Allahabad High Court
Aman Tauseef vs State Of U.P.And Another on 1 August, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. -80 Case :- CRIMINAL REVISION No. - 3293 of 2021 Revisionist :- Aman Tauseef Opposite Party :- State Of U.P.And Another Counsel for Revisionist :- Amir Khan Counsel for Opposite Party :- G.A.,Zafar Abbas Hon'ble Rajeev Misra,J.
1. The Court after hearing Mr. Amir Khan, the learned counsel for revisionist, the learned A.G.A. for State and Mr. Zafar Abbas, the learned counsel for first informant/opposite party-2 reserved the judgement on 6.1.2022. However, the judgement could not be delivered within reasonable period. Accordingly, the matter was posted for further hearing on 29.7.2022 vide order dated 25.7.2022. Accordingly the matter was heard on 29.7.2022 on which date the learned counsel for revisionist did not appear before Court. Only the learned A.G.A. and the learned counsel for opposite party-2 were heard.
2. This criminal revision has been filed challenging order dated 12.11.2021, passed by Additional Sessions Judge, Court No. 1, District Moradabad in Sessions Trial No. 1143 of 2020 (State Vs. Danish @ lala and Others) in Case Crime No. 151 of 2019, under sections 307, 506, 147, 148 IPC, Police Station- Galshadid, District- Moradabad, whereby Court below has allowed the application (Paper No.32 B) filed by first informant/opposite party-2 under section 319 Cr.P.C. and summoned the applicant to face trial in aforementioned criminal case.
3. Record shows that in respect of an incident which is alleged to have occurred on 6.5.2019, a prompt F.I.R dated 6.5.2019 was lodged by first informant-opposite party-2 Raees @ Bholu and was registered as Case Crime No. 151 of 2019, under sections 307, 506, 147, 148 IPC, Police Station- Galshadid, District- Moradabad. In the aforesaid F.I.R, six persons namely, Danish @ Lala, Najim @ Raju, Sajid @ Kalua, Shahid, Maim and Aman Tausif have been nominated as named accused.
4. The gravamen of the allegations made in F.I.R is to the effect that named accused namely, Danish @ Lala, Najim @ Raju, Sajid @ Kalua and Aman Tausif with an intention to cause murder of nephews of first informant, fired repeated shots with their country made guns on account of which nephews of first informant sustained fire arm injuries.
5. After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. The injured Junaid and Jafar were medically examined on 6.5.2019. As per the Medico Legal Examination Report, injured Junaid sustained following injuries:
"Injury No.1 wound of entry measuring 1 cm x 1 cm round in shape present on tip of left shoulder joint fresh bleeding present. Burning tattooing present."
6. Subsequently, Supplementary Medico Legal Report of injured Junaid was prepared and is reproduced herein under:
Pt namely Mohd. Junaid S/0 Mr. Saeed, aged about 25 years male R/o Asalatpura, Begam Wali Masjid, Moradabad B/B Hameed (friend) Address same was admitted at cosmos Hospital 6.5.2019 at 8:15 pm CA/H/O Gun shot injury, at left shoulder at about 5:00 pm on 6.5.2019 MI-not traceable
-A/C t X-ray Chest done to Cosmos Hospital on 6.5.2019 by Dr. Ranjan Stimulates communicated fracture of lateral on 3rd of left clavicle with no other obvious abnormality.
-A/C X-ray left shoulder done to cosmos hospital on 6.5.2019 by Dr. Ranjan communicated fracture of lateral on one-third of left clavicle.
-A/C to radiologist of right shoulder done to Cosmos Hospital by Dr. Ranjan show no other abnormality.
-A/C Pt. Admitted at Cosmos Hospital under treatment of orthopaedic surgeon Dr. Anurag Agrawal (M.S) and was operated on 7.5.2019 by Orthopedic surgeon Removal of metallic plate (round and solid piece) from back of right shoulder. Surgical toileting and debridement of wound over left shoulder, anterior Part C communicated fracture left clavicle wound stitched and dressed. Opinion: A/C above mentioned reports and notes, injuries is grievous in nature.
7. Similarly the injured Jafar was also medically examined. As per his Medico Legal Examination Report dated 6.5.2019, he sustained following injuries:
"Injury No.1 punctured wound measuring 1 cm x 1 cm chest line deep oval in shape rough margin present on mid of front of chest which is 10 cm from Rt Nipple."
8. A Supplementary Medico Legal Examination Report of Jafar was also prepared. Same is also reproduced herein under:
Pt. name Jafar saeed S/O Shahid Ahmad aged about 30 years R/O Begum Wali P.S. Galshaheed, District Moradabad Operation notes Abdomen cleared and draped well. Abdomen opened bylarge mid line incision. Large amount of blood present. All sucked out and abdomen viscera inspected. There was large laceration L lobe of Liver. After that bullet entered in limdus of stomach going through and through. Then entered in L chest rupturing diapharagm. Blood inside the chest sucked out Bullet injuring lung and was reaching L chest wall in subcutaneous place. Repair of stomach done on botyh sides. Diaphragm also repaired. Lcd done to remove blood in future collection. Haemastosis achieved. Pertioneal toilet done drains placed in abdomen. Debary demand of entry wound over epgastrum done.
Bullet removed from separate incison from back opinion.
Injury caused by fire arm are grievous in nature and dangerous to life.
9. During course of investigation, Investigating Officer examined Raees (first informant), Jafar (injured) Junaid (injured), Mujahid, Shahzad, Raees (all independent witness) and others under section 161 Cr.P.C.. Investigating Officer, on the basis of above as well as other material collected by him during course of investigation came to the conclusion that complicity of only two of the named accused namely, Danish and Nazim is established in the crime in question. He, therefore opined to submit a charge sheet. Investigating Officer, accordingly, submitted the charge sheet dated 24.6.2019, whereby two of the named accused namely, Danish and Nazim have been charge sheeted under sections 367, 506 IPC whereas rest of the named accused have been exculpated.
10. After submission of aforementioned charge sheet, cognizance was taken upon same by Court concerned. As offence complained of is triable by Court of Sessions, accordingly concerned Magistrate committed the case to the Court of Sessions. Resultantly, Sessions Trial No. Case Crime No. 151 of 2019, under sections 307, 506, 147, 148 IPC, Police Station- Galshadid, District- Moradabad came to be registered.
11. Subsequent to above, trial commenced. Concerned Sessions Judge framed separate and distinct charges against charge sheeted accused. The charges so framed were denied by charge sheeted accused. Resultantly, burden fell upon prosecution to bring home the charges so framed by leading evidence.
12. In discharge of aforesaid burden, prosecution adduced P.W.1 Raees (first informant), P.W.2-Jafar (injured) and P.W.-3 Junaid (injured). After the statements-in-chief of aforesaid witnesses were recorded, first informant-opposite party-2 Raees filed an application dated 29.9.2021, under section 319 Cr.P.C., praying therein that one of the named accused but not charge sheeted namely, Aman Tauseef be also summoned to face trial in aforementioned Sessions Trial, as his complicity in the crime in question is established as per the testimonies of aforesaid witnesses. This application came to be registered as Paper No. 32 B. No objection was filed by charge sheeted accused against the aforesaid application. Ultimately, Court below by means of order dated 12.11.2021 allowed the aforesaid application and simultaneously summoned the revisionist to face the trial in aforementioned sessions trial.
13. Thus feeling aggrieved by aforesaid, revisionist has now approached this Court by means of present criminal revision.
14. Mr. Amir Khan, the learned counsel for revisionist contends that order impugned in present criminal revision is not only illegal but also without jurisdiction. It is next contended that applicant was a named accused in F.I.R. dated 6.5.2019. However, during the course of investigation complicity of applicant was not found to be established in the crime in question. Consequently, applicant was exculpated by the Investigating Officer in the charge-sheet dated 24.6.2019, submitted in concerned case crime number. In continuation of his challenge to the impugned order dated 12.11.2021, learned counsel for revisionist further contends that court below should have deferred disposal of application under Section 319 Cr.P.C. filed by first informant/opposite party-2 till the statement of Investigating Officer, who had investigated above-mentioned case crime number, was not recorded. According to learned counsel for revisionist, testimony of Investigating Officer would be relevant as he alone could place the facts and circumstances on the basis of which, revisionist was exculpated in the charge-sheet dated 24.6.2019. It is thus urged that in the absence of testimony of Investigating Officer, material on the basis of which, revisionist was exculpated in concerned case crime number could not be placed before court below. Court below has thus pre-empted the disposal of application under section 319 Cr.P.C. filed by first informant/opposite party-2. As such serious prejudice has been caused to revisionist, who has now been summoned to face trial in above-mentioned criminal case simply on the basis of the testimonies of P.W.1- Raees, P.W.2- Jafar and P.W.3 Junai. In the absence of testimony of Investigating Officer, the credibility of testimonies of P.W.1, P.W.2 and P.W.3 could not be examined. Learned counsel for revisionist also contends that no protest petition was filed by first informant/opposite party-2 to the charge sheet dated 24.6.2019. No explanation has been offered in the application under section 319 Cr.P.C. regarding aforesaid. It is thus contended that application under section 319 Cr.P.C. has been filed on account of an ulterior motive only to harass the revisionist. It is further contended that testimonies of P.W.1- Raees, P.W.2- Jafar and P.W.3 Junaid do not make out a cast iron case for summoning the revisionist to face trial. No finding has been recorded by court below as to how the testimonies of P.W.1, P.W.2 and P.W.3 satisfy the test laid down by Constitution Bench in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92. No exercise was undertaken by Court below to weigh the material that was gathered by Investigating Officer during course of investigation and the testimonies of the prosecution of witnesses so examined to find out as to whether something more than mere complicity of revisionsit is established in the crime in question, which exercise the Court was duty bound to undertake as per the mandate of Apex Court in Brijendra Singh and Others Vs. State of Rajasthan (2017) 7 SCC 706. It is thus sought to be urged that court below has failed to exercise it's jurisdiction "diligently". Court below has summoned applicant in a "casual and cavalier manner" even when there is no "strong and cogent evidence" against revisionist. On the aforesaid premise, it is thus urged that impugned order passed by court below cannot be sustained and is therefore liable to be quashed by this Court.
15. Per contra, the learned A.G.A. has opposed this criminal revision. Learned A.G.A. contends that statement-in-chief of P.W.1- Raees is alone relevant for deciding the application under Section 319 Cr.P.C. as he is a prosecution witness of fact. However, in the present case, there are testimonies of P.W.2. Jafar and P.W.3 Junaid also. Their testimonies fall within the realm of legal evidence, as per the Constitution Bench judgement of Apex Court in Hardeep Singh (Supra). Consequently, no illegality has been committed by court below in placing reliance upon same for deciding application under Section 319 Cr.P.C. Police report submitted by Investigating Officer is not conclusive proof of innocence of revisionist. No irregularity or illegality has been committed by court below, in passing impugned order dated 12.11.2021. Even though revisionist has been exculpated by Investigating Officer, same cannot be taken as a ground to urge that revisionist cannot be subsequently summoned to face trial. Revisionist will have adequate opportunity to prove his innocence before court below by adducing Investigating Officer also as a defence witness. No attempt has been made to draw a parallel between the statements of P.W.1, P.W.2 and P.W.3 as recorded under Section 161 Cr.P.C. with their testimonies given before court below. Moreover no ground has been raised in the grounds of revision that nothing new has been stated by P.W.1, P.W.2 and P.W.3 in their depositions before court below than what was stated by them in their statements under section 161 Cr.P.C. before Court below. As such, nothing new has come on record on the basis of which, revisionist could have been summoned. Impugned order passed by court below is in conformity with the principles laid down by Constitution Bench in Hardeep Singh (supra), wherein court has defined the manner in which jurisdiction under Section 319 Cr.P.C. is to be exercised. On the aforesaid premise, it is thus urged by learned A.G.A. that no indulgence be granted by this Court in favour of revisionist. Present criminal revision is, therefore, liable to be dismissed.
16. 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)
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638
(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805
(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 (xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 (xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 (xix) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741
17. 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).
18. 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).
19. The nature of evidence 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. The second test laid down therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani (supra), Court held that a non charge sheeted accused can be summoned only on the basis of "strong and cogent evidence".
20. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements 57. 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).
21. 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).
22. The trial Court is competent to exercise its 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. 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)).
23- 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).
24- In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's 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.
25- 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.are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
26. The trial Court is competent to exercise its 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. 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)).
27- 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).
28- In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's 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.
29- 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.
30. Having noted the settled position, this Court is required to consider as to whether on the basis of statements-in-chief of P.W.1-Raees, P.W.2- Junaid, P.W.3 Jafar, revisionist could have been summoned by Court below as well as, an ancillary issue as to whether Court below, has exercised its jurisdiction "diligently" or in a "casual and cavalier manner".
31. Upon examination of record, the Court finds that revisionist is a named accused in the F.I.R. dated 6.5.2019 and the role of firing has been assigned to revisionist alongwith the other. After registration of aforesaid F.I.R., Investigating Officer in order to unearth the truth examined various witnesses under section 161 Cr.P.C. including the three prosecution witnesses of fact who have been examined up to this stage i.e. P.W.1-Raees, P.W.2- Jafar, P.W.3 Junaid. However, on the basis of above, and other material collected by Investigating Officer during course of investigation, he exculpated the revisionist Aman Tauseef.
32. In the aforesaid background, when a parallel is drawn with the deposition of the prosecution witnesses of fact i.e. P.W.1-Raees, P.W.2- Jafar, P.W.3 Junaid with their previous statements as recorded under section 161 Cr.P.C., the Court finds that something more than mere complicity of revisionist Aman Tauseef is establihsed in the crime in question. The role of firing along with others has been assigned to revisionist and others in the F.I.R, which is the basic prosecution case. P.W.3 Junaid who is an injured in his statement under section 161 Cr.P.C. has categorically stated that gun shots were fired by revisionist and three others upon himself and another on account of which he and another persons sustained gun shot injuries. Thus, P.W.3 Junaid has been consistent in his statement through out.
33. Court further finds that revisionist has been summoned under sections 147, 148, 307, 506 IPC. When the statement of the three prosecution witnesses of fact who have been examined up to this stage is examined along with their statement under section 161 Cr.P.C., it cannot be said categorically that nothing more than mere complicity of revisionist in the crime in question is established. To the contrary the role of firing has been assigned to revisionist alongwith three others. In the aforesaid background, the argument raised by leaned counsel for revisionist that inspite of above, charge sheet has been submitted against Danish @ Lala and Nazim @ Raju therefore, Court below has erred in summoning the revisionist under sections 319 Cr.P.C. is wholly misconceived.
34. The same procedure as adopted by Apex Court in judgements referred to above has been applied in present case. Court has not come across any such material to conclude that Court below has not exercised it's jurisdiction "diligently" and revisionist has been summoned by Court below in a "casual and cavaliar manner". Depositions of P.W.1, P.W.2 and P.W.3 fall in the realm of legal evidence. Their evidence is "strong and cogent evidence" as it satisfies the twin tests laid down by Constitution Bench in paragraph 106 of the judgement in Hardeep Singh (Supra). Something more than mere complicity of revisionist in the crime in question stands clearly established as per depositions of P.W. 1, P.W.2 and P.W.3. As well as the statement of P.W.3 Junaid recorded under section 161 Cr.P.C. Court below has thus not committed any jurisdictional error in passing the impugned order.
35. For the facts and reasons noted above, this Court does not find any good ground to interfere in this criminal revision. Present revision lacks merit and is, therefore, liable to be dismissed.
36. It is, accordingly, dismissed.
37. Costs made easy.
Order Date :- 1.8.2022 Arshad