Allahabad High Court
Amar Singh & Another vs State Of U.P. on 21 November, 2014
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 21 AFR
Reserved on 10.11.2014
Delivered on 21.11.2014
Case :- U/S 482/378/407 No. - 3713 of 2007
Applicant :- Amar Singh & Another
Opposite Party :- State Of U.P.
Counsel for Applicant :- Mukul Rakesh
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Vishnu Chandra Gupta,J.
By means of the present petition under section 482 Code of Criminal procedure Code (for short Cr.P.C.), the petitioners have prayed for quashing the order impugned dated 7.11.2007 passed by Additional Sessions Judge,court No. 17, Lucknow in Sessions Trial No. 346 of 2006 State Vs. Rajveer and another, by which present petitioners were summoned under section 319 Cr.P.C. to face trial under sections 307, 506 and 120 IPC.
Brief facts for deciding this petition are that a first information report was lodged by one Ramendra Kumar Yadav against accused persons Rajveer, Amrendra including petitioners Amar Singh and Rajendra Singh on 20.4.2005 at 1.40 p.m. alleging therein that on 20.4.2005 at 9.00 a.m. he was going to attend the court case at Lucknow on his motor cycle having registration no. U.P. 32 A.L.-5133 alongwith his younger brother Babloo alias Balram Yadav. When they reached Saraiya turn and turned towards Khandanja, Rajveer son of Amar Singh and adopted son Putti Lal, Amrendra son of Munni Lal resident of Noor Nagar Madars and two others came on two motor cycles from behind. Accused persons Rajveer and Amrendra were armed with fire arms. They fired upon his brother Babloo alias Balram Yadav with intent to kill him. Babloo alias Balram Yadav received injuries. He raised alarm. After hearing the cries, his younger brother Sher Bahadur and the persons working in the nearby fields, namely Dasrath and Indrapal came to rescue Babloo alias Balram Yadav. The accused persons after extending threats to life escaped making fires from the spot. It has been suspected in the FIR that Rajveer's father Amar Singh and Rajveer's uncle Rajendra Singh, who are in jail, have old enmity with the informant, hatched conspiracy to commit murder and manged this incident. It was stated that earlier, the accused persons extended threats to kill him and his brother.
After investigation, no charge-sheet has been filed for the alleged conspiracy against the petitioners who are named in the FIR. The trial proceeded. After recording the statements of witnesses on the application moved on behalf of prosecution, the present petitioners have been summoned by the trial court by the impugned order. Aggrieved with the same, this petition has been filed under section 482 Cr.P.C.
Heard leaned counsel for the petitioners and the learned AGA and also perused the record of this petition.
It has been submitted by the learned counsel for the petitioners that though on the basis of evidence recorded during trial the petitioners have been summoned, but going through the evidence adduced during trial no prima facie case is made against the petitioners for the offence mentioned in the order impugned. The necessary ingredients of sections 307,506 and 120 IPC are not available in the evidence against the petitioners.
My attention has been drawn towards statements of Ramendra Kumar P.W. 1, Balram Singh P.W. 2, Sher Bahadur Yadav P.W. 3 and Constable Suresh Kumar P.W. 4.
P.W. 1 Ramendra Kumar, the informant of this case deposed in examination-in-chief that Rajveer's father Amar Singh and Rajveer's uncle Rajendra Singh extended threats to kill him while they were in jail. This was earlier to the incident of this case, but in cross examination nothing more has been said about the petitioners.
P.W. 2,Balram Singh Yadav, the injured stated in examination-in-chief that a month before this incident, Rajveer's father Amar Singh and Rajveer's uncle Rajendra Singh, extended threats to him and his elder brother, after stopping them in court. They told to him to stop the pairavi in the case of girl, otherwise they would be killed. Therefore, Rajveer and Amarendra are the persons who hatched conspiracy to kill in this incident.
P.W. 3 Sher Bahadur stated in examination-in-chief that earlier to this incident Rajendra Singh and Amar Singh, for the charges of criminal conspiracy of murder, managed to sent Babloo alias Balram Yadav to jail, but in cross examination nothing more has been stated about the petitioners.
In the statement of P.W. 4, Constable Suresh Kumar nothing material has been mentioned except lodging of the FIR.
Learned Sessions judge while referring the aforesaid statements of the witnesses passed the order impugned and opined that a prima face case is made out against the petitioners as witnesses have given positive evidence of criminal conspiracy against the petitioners.
Learned AGA pointed out that sufficiency of evidence could not be looked into at this stage.
I have considered the revival submissions of the learned counsel for the parties and perused the record.
If the statements of the aforesaid witnesses recorded and referred hereinabove, are taken to be true on its face value, whether necessary ingredients of offence under section 120-B IPC are made out against the petitioners to hatch the conspiracy of causing murderous assault on Babloo alias Balram Yadav?
Admittedly, the petitioners were not present on the spot when the incident was occurred. They were admittedly in jail at the time of alleged incident. If the evidence adduced by the aforesaid three witnesses is taken to be true on its face vale, it cannot be said that there is any evidence against the petitioners for hatching criminal conspiracy. The witnesses simply inferred on the basis of threats extend by them that they have hatched conspiracy. If these statements remained uncontroverted, even in the opinion of this Court no prima facie case against the petitioners could be established under sections 307 and 120-B IPC.
The trial court under section 319 Cr.P.C. should exercise its powers sparingly. For exercising the powers under section 319 Cr.P.C. The evidence required is above of the degree, which is required to summon accused persons at the initial stage.
The constitution bench of the Apex Court in Hardeep Singh Vs. State of Punjab & others JT 2014 (1) SC 412 has observed as under:-
"110. We accordingly sum up our conclusions as follows:
Question Nos.1 & III ....................................
Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different."
Summon a person to face criminal trial is a serious thing. It infringes his personal liberty guaranteed under Article 21 of the Constitution of India. An accused could be prosecuted in accordance with procedure established by law. The responsibility to observe the procedure established by law is upon the court and the court should have discharged the functions in this regard with great care and caution and should apply its mind while passing the order to summon the accused persons to face trial and should not normally passed such order in a routine manner as held by Hon'ble Supreme Court in Masood Alam Vs. State of Gujrat (2008) 5 SCC 668.
In view of the above, I am of the view that order impugned cannot be allowed to sustain and the same is liable to be set aside .
Consequently, the petition is allowed and the order impugned is set aside. The interim order,if any, stands discharged.
Order Date: 21.11.2014 GSY