Allahabad High Court
Amit Kumar vs State Of U.P. And 2 Others on 25 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:72944 Court No. - 77 Case :- CRIMINAL REVISION No. - 2262 of 2023 Revisionist :- Amit Kumar Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Navin Kumar Counsel for Opposite Party :- Anshul Pathak,G.A.,Rahul Singh Dahiya Hon'ble Rajeev Misra,J.
1. Heard Mr. Navin Kumar, the learned counsel for revisionist, the learned A.G.A. for State and Mr. Rahul Singh Dahiya, the learned counsel representing opposite party-2.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 15.02.2023, passed by Additional Sessions Judge, Khurja, District-Bulandshahar in Sessions Trial No. 1087 of 2020 (State Vs. Gaurav), under Section 307 IPC, Police Station-Khurja Nagar, District-Bulandshahar, whereby an application dated 17.01.2023 under Section 319 Cr.P.C. (Paper No. 19-A) filed by the prosecution has been rejected.
4. Record shows that in respect of an incident, which is alleged to have occurred on 23.04.2020, a prompt F.I.R. dated 23.04.2020 was lodged by first informant-Amit Kumar and was registered as Case Crime No. 0310 of 2020, under Sections 307 and 506 IPC, Police Station-Khurja Nagar, District-Bulandshahar. In the aforesaid F.I.R., two persons namely Gaurav and Saurabh have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Gaurav and Saurabh fired at Harendra Singh (brother of the first informant), on account of which, he sustained fire arm injury.
6. 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. After completing the preliminaries i.e. visiting the place of occurrence, medico legal examination of the injured, preparation of the site plan, Investigating Officer proceeded to examine the first informant and other witnesses including the injured, Harendra Singh under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only one of the named accused namely Gaurav is established in the crime in question. Accordingly, Investigating Officer submitted the police report dated 13.06.2020 in terms of Section 173 (2) Cr. P. C., whereby named accused Gaurav has been charge sheeted under Section 307 IPC.
7. After submission of the police report (charge sheet) as noted above, cognizance was taken upon same by the concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is triable exclusively by Court of Sessions, consequently, the concerned Magistrate committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 1087 of 2020 (State Vs. Gaurav), under Section 307 IPC, Police Station-Khurja Nagar, District-Bulandshahar came to be registered and is now pending in the Court of Additional Sessions Judge (Khurja), District-Bulandshahar.
8. Concerned Sessions Judge framed charges against charge sheeted accused, who denied the same and pleaded innocence. Consequently, the trial procedure commenced.
9. Prosecution in discharge of its burden to bring home the charges so framed adduced PW-1, Amit Kumar (first informant) and PW-2 Harendra Singh (injured) up to this stage.
10. After the statement-in-chief and examination-in-chief of aforesaid witnesses were recorded, prosecution filed an application dated 17.01.2023 under Section 319 Cr. P. C. alleging therein that since the complicity of named but not charge sheeted accused Gaurav is also established in the crime in question, as per the depositions of the prosecutions witnesses examined up to this stage i.e. PW-1 and PW-2, therefore, he be also summoned to face trial. It appears that no objection to the said application was filed by the charge sheeted accused.
11. Court below then proceeded to decide the said application under Section 319 Cr. P. C. in the light of the statement-in-chief/examination-in-chief of P.W. 1. and PW-2. In pursuance of above, Court below first referred to the allegations made in the application under Section 319 Cr.P.C. Thereafter, Court referred to the Five Judges Bench judgement of Supreme Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC, 92 and noted the ratio laid down therein. Having undertaken the above exercise, Court below proceeded to evaluate the allegations made in the application under Section 319 Cr. P. C. in the light of the depositions of PW-1 and PW-2 and the law laid down by the Apex Court in aforementioned judgment.
12. Having undertaken the above exercise, Court below came to the conclusion that no good ground for summoning of the prospective accused i.e. Saurabh (named but not charge sheeted accused) is made out to summon the prospective accused. Consequently, Court below rejected the application under Section 319 Cr.P.C. filed by the prosecution by means of the impugned order dated 15.02.2023.
13. Thus feeling aggrieved by the order dated 15.02.2023, revisionist, who is the first informant, has now approached this Court by means of present criminal revision.
14. Learned counsel for revisionist contends that the order impugned in present criminal revision is manifestly illegal and therefore, the same is liable to be set aside by this Court. Attention of the Court was invited to the statement of first informant/PW-1 Amit Kumar (copy of which is on record as Annexure-C.A.-1 to the counter affidavit) and on basis thereof, it is urged that since complicity of the named but not charge sheeted accused Saurabh is also established in the crime in question, therefore, Court below has erred in law in rejecting the application under Section 319 Cr.P.C. filed by revisionist. On the above premise, he, therefore, concludes that the order impugned is liable to be set aside by this Court and the application under Section 319 Cr. P. C. filed by the revisionist is liable to be allowed.
15. Per contra, the learned A.G.A. and the learned counsel representing opposite party-2 have vehemently opposed the present criminal revision. They submit that the order impugned in present criminal revision is perfectly just and legal and therefore, not liable to be interfered with. Court below has not committed any illegality in passing the order impugned nor there is any perversity in the findings recorded in the order impugned. Present criminal revision is concluded by findings of act and therefore, the same is liable to be dismissed by this Court.
16. Having heard the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party-2 and upon perusal of record, this Court finds that the primary question, which arises for consideration in present revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As a corollary to above, Court will also have to consider;- Whether the order impugned is in confirmity within the established parameters or not.
17. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by Apex 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
18. With the aid of above, this Court now proceeds to examine the veracity of impugned order dated 15.02.2023, passed by Additional Sessions Judge, Khurja, District-Bulandshahar in Sessions Trial No. 1087 of 2020 (State Vs. Gaurav), under Section 307 IPC, Police Station-Khurja Nagar, District-Bulandshahar, whereby the application dated 17.01.2023 under Section 319 Cr.P.C. filed by the revisionist has been rejected.
19. Before proceeding to do so, it must be noticed that following issues stand settled as per the judgements of the Supreme Court mentioned herein above and, therefore, the same are not required to be dealt with, by this Court.
20. 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 Judgment in Dharam Pal (Supra).
21. 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).
22. 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).
23. 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.
24. 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).
25. 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).
26. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
27. 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 vide Brijendra Singh (Supra).
28. 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)).
29. 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).
30. 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 parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
31. 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.
32. 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.
33. 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).
34. Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1, Amit Kumar (first informant) and PW-2, Harendra Singh (the injured), the prospective accused i.e. opposite party-3 herein namely Saurabh 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.?"
36. The next issue which is required to be considered by this Court is whether satisfaction is required to be recorded by the Court considering the application under Section 319 Cr.P.C. filed by the prosecution and in case, any such satisfaction is required then what will be the degree of such satisfaction to be recorded by Court for summoning a prospective accused? The issue is no longer res-integra and stands concluded by the Five Judges Bench judgment of Supreme Court in Hardeep Singh (Surpa), wherein it has been held that the Court while deciding the application under Section 319 Cr.P.C., can allow the said application provided, the degree of satisfaction as explained in paragraph 106 of the report is recorded. For ready reference, paragraph 106 of the aforesaid report 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.
37. When the order impugned is examined in the light of above, it is explicitly clear that since there is strong variation in between the statements of PW-1 i.e. first informant and that of PW-2, no illegality can be said to have been committed by Court below in rejecting the application under Section 319 Cr.P.C. as the satisfaction as required to be recorded in terms of paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra) for summoning a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C.
38. Even though, the law with regard to the summoning of a prospective accused was crystallized by the Five Judges Bench judgment in Hardeep Singh (Supra) and the Bench has formulated the same in paragraphs 4, 5, 6, 6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6 of the report yet the parameters with regard to the exercise of jurisdiction under Section 319 Cr.P.C. were subsequently, made more stringent but in favour of accused by the subsequent Two Judges Bench Judgments of the Supreme Court in Brijendra Singh Vs. State of Rajsthan, (2017) 7 SCC 706 and S Mohammad Ishpahani Vs. Yogendra Chandak (2017) 16 SCC 22. On a conjoint reading of the aforementioned judgments, the Court upon consideration of the law laid down in Hardeep Singh (Supra) has gone steps further and limited the scope with regard to exercise of jurisdiction under Section 319 Cr.P.C. by formulating (a) a prospective accused can be summoned on the statement-in-chief of one prosecution witness (b) however, in a case, where an accused is named in the F.I.R. but exculpated by the Investigating Officer in the police report, then Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as the said material is a relevant material (c) before summoning a prospective accused on the basis of the deposition of prosecution witness, the Court must draw a parallel in between the statement of such witness recorded under Section 161 Cr. P. C. and his deposition before Court below to find out whether something new has emerged in the deposition of the prosecution witness than what was stated by him in his statement under Section 161 Cr.P.C., (d) the prospective accused cannot be summoned merely on the basis of his complicity in the crime in question but only if, an inference of guilt of prospective accused can be gathered from the evidence up to that stage, (e) the power under Section 319 Cr. P. C. is an extraordinary power and should be exercised sparingly and not in a routine manner, (f) the Courts should exercise their jurisdiction diligently and not in a "casual and cavalier" fashion, (g) it is only when strong and cogent evidence has emerged against a prospective accused, which is much more than mere complicity of a prospective accused in the crime in question can he be summoned under Section 319 Cr.P.C.
39. When the order impugned is examined in the light of parameters laid down by Apex Court regarding exercise of jurisdiction under Section 319 Cr.P.C. as noted above, this Court finds that PW-1 who is the first informant, in his deposition before Court below has departed from the basic prosecution story as unfolded in the FIR. It is well settled that though FIR is not the encyclopedia of the prosecution case, but it must disclose the basic prosecution case. Once it is the basic prosecution case that both the named accused had fired shots at the injured which fact is found to be untruthful in the course of investigation, therefore, the somersault taken by PW-1 in his deposition before Court below to the effect that the injured was caught hold by named accused Saurabh whereas another named accused Gaurav fired the gun shot amounts to going beyond the prosecution story itself. No explanation has come forward from PW-1 regarding the aforesaid departure. Furthermore, PW-2 Harendra Singh, who is the injured has only implicated Gaurav in the crime in question. The Apex Court in the case of Manjeet Singh (Supra) has already held that the evidence of an injured witness is far more credible than an ordinary witness. When the depositions of PW-1 and PW-2 are examined in the light of above, the balance tilts in favour of the deposition given by PW-2. Since neither any strong and cogent evidence has emerged against the prospective accused Gaurav, therefore, Court below in diligent exercise of jurisdiction has rightly rejected the application under Section 319 Cr.P.C. filed by the prosecution. As such, Court below has neither 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.
40. In view of the discussion made above, the present criminal revision fails and is liable to be dismissed.
41. It is, accordingly, dismissed.
42. However, considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 25.4.2024 Vinay