Allahabad High Court
Smt. Saroj Devi And 2 Others vs State Of U.P. And Another on 14 January, 2020
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Court No. - 51 Case :- CRIMINAL REVISION DEFECTIVE No. - 153 of 2019 Revisionist :- Smt. Saroj Devi And 2 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Satyendra Narayan Singh,Subhash Chandra Pandey Counsel for Opposite Party :- G.A. Hon'ble Manish Kumar,J.
1.Office reported that there is delay of 57 days in filing Criminal Revision.
2.Cause shown in the affidavit filed alongwith the delay condonation application is satisfactory. Delay is condoned.
3.Heard learned counsel for the revisionists, learned A.G.A. for the State and examined the record.
4.The present criminal revision has been preferred against the judgement and order dated 18.09.2018 passed by 2nd Additional Session Judge, Rampur, under section 319 Cr.P.C. in Session Trial No.217 of 2013 (State Vs. Kapil and others) under sections 504, 506, 307 IPC, P.S.Tanda, District Rampur arising out of case crime no.1371A of 2009, whereby the revisionist has been summoned under section 319 Cr.P.C.
5.The brief facts of the case are that an FIR has been lodged on 25.10.2009 by the complainant Smt.Santra Devi against five accused persons including the present revisionists under sections 147, 148, 149, 452, 504, 506, 325 I.P.C. with the allegations against the accused persons that they entered into the house of complainant and started abusing her and thereafter started beating. The other two accused persons, namely, Kapil and Anil were armed with Tamancha, who started firing due to which Neetu was injured.
6.Learned counsel for the revisionists has contended that on 25.10.2019 at 8.30 a.m. an FIR was lodged by Anil Chaudhary son of revisionist no.1 and brother of revisionists no.2 and 3 against the family members of respondent no.2 that the family members of the complainant party came to revisionist house abused and beat them. As a counter blast at 1.30 p.m. on the very same day i.e. 25.10.2019, respondent no.2 lodged an FIR against the revisionists and two of her family members almost on the same pattern against the Revisionist and other finally members.
7.It has further been contended that the charge sheet was filed on 25.01.2011 against only two accused persons, namely, Anil and Kapil son of late Ishwar Singh (son of revisionist no.1) and no charge sheet was filed against the revisionists and after more than seven years order dated 18.09.2018 was passed by learned trial court under section 319 Cr.P.C. summoning the revisionists
8. It has further been contended on behalf of the revisionists that there is contradiction in the statement on which the learned trial court has relied
9. It has further been contended that supplementary medical report was obtained from the doctor showing the gunshot injuries which was not in the first medical report.
10.An FIR dated 25.10.2010 has been lodged against Dr.Dharmesh Singh by Sri Anil Chaudhary, the son of the revisionist
11.In the said matter on. 24.12.2012 learned court below has passed the summoning order against Dr.Dharmesh Singh in which it has specifically been mentioned that Dr. Dharmesh Singh in his written reply has accepted that injured had received only five injuries, injuries no. 1 to 4 were caused by the blunt object and on injury no.5, no opinion was given by him which clearly shows that there is no firearm injury inflicted upon the injured. Certified copy of the order dated 24.12.2012 has been placed before this Court which has been seen by the learned A.G.A. and the same has been taken on record.
12. It is further contended by the learned counsel for the revisionists the supplementary medical report was before the learned trial court as is evident that respondent no. 2 was examined on this question also which is part of the present case.
13. Learned A.G.A. has opposed the contention raised on behalf of the revisionists that in the statement given by respondent no.2 and the injured Neetu is sufficient for issuance of summon under section 319 Cr.P.C. Learned A.G.A. has submitted that prima facie, it appears that it is a family dispute, but the statement is against the revisionists so they must face trial. Learned A.G.A.has failed to dispute the contradiction in the statement nor disputed the summoning order dated 24.12.2012 passed by the learned court below against Dr. Dharmesh Singh or unable to show that there was any other material or evidence on record before the learned trial court for issuance of summoning order against the revisionists.
14.After hearing learned counsel for both the parties and after examining the record, the learned trial court prior to passing of summoning order has neither applied his mind nor expressed his opinion or satisfaction. In the present case there is no strong and cogent evidence against the revisionists.
15.The power under section 319 Cr.P.C. is a discretionary and extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warranted. It shall be exercised where strong and cogent evidence occurred against a person from the evidence led before the court and not in a causal and cavalier manner.
16.The test that has to be applied is one which is more than prima facie case as exercised at the time of framing charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. Learned counsel for the revisionists has relied upon judgement in the case Sugreev Kumar-appellant (s) Vs. State of Punjab and others-respondent(s), reported in 2019 0 Supreme (SC) 306; 2019 5 ACJ 123; 2019 0 AIR (SC) 2903; 2019 128 CLT 24; 2019 4 Crimes (SC)370; 2019 3 East Cr C (SC)6; 2019 3 JCC1940; 2019 2 Law Herald (SC) 1074; 2019 2 MLJ (Cri)304; 2019 2NCC 362; 2019 5 Scale 123; 2019 6 SCJ 625; 2019 3 Supreme 722; 2019 2 UC 874, wherein it has been held that the Court has to see whether a prima facie case is made out to proceed against the accused under section 319 Cr.P.C. Learned counsel for the revisionists has relied upon the jujdgement of the Hon'ble Apex Court in the case of Brijendra Singh and other Vs. State of Rajasthan, reported in AIR 2017 SUPREME COURT 2839, wherein the principal laid down by the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Panjab and others, reported in AIR 2014 SUPREME COURT 1400. It has further been held that strong and cogent evidence is available against the accused persons than alone such power of summoning should be exercised. It is not to be exercised in a causal and cavalier manner. The prima facie conviction which is to be formed required stronger evidence than mere probability of his complicity.
17. I am of the opinion that while passing the impugned summoning order dated 18.09.2018 under section 319 Cr.P.C., learned trial court has not disclosed any strong and cogent evidence available against the revisionists. The order impugned was passed in a causal and cavalier manner, nor any satisfaction has been recorded and hence the order impugned dated 18.09.2018 passed by 2nd Additional Sessions Judge, Rampur, under serction 319 Cr.P.C. in Sessions Trial No.217 of 2013 (State Vs. Kapil and others) arising out of case no.1371 A of 2009, under sections 504, 506, 307, IPC, P.S.Tanda, District Rampur, is not sustainable.
18. With these observations, the criminal revision is allowed and the summoning order dated 18.09.2018 is set aside.
19.At the same time liberty is given, if any, strong and cogent evidence will come against the present revisionists during the trial, the learned trial court is free to pass any order as per procedure provided under the Code.
20.It is clarified that anything said in this order is limited to the purpose of determination of this criminal revision and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 14.1.2020 PKC