Allahabad High Court
Akash Deep vs State Of U.P. And Another on 8 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:110825 Reserved on: 27.05.2024 Delivered on: 08.07.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 2962 of 2023 Revisionist :- Akash Deep Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Amit Daga,Kripa Shanker Yadav,Krishna Kanhaiya Soni,Manish Dev Counsel for Opposite Party :- Ankit Agarval,Bharat Garg,G.A. Hon'ble Rajeev Misra,J.
1. Challenge in this criminal revision is to the order dated 19.07.2022 passed by Additional District and Sessions Judge/F.T.C., Court No.-3, Moradabad in Sessions Trial No. 1229 of 2020 (State Vs. Shanker Lal), under Sections 498-A, 304-B IPC and Sections ¾ Dowry Prohibition Act, Police Station-Majhola, District-Moradabad, whereby the application dated 26.08.2021, under Section 319 Cr.P.C. (Paper No.- 10-B) filed by the prosecution, for summoning the prospective accused Akash Deep i.e. the revisionist herein to face trial in aforementioned Sessions Trial, has been allowed and consequently, the revisionist has been summoned under Sections 498-A, 304-B IPC and Sections ¾ Dowry Prohibition Act to face trial in aforementioned Sessions Trial.
2. Perused the record.
3. I have heard Mr. Amit Daga, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Ankit Agarwal, the learned counsel representing first informant-opposite party-2.
4. Record shows that in respect of an incident, which is alleged to have occurred on 02.03.2020, a delayed F.I.R. dated 03.03.2020 was lodged by first informant, Ramesh (father of deceased) and was registered as Case Crime No. 0174 of 2020, under Sections 498-A, 304-B IPC and Sections ¾ Dowry Prohibition Act, Police Station-Majhola, District-Moradabad. In the aforesaid F.I.R., one Shanker Lal (father-in-law of deceased) has been nominated as solitary named accused.
5. As per the prosecution story, as unfolded in the FIR, the marriage of Seema (daughter of first informant Ramesh) was solemnized with Akash (the revisionist herein) Son of Shanker Lal in accordance with Hindu rites and customs on 18.04.2018. As per the FIR, it is the case of prosecution that physical and mental cruelty was committed upon the daughter of first informant by named accused Shanker Lal on account of deficient amount of dowry given at the time of marriage. Castigating remarks were also made by the named accused Shanker Lal against his son Akash. Unfortunately, on 02.03.2020, the daughter of first informant was put to death by named accused Shanker Lal by committing strangulation.
6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. Having undertaken the preliminaries i.e. visiting the place of occurrence, recovery of the dead body of deceased, inquest of the body of deceased, post-mortem of the body of deceased, preparation of site plan, Investigating Officer recorded the statements of the following witnesses namely - (i). Ramesh (first informant), (ii). Rakesh, (iii). Ankur, (iv). Ved Prakash Singh, (v). Sandeep, (vi). Vijendra Singh, (vii). Ashok, (viii). Harendra Singh, (ix). Satveer, (x). Bhagwan Das and (xi). Surendra Singh, under Section 161 Cr.P.C.
7. Investigating Officer also obtained the CDR report pertaining to the mobile phone of revisionist Akash Deep. As per the said CDR report, the location of the mobile phone of revisionist Akash Deep was found beyond Village Didori from 11:54':44'' to 13:20':58'' on 02.03.2020.
8. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that it is the complicity of named accused Shanker Lal, which alone is established in the crime in question. Accordingly, Investigating Officer submitted the police report dated 04.06.2020 in terms of Section 173(2) Cr.P.C., whereby and whereunder, the named accused Shanker Lal has been charge sheeted under Sections 498-A, 304-B, 302 IPC and Sections ¾ Dowry Prohibition Act.
9. Upon submission of aforementioned police report, cognizance was taken upon same by the concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C., vide Cognizance Taking Order dated 06.06.2020. Since offence complained of is traible exclusively by the Court of Sessions, therefore, concerned Magistrate, in compliance of Section 209 Cr.P.C., committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 1229 of 2020 (State Vs. Shanker Lal), under Sections 498-A, 304-B IPC and Sections ¾ Dowry Prohibition Act, Police Station-Majhola, District-Moradabad came to be registered and is now said to be pending in the Court of Additional District and Sessions Judge/F.T.C., Court No.-3, Moradabad.
10. The concerned Sessions Judge proceeded with the trial. In compliance of Section 211 Cr.P.C., he framed charges against the charge sheeted accused. However, the charges so framed were denied by the charge sheeted accused and he demanded trial. Consequently, the trial procedure commenced.
11. Prosecution, in discharge of it's burden to bring home the charges so framed against charge sheeted accused, adduced first informant Ramesh as PW-1.
12. After the statement-in-chief of aforementioned witnesses was recorded, prosecution filed an application dated 26.08.2021, under Section 319 Cr.P.C. alleging therein that since as per the deposition of PW-1 Ramesh, the complicity of not named accused Akash Deep (husband of the deceased), the revisionist herein has also emerged in the crime in question, therefore, he be also summoned to face trial in aforementioned Sessions Trial. This application came to be registered as Paper No. 10-B.
13. The concerned Sessions Judge examined the allegations made in the application under Section 319 Cr.P.C. and evaluated the same in the light of the deposition of PW-1 Ramesh (first informant) as well as the material on record. On the basis of above, Court below came to the conclusion that since a prima-facie case for summoning the prospective accused is made out, therefore, vide order dated 19.07.2022 allowed the aforementioned application and consequently, summoned the prospective accused namely Akash Deep i.e. the revisionist herein, under Sections 498-A, 304-B IPC and Section ¾ Dowry Prohibition Act to face trial in aforementioned Sessions Trial.
14. Thus feeling aggrieved by the above order dated 19.07.2022 passed by Additional District and Sessions Judge/F.T.C., Court No.-3, Moradabad in Sessions Trial No. 1229 of 2020 (State Vs. Shanker Lal), under Sections 498-A, 304-B IPC and Sections ¾ Dowry Prohibition Act, Police Station-Majhola, District-Moradabad, the revisionist Akash Deep has now approached this Court by means of present criminal revision.
15. Mr. Amit Daga, the learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal and therefore, liable to be set aside by this Court. According to the leraned counsel for revisionist, though the revisionist is the son-in-law of first informant/husband of deceased yet he was not named in the FIR. Referring to the FIR lodged by first informant, it is urged by the learned counsel for revisionist that though FIR is not the encyclopedia of the prosecution case but it must disclose the basic prosecution case. Neither the revisionist is named as an accused in the FIR, nor any allegation has been made against him in the body of FIR. He, therefore, contends that as per the basic prosecution case, the revisionist is not involved in any manner in the crime in question.
16. Attention of the Court was then invited to the statement of the first informant recorded under Section 161 Cr.P.C., which is on record at page 35 of the paper book. With reference to above, it is urged by the learned counsel for revisionist that first informant, in his aforementioned statement, has neither made any statement adverse to the revisionist nor has levelled any allegation regarding demand of dowry/commission of cruelty upon the deceased by the revisionist. Reference was also made to the statement of other witnesses, as noted above, who were examined under Section 161 Cr.P.C. by the Investigating Officer. On the strength of above, he submits that innocence of the revisionist is writ large on the face of record. However, irrespective of above, the first informant in his deposition before Court below has departed from the prosecution story as unfolded in the FIR as well as his previous statement under Section 161 Cr.P.C. The first informant has now implicated the revisionist in the crime in question. However, no explanation has been offered by the first informant in his deposition before Court below regarding the departure so made by the first informant. The recital occurring in the deposition of PW-1 insofar as it implicates the revisionist in the crime in question is on the basis of non-existent fact/facts, which was never subjected to investigation by the police during the course of investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He, therefore, contends that in view of above, the deposition of PW-1, wherein the first informant (PW-1) has deposed against present revisionist is not worthy of acceptance.
17. The learned counsel for revisionist then invited the attention of Court to the deposition of PW-1 Ramesh (first informant). With reference to above, he submits that first informant in his deposition before Court below has implicated the present revisionist in the crime in question. It is for the first time that the demand of dowry has been quantified, which is Rs. 1,00,000/-. It has further been deposed that cruelty was committed upon the daughter of first informant by named accused Shanker Lal (father-in-law of deceased) as well as Ramesh (husband of deceased) for fulfilment of the demand of dowry. At this juncture, the learned counsel for revisionist invited the attention of Court to the judgment of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, wherein it has been observed that there is a growing tendency to name the family members and distant relatives in matrimonial disputes under Section 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act. Considering the above, the Court expressed it's anxiety in paragraphs 13 to 21 of the report, which reads as under:-
"13. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr.5, it was also observed:-
"4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested."
14. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. 6, it has also been observed:-
"32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.
36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."
15. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7, it was observed:-
"21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
"12....There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts."
The view taken by the judges in this matter was that the courts would not encourage such disputes."
16. Recently, in K. Subba Rao v. The State of Telangana 8, it was also observed that:-
"6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out."
17. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.
18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that 'all accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.
19. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17.
20. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law.
21. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged"
18. On the above premise, it is thus urged by the learned counsel for revisionist that the deposition of PW-1 Ramesh (first informant/father of deceased) is wholly vague as it is devoid of material particulars. According to the learned counsel for revisionist, PW-1 Ramesh, in his entire deposition before Court below, has not disclosed the manner in which, demand of additional dowry was made nor has he disclosed as to how and when physical cruelty was committed upon the deceased by the named/prospective accused. It is thus contended that in view of above, it cannot be said that either the complicity of the revisionist, a prospective accused has emerged in the crime in question or any strong and cogent evidence has emerged against revisionist to establish something more than mere complicity of the revisionist in the crime in question.
19. It is then contended by the learned counsel for revisionist that the revisionist has been summoned by Court below, under Sections 498-A, 304-B IPC and Sections ¾ Dowry Prohibition Act. However, from perusal of the statement of PW-1 Ramesh (first informant), it is apparent that the first informant has not discharged the primary burden to the effect that revisionist was present in the house at the time of occurrence which was obligatory upon him before impleading the revisionist in the crime in question. Once the primary burden has not been discharged, the prosecution cannot rely upon the provisions contained in Section 106 of the Evidence Act qua the complicity of the revisionist in the crime in question by drawing a presumption against him regarding his presence at the time and place of occurrence. To buttress his submission, he has relied upon the following judgments;-
(i). Balvir Singh Vs. State of Uttarakhand, 2023 SCC OnLine SC 1261,
(ii). Nasir @ Fuddan Vs. State of U.P., 2018 ACC (Suppl.) 528 (Paragraphs 25 and 26),
(iii). Sunil Kumar Vs. State of U.P., 2022 SCC OnLine All 1249 (Paragraphs 17 to 22),
(iv). Kailas @ Kalyan Badrinath Pawar Vs. The State of Maharashtra, 2023 SCC OnLine Bom 1312 and
(v). Dr. (Smt.) Nupur Talwar Vs. State of U.P.), 2017 SCC OnLine All 2222 (Paragraphs 233 and 248).
20. On the cumulative strength of above, he, therefore, contends that Court below while passing the order impugned has not only committed a jurisdictional error but has also exercised it's jurisdiction with material irregularity which has vitiated the order impugned. It is thus urged by the learned counsel for revisionist that the order impugned in present criminal revision is manifestly illegal and in excess of jurisdiction and consequently, the same is unsustainable in law and fact. As such, the same is liable to be set aside by this Court.
21. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Ankit Agarwal, the learned counsel representing first informant-opposite party-2 have vehemently opposed the present criminal revision. They submit that it is an undisputed fact that the revisionist is the husband of deceased. The marriage of the deceased was solemnized with the revisionist on 18.04.2018, whereas, the incident giving rise to present criminal proceedings occurred on 02.03.2020 i.e. even before expiry of a period of 2 years from the date of marriage of the deceased. By reason of above, the death of deceased is a dowry death. Since the revisionist is the husband of deceased, therefore, the burden is upon the revisionist himself to explain his innocence in terms of Section 113-B of the Evidence Act. The said burden can be discharged by the revisionist only when he appears before Court below and not otherwise. In view of above and the attending circumstances as noted in the order impugned, no illegality can be said to have been committed by Court below in summoning the revisionist, who is a prospective accused/husband of deceased. As such, the present criminal revision is liable to be dismissed.
22. Having heard Mr. Amit Daga, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, Mr. Ankit Agarwal, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that the primary issue, which arises for determination in present criminal 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 within the established parameters or not?
23. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by the Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Five Judges Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Five Judges 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). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177,
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xii) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17 (xvi) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xvi) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323, (xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301 (xx) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xxi) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xxii) 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.
(xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537 (xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.
(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375 (xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172 (xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
24. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 19.07.2022 passed by Additional District and Sessions Judge/F.T.C., Court No.-3, Moradabad in Sessions Trial No. 1229 of 2020 (State Vs. Shanker Lal), under Sections 498-A, 304-B IPC and Sections ¾ Dowry Prohibition Act, Police Station-Majhola, District-Moradabad, whereby revisionists have been summoned under Section 319 Cr.P.C. to face trial in above-mentioned Sessions Trial.
25. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
26. 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).
27. 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).
28. A prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness without getting his examination-in-chief recorded, vide Five Judges Bench judgment in Hardeep Singh (Supra).
29. The Court while summoning a prospective accused must come to the conclusion that a prima-facie case for summoning of a prospective accused is made out and in this regard, the Court must record it's satisfaction in consonance with the observation made in paragraph 106 of the judgment in Five Judges Bench judgment in Hardeep Singh (Supra).
30. Though in view of the law laid down by the Five Judges Bench in Hardeep Singh (Supra) that a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness but in case, if the statement of the witness, who have deposed before Court below, was also recorded under Section 161 Cr.P.C. then in such a circumstance, the Court must draw a parallel in between the deposition of the witness as well as his statement under Section 161 Cr.P.C. to find out whether something new has emerged in the deposition or not, vide Brijendra Singh (Supra).
31. The Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as it is a relevant material, vide Brijendra Singh (Supra).
32. A prospective accused can be summoned only if, an inference of guilt of the accused can be drawn as per the material on record, vide Brijendra Singh (Supra).
33. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).
34. A prospective accused should not be summoned by a Court by exercising it's jurisdiction in a casual and cavalier fashion but diligently, vide S Mohammad Ishpahani (Supra).
35. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence has emerged against a prospective accused and not merely on the basis of his complicity in the crime in question, vide S Mohammad Ishpahani (Supra).
36. In the judgments referred to above, there is a common thread that the Court can scrutinize the evidence/material on record while exercising power under Section 319 Cr.P.C.
37. 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).
38. 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).
39. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh (Supra) 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.
40. 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.
41. 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 319 CrPC 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.
42. 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).
43. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 IPC and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C.
44. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of PW-1, Ramesh (first informant/father of deceased), the revisionist 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 fashion."
45. Before proceeding to examine and evaluate the deposition of PW-1 Ramesh (first informant/father of deceased) before Court below and the other material collected by the Investigating Officer durinig course of investigation, it may be noticed that a Five Judges Bench of the Supreme Court in Hardeep Singh (Supra) has laid down the parameters regarding exercise of jurisdiction under Section 319 Cr.P.C.
46. The Bench has observed that a prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness alone and the Court need not wait for the entire prosecution evidence to be recorded. In the case in hand, the application under Section 319 Cr.P.C. for summoning the prospective accused i.e. the revisionist herein was filed after the statement-in-chief of PW-1 was recorded and not after the entire prosecution evidence had been recorded. In view of the law laid down by the Apex Court as noted herein above, no illegality can be said to have been committed by Court below in deciding the application under Section 319 Cr.P.C. in the light of deposition of a single prosecution witness i.e. PW-1.
47. It has also been laid down by the Bench in aforementioned judgment that a prospective accused can be summoned only after the Court records it's satisfaction to the effect that a prima-facie case for summoning the prospective accused is made out. What will be the nature of satisfaction that is required to be observed by a Court before summoning a prospective accused is no longer shrouded in obscurity but stands crystallized in paragraph 106 of the report. For ready reference, the same is extracted 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."
48. The Court has now to consider as to whether the satisfaction, which is required to be observed could have been observed on the basis of the deposition of PW-1 Ramesh (first informant/father of the deceased). Upon evaluation of the deposition of PW-1, this Court finds that the statement of PW-1 was also recorded under Section 161 Cr.P.C. However, in his aforesaid previous statement, the first informant has not alleged that demand of additional dowry was also made by the present revisionist nor has he alleged that physical and mental cruelty was committed upon the deceased by the prospective accused i.e. the revisionist on account of deficient dowry having been given at the time of marriage. In fact, the revisionist, who is the son-in-law of the first informant, has neither been nominated as a named accused in the FIR nor any allegation has been made against him in the body of FIR.
49. It is well settled that though the FIR is not the encyclopedia of the prosecution case but it must disclose the basic prosecution case. Admittedly, as per the basic prosecution case, the revisionist is nowhere found in the picture. The first informant in his statement recorded under Section 161 Cr.P.C. has supported the basic prosecution case and has not stated any fact against the revisionist, a prospective accused. However, for the first time, the first informant in his deposition before Court below has deposed against the revisionist, a prospective accused. It is thus apparent that the first informant has departed from the basic prosecution case as unfolded in the FIR but no explanation has been offered by the first informant in his deposition before Court below regarding the departure so made.
50. When the deposition of PW-1 Ramesh (first informant/father of the deceased) is examined in the light of the observations made by the Apex Court in the case of Kahkashan Kausar (Supra), this Court finds that the statements made by the first informant in his deposition before Court below insofar as they relate to the present revisionist are vague and bald inasmuch as, the same are devoid of material particulars. In his entire deposition before Court below, the first informant has nowhere stated as to how and when the alleged demand of additional dowry was made nor has he explained as to how and when cruelty was committed upon the deceased for deficient amount of dowry having been given at the time of marriage. The aforesaid fact assumes importance in the present scenario inasmuch as, there is nothing on record to show that any legal action or otherwise was undertaken by the first informant/father of the deceased against the prospective accused for committing cruelty upon the deceased. As such, even though allegations regarding demand of dowry and commission of cruelty upon the deceased have emerged against the revisionst, a prospective accused in the deposition of PW-1 but in view of the facts as noted above as well as the cuation given by the Apex Court in Kahkashan Kausar (Supra), the said statement occurring in the deposition of PW-1 insofar as relates to the present revisionist/prospective accused are not worthy of credit. In view of above, it can be safely concluded that not even the complicity of the prospective accused i.e. the revisionist has emerged in the crime in question and therefore, no strong and cogent evidence has emerged against the revisionist either.
51. Learned A.G.A. in spite of his vehement opposition to this criminal revision could not overcome the objections raised by the learned counsel for revisionist to the order impugned, which have been noted herein above.
52. In view of the discussions made above, the inescapable conclusion is that the revisionist, who is a prospective accused, has not been nomiated as a named accused by the first informant (father-in-law of revisionist) in the FIR, even when the FIR was lodged with delay by the first informant himself nor any allegations regarding demand of additional dowry/commission of physical and mental cruelty upon the deceased by the revisionist have been made in the FIR. The first informant in his statement recorded under Section 161 Cr.P.C. has only supported the FIR and has not implicated the revisionist in any manner in the crime in question. The statements made by the first informant before Court below as PW-1 insofar as they relate to the present revisionist have emerged for the first time. As such, the said facts were never subjected to investigation of concerned case crime number. Consequently, the complicity of the revisionist in the crime in question is sought to be alleged on the basis of non existent facts. As such, it cannot be conclusively concluded that strong and cogent evidence has emerged against the revisionist, which is much more than his mere complicity in the crime in question. In view of above, no inference regarding the guilt of the prospective accused i.e. the revisionist can be inferred.
53. As a result, the present criminal revision succeeds and is liable to be allowed.
54. It is, accordingly, allowed.
55. The order impugned dated 19.07.2022 passed by Additional District and Sessions Judge/F.T.C., Court No.-3, Moradabad in Sessions Trial No. 1229 of 2020 (State Vs. Shanker Lal), under Sections 498-A, 304-B IPC and Sections ¾ Dowry Prohibition Act, Police Station-Majhola, District-Moradabad, is, hereby, set aside.
56. Considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 08.07.2024 Vinay