Allahabad High Court
Shailendra Kumar vs State Of Up And 2 Others on 24 February, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- APPLICATION U/S 482 No. - 7203 of 2020 Applicant :- Shailendra Kumar Opposite Party :- State Of Up And 2 Others Counsel for Applicant :- Lok Nath Pandey Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Sri K.S.Shukla, learned counsel has filed his Vakalatnama on behalf of opposite party no.2 today in Court which is taken on record.
2. Heard Sri Pawan Giri, learned counsel holding brief of Sri Loknath Pandey, learned counsel for the applicant, Sri K.S. Shukla, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
3. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 23.01.2020 passed by learned Special Judge (SC/ST Act)/Additional Sessions Judge, Court No.2, Bhadohi-Gyanpur in Session Trial No. 147 of 2016 (State Vs. Tarun Pathak and others) arising out of Case Crime No. 50 of 2016 under Sections 147, 148, 149, 307, 323, 504, 506, 285 I.P.C. read with Section 3 (2) (v) of SC/ST Act, Police Station Chauri, District Bhadohi, whereby application filed by first informant-applicant under Section 319 Cr.P.C. for summoning the accused-opposite party nos. 2 and 3, to face trial under the aforesaid trial, has been rejected.
4. It has been argued by learned counsel for the applicant that applicant is first informant and he has lodged F.I.R. against the accused-opposite party nos. 2 and 3 as well as against other accused persons. After investigation, opposite party no.2 and 3 were exonerated in an arbitrary manner without considering the evidence on record and they were not charge sheeted. Learned counsel further argued that during trial, P.W.1 Shailendra Kumar, who is an injured witness, has specifically named the accused-opposite party nos. 2 and 3 in his statement. Similarly, P.W.2 Pankaj Kumar also deposed against the opposite party nos. 2 and 3. It was submitted that in view of statements of P.W.1 and P.W.2, application filed by applicant under Section 319 Cr.P.C. for summoning of opposite party nos. 2 and 3 to face trial in the aforesaid case, has been dismissed in arbitrary manner without considering the evidence on record. It was further submitted that the impugned order is against the facts and law, thus liable to be set aside and matter may be remitted to learned trial Court to consider and decide application under Section 319 Cr.P.C. afresh.
5. Learned counsel for the opposite party nos. 2 and 3 has opposed application and argued that though, opposite party nos. 2 and 3 have been named in the F.I.R. but during investigation, their complicity in commission of alleged offence was not found, thus they were exonerated on the basis of material available on record. It was submitted that during trial, P.W.2 Pankaj Kumar has stated in his cross examination that he was assaulted by accused persons namely, Arun Pathak, Raju Pathak and Kamlesh Nath Pathak and no other accused has assaulted him, which clearly indicates that no offence against the accused-opposite party No. 2 and No.3 is made out. The first informant has filed application under Section 319 Cr.P.C., in order to falsely implicate and harass the accused-opposite party nos.2 and 3. It was stated that learned Court below, after appraisal of evidence on record, did not find any case against the opposite party nos.2 and 3 and has rightly rejected application under Section 319 Cr.P.C., which calls for no interference by this Court.
6. By the impugned order, application under Section 319 Cr.P.C. has been rejected. Before considering the merits of the contention, it is necessary to refer to Section 319 Cr.P.C. which reads 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.
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(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.? By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused."
7. The issue regarding exercise of powers under Section 319 Cr.P.C. has been recently considered by Hon'ble Apex Court in case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another decided on 23rd July, 2019 passed in Criminal Appeal No. 1105 of 2019 arising out of SLP (Crl.) No. 2168 of 2019 and it was held as under:-
"9. The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, ?the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are ?it appears from the evidence??.?any person??.?has committed any offence?. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court.?
10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly which reads as under:-
?105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused.?
11. The above view was followed in Brijendra Singh as under:-
?13. In order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: ?.. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.?
8. Keeping in view the above cited law, in the instant case, though P.W.1 has named the opposite party nos. 2 and 3 and stated that they were also involved in the alleged offence, however, P.W.2 Pankaj Kumar has stated in his cross examination that he was not assaulted by opposite party nos. 2 and 3. Learned trial Court has also observed that at this stage it would not be appropriate to render any findings regarding appraisal of evidence and facts, which have emerged in cross examination of P.W.1, P.W.2 and P.W.3 as some other witnesses are yet to be examined, but held that there was no sufficient evidence against opposite party nos. 2 and 3, to summon them to face trial. Learned trial Court, after discussing the entire facts, concluded that no case against the opposite party nos. 2 and 3 is made for their summoning under Section 319 Cr.P.C., and thus application under Section 319 Cr.P.C. filed by the applicant has been rejected.
9. Considering the statements of witnesses and all attending facts and circumstances of the case as well as above stated position of law, it cannot be said that impugned order suffers from any such illegality, perversity or abuse of the process, so as to warrant any interference by this Court in exercise of powers under Section 482 Cr.P.C. It is well settled that powers under Section 482 Cr.P.C. have to be exercised to make such orders as may be necessary to give effect to any order under Code of Criminal Procedure, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In the instant case, after perusing the entire relevant material and position of law, no such exigency is made out, so as to exercise the inherent powers under Section 482 Cr.P.C.
10. Instant application under Section 482 Cr.P.C. is bereft of merit and accordingly it is dismissed.
Order Date :- 24.2.2020 S.Ali