opposite party no.2 lodged a false F.I.R. against applicants and Shripal and upon investigation, Investigating Officer finding no evidence against applicants, submitted charge sheet only against Shripal; that during trial against co-accused Shripal, statement of first informant/victim and her witness Veerpal were recorded and on application under section 319 Cr.P.C. for summoning applicants, learned Trial Court has passed impugned order summoning applicants for trial together with Shripal; that in the impugned order, learned Magistrate has not recorded his satisfaction about prima facie strong case against applicants, required their trial as required by Apex Court in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC; that the above view of Constitutional Bench of Apex Court has been followed by Apex Court in the case of Labhuji Amratji Thakor and others Vs. State of Gujarat and another, 2019 AIR (SC) 734; that the learned Magistrate has not recorded anywhere that prosecution has proved a prima facie case against applicants and that if the evidence remains unrebutted, it may be sufficient for holding the conviction of applicants; that applicants did not participate in the incident in question and if impugned order is allowed to stand, it will result in miscarriage of justice and will abuse of process of Court as well as unwarranted harassment of applicants for facing trial; that the impugned order is liable to be quashed and proposed proceedings against applicants are liable to be dropped.
Per contra, learned AGA supported the impugned order and contended that the victim in F.I.R. against named persons has made specific allegations, assigning specific active role to all the four accused-persons wherein applicant Tejvir Singh has been assigned with the role of monitoring by standing on the roof, after entering her house along with other co-accused-persons, while other co-accused applicant nos.1, 2 and Shripal have been assigned with specific weapon and specific role of beating and causing injuries; that the injury report of victim states as many as 07 injuries on her person, causing of which by three persons is quite possible with less chances of having been caused by single person; that applicants appear to have not been charge sheeted due to their influence during investigation; that the Magistrate has specifically held that there is sufficient ground for summoning applicants, which means that he has recorded its satisfaction for which no specific words are required; that applicants have actively participated in the incident in question and there is no illegality, irregularity, incorrectness or impropriety in the impugned order summoning them for trial together.
Before proceeding further, I feel it appropriate to reproduce section 319 Cr.P.C., as under:-
"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."
Upon hearing parties' counsel and perusal of record, I find that opposite party no.2 has lodged F.I.R. of the incident on 31.3.2012 after 36 hours of the incident. In F.I.R. four persons have been named, all of whom have been assigned with specific roles of committing offence after entering her house. In F.I.R. and statement of victim under section 161 Cr.P.C. as well as in her statement as P.W.1 specific role and specific weapon has been assigned to each of them and applicant Tejvir has been assigned with the role of monitoring the incident from roof. The averments of F.I.R. has been reiterated by victim in her statement under section 161 Cr.P.C. at Annexure No.3 and have been repeated on oath during trial as P.W.1. The statement of P.W.1 is duly corroborated by statement of P.W.2 and considering all the evidences on record, learned Magistrate has held that there is sufficient ground to summon applicants in these circumstances.
The Constitutional Bench of Apex Court in the case of Hardeep Singh (supra) has held that "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."
From the material on record it is crystal clear that upon applying the test as laid down by the Constitutional Bench in Hardeep Singh (supra) followed in the case of Labhuji Amratji Thakor (supra) "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".
The Apex Court has not laid down any specific wordings for recording such satisfaction. Section 319 Cr.P.C. provides if it appears from the evidence that any person not being accused has committed any offence for which he could be tried together with the accused, Court may proceed against such person for the offfence which he appears to have committed. The above provisions has been interpreted by Constitutional Bench of Apex Court in the manner that there must be strong prima facie case, so as to avoid summoning of innocent persons also in cursory manner. The prima facie case is to be decided upon facts of each case and I find that from the material on record there is more than prima facie case against applicants, justifying their summoning.
In view of discussions made above, I have come to the conclusion that there is no illegality, irregularity, incorrectness or impropriety in impugned order and learned counsel for applicants has failed to show any abuse of process of court or likelihood of miscarriage of justice for prevention of which the exercise of inherent powers by this Court is required. The application is devoid of merits and is liable to be dismissed.
The application u/s 482 Cr.P.C. is accordingly dismissed.
However, if the applicants appear before the court below and move application for bail, the same shall be disposed of expeditiously in accordance with law.
Order Date :- 27.1.2020 Tamang