Allahabad High Court
Rajesh @ Rakesh vs State Of U.P. And 3 Others on 24 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:94695 Court No. - 77 Case :- CRIMINAL REVISION No. - 5506 of 2023 Revisionist :- Rajesh @ Rakesh Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Ajay Nand Pandey Counsel for Opposite Party :- G.A.,Sunil Kumar Dubey Hon'ble Rajeev Misra,J.
1. Heard Mr. Ajay Nand Pandey, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Sunil Kumar Dubey, the learned counsel representing opposite parties 2 and 3.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 19.01.2023 passed by Additional District and Sessions Judge, Baghpat, in Sessions Trial No. 278 of 2013 (State Vs. Yunus and others) arising out of Case Crime No. 861 of 2012, under Sections 328, 406, 506 IPC, Police Station-Badaut, District-Baghpat, whereby Court below has rejected the application dated 19.01.2023, under Section 319 Cr.P.C. (Paper No. 54-B) filed by the prosecution/first informant/revisionist for summoning the prospective accused i.e. opposite parties 2 and 3 herein to face trial in aforementioned Sessions Trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 17.08.2012, a delayed F.I.R. dated 26.10.2012 was lodged by first informant, Rakesh @ Rajesh and was registered as Case Crime No. 861 of 2012, under Sections 328, 504, 506, 406 IPC, Police Station-Badaut, District-Baghpat. In the aforesaid F.I.R., 3 persons namely- (1) Yunus, (2) Zaheer and (3) Naim have been nominated as named accused.
5. It is apposite to mention here that aforementioned FIR came to be registered subsequent to an order passed by concerned Magistrate in exercise of jurisdiction under Section 156(3) Cr.P.C.
6. The gravamen of the allegations made in the F.I.R. is to the effect that Yunus, Zaheer and Naim administered some stupefying substance alleging it to be medicine to the first informant with an intention to cause her death.
7. 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. Accordingly, Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that complicity of only one of the named accused i.e. Yunus is established in the crime in question. He, accordingly, submitted the police report dated 15.12.2012 under Section 173 (2) Cr.P.C., whereby aforementioned named accused has been charge-sheeted under Sections 328, 504, 506 IPC, whereas the other two named accused were exculpated.
8. After aforementioned police report was submitted, concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. took cognizance upon same. However, as offence complained of is exclusively triable by the Court of Sessions, consequently, the concerned Magistrate, in line with Section 209 Cr.P.C., committed the case to the Court of Sessions. As a consequence of above, Sessions Trial No. 278 of 2013 (State Vs. Yunus and others) arising out of Case Crime No. 861 of 2012, under Sections 328, 406, 506 IPC, Police Station-Badaut, District-Baghpat came to be registered and is now said to be pending in the Court of Additional District and Sessions Judge, Baghpat.
9. The concerned Sessions Judge, as per the mandate of Section 211 Cr.P.C., framed charges against the charge-sheeted accused, who denied the same and pleaded innocence. Resultantly, the trial procedure commenced.
10. Prosecution in discharge of it's burden to bring home the charges so framed against charge-sheeted accused, adduced PW-1 Rakesh @ Rajesh (first informant/victim), PW-2 Yogendra and PW-3 Naresh, up to this stage.
11. After the statement-in-chief/examination-in-chief of aforementioned witnesses were recorded, the prosecution (first informant/victim) filed an application dated 23.03.2022 under Section 319 Cr.P.C. praying therein that since as per the depositions of aforementioned witneses, the complicity of other two named but not charge sheeted accused namely Zaheer and Naim is also established in the crime in question, therefore, they be also summoned to face trial in aforementioned Sessions Trial. This application came to be registered as Paper No. 54-B.
12. Aforementioned application dated 23.03.2022 was opposed by the charge sheeted accused Yunus, who filed his objections (Paper No.-54-B) to the same.
13. Court below upon evaluation of the allegations made in the application dated 23.03.2022, under Section 319 Cr.P.C. in the light of depositions of PW-1, PW-2 and PW-3 came to the conclusion that no case for summoning of the prospective accused is made out. The said conclusion was drawn by Court below upon evaluation of the depositions of aforementioned 3 prosecution witnesses. Court below on the basis of aforesaid exercise undertaken by it concluded that as per the examination-in-chief of PW-1 Rakesh @ Rajesh, she had given a phone call to her nephew (Bhanja), who came after half an hour, but 10 minutes before the arrival of Yogendra and Naresh. PW-2 Yogendra in his statement-in-chief, has stated when he reached, he met Rajesh and his nephew Naresh in the courtyard (Chabutara). It is, thereafter, that the stupefying susbstance was administered by Yunus and his two sons Zaheer and Naim to Rajesh. PW-3 Naresh, in his statement-in-chief, has clearly admitted that he is not the eye witness of the occurrence but was informed about the occurrence by the victim. Accordingly, vide order dated 19.01.2023 passed by Additional District and Sessions Judge, Baghpat, the aforementioned application dated 23.02.2022 under Section 319 Cr.P.C. filed by the first informant/victim/revisionist was rejected.
14. Thus, feeling aggrieved by the above order dated 19.01.2023 passed by Court below, revisionist has now approached this Court by means of present criminal revision.
15. Mr. Ajay Nand Pandey, the learned counsel for revisionist submists that the order impugned in present criminal revision is manifestly illegal and therefore, liable to be set aside by this Court. According to the learned counsel for revisionist, the complicity of the named but not charge sheeted accused namely Zaheer and Naim is fully established in the crime in question as per the depositions of PW-1 Rakesh @ Rajesh (victim/first informant) and PW-2 Yogendra. As such, a prima-facie case for summoning the prospective accused is clearly made out. However, irrespective of above, the Court below has rejected the application under Section 319 Cr.P.C. filed by the revisionist. He, therefore, contends that Court below has thus erred in law and fact in rejecting the application under Section 319 Cr.P.C. filed by the prosecution.
16. It is then contended that Court below while rejecting the application under Section 319 Cr.P.C. filed by the revisionist has not adverted to the facts and circumstances of the case and also the true import of the depositions of PW-1 and PW-2. Court below, on the basis of superficial findings, has rejected the application under Section 319 Cr.P.C. filed by the revisionist. Court below has thus failed to exercise it's jurisdiction diligently. To the contrary, Court below in a casual and cavalier fashion has rejected the application under Section 319 Cr.P.C. filed by the revisionist. As such, the order impugned cannot be sustained and is therefore, liable to be set aside by this Court.
17. Per contra, the learned A.G.A. for State-opposite party-1 and the learned counsel representing opposite parties 2 and 3 have vehemently opposed the present criminal revision. They submit that the order impugned in present criminal revision is perfectly just and legal. Court below has rejected the application under Section 319 Cr.P.C. filed by the revisionist/first informant/victim upon due evaluation of the depositions of PW-1, PW-2 and PW-3. It is on the basis of above that Court below has concluded that no case for summoning the prospective accused is made out. In view of above, it cannot be said that Court below while passing the order impugned has failed to consider the relevant material or has rejected the application under Section 319 Cr.P.C. filed by the revisionist on irrelevant consideration. As per the deposition of PW-3, he is not an eye witness of the occurrence. Therefore, his deposition is totally irrelevant regarding the time, place and manner of occurrence. There is inconsistency in the depositions of PW-1 and PW-2, as such, no cast-iron case was made out for summoning the prospective accused. They, therefore, submit that since the order impugned is in consonance with law inasmuch as, the Court below on the basis of material on record could not opine that a prima-facie case for summoning the prospective accused is made out, therefore, no illegality can be said to have been committed by Court below in passing the order impugned. As such, the present criminal revision is liable to be dismissed by this Court.
18. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, the learned counsel representing opposite parties 2 and 3 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?
19. 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) 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 (Five Judges Bench), 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 (xxviii). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
20. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 19.01.2023 passed by Additional District and Sessions Judge, Baghpat, in Sessions Trial No. 278 of 2013 (State Vs. Yunus and others) arising out of Case Crime No. 861 of 2012, under Sections 328, 406, 506 IPC, Police Station-Badaut, District-Baghpat, whereby the application dated 19.01.2023 under Section 319 Cr.P.C. filed by the revisionist has been rejected.
21. Before proceeding to do so, it must be noticed that following issues stand settled as per the judgements of Supreme Court mentioned herein above and, therefore, they are not required to be dealt with by this Court.
22. 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).
23. 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).
24. 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 Hardeep Singh (Supra).
25. 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 Hardeep Singh (Supra).
26. 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).
27. 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).
28. 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).
29. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly vide S Mohammad Ishpahani (Supra).
30. 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).
31. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence had emerged against a prospective accused and not merely on the basis of his complicity in the crime in question vide S Mohammad Ishpahani (Supra).
32. In the judgments referred to above, there is a common thread that the Court can scrutinized the evidence on record while exercising power under Section 319 Cr.P.C. Further a prospective accused can be summoned only if a prima-facie case for summoning of a prospective accused is made out.
33. 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).
34. 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).
35. 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.
36. 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.
37. 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.
38. 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).
39. 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 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.
40. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of PW-1 Rakesh @ Rajesh (first informant/victim), PW-2 Yogendra and PW-3 Naresh, the prospective accused i.e. opposite parties 2 and 3 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."
41. From perusal of the order impugned, this Court finds that Court below has considered the application under Section 319 Cr.P.C. filed by the prosecution/first informant/victim/revisionist on the basis of the depositions of PW-1 Rajesh @ Rakesh, PW-2 Yogenra and PW-3 Naresh and not after the entire prosecution evidence was recorded. However, irrespective of above, the order impugned cannot be impeached on the aforesaid ground. A Five Judges Bench of the Supreme Court in Hardeep Singh (Supra) has held that an application under Section 319 Cr.P.C. can be considered by the Court concerned only on the basis of the statement-in-chief of one prosecution witness. Apart from above, since the cross examination of PW-1, PW-2 and PW-3 had been recorded, therefore, their depositions before Court below shall fall in the realm of legal evidence. In view of above, no illegality can be said to have been commnitted by Court below in deciding the application under Section 319 Cr.P.C., on the basis of the depositions of PW-1, PW-2 and PW-3.
42. The second issue which arises for consideration by this Court is whether the Court while dealing with an application under Section 319 Cr.P.C. is to record it's sastisfaction that a prima-facie case is made out for summoning the prospective accused and if so what will be the nature of such satisfaction, which is required to be recorded by Court below before summoning a prospective accused. The aforesaid issues which are interlinked and intertwined are also no longer res-integra and stand concluded by the Five Judges Bench judgment of the Supreme Court in Hardeep Singh (Supra). The Court while dealing with the aforesaid issue has observed in unequivocal terms that the Court while dealing with an application under Section 319 Cr.P.C. has to record it's satisfaction that a prima-facie case is made out for summoning the prospective accused. What will be the nature of such satisfaction, which is required to be observed by a Court before summoning a prospective accused has been crystallized by the Five Judges Bench in paragraph 106 of the report. For ready reference, the same is reproduced herienunder:-
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.
43. When the order impugned is examined in the light of the depositions of PW-1, PW-2 and PW-3, which are on record as Annexure-4 to the affidavit collectively, this Court finds that PW-1 and PW-2 have clearly supported the FIR. It is the prosecution case as unfolded in the FIR that the three named accused administered some stupefying substance alleging it to be medicin to the first informant/victim. Admittedly, one of the named accused Yunus, who has been assigned the same criminality has alreardy been charge sheeted. The Court below without recording a finding that the presence of the named but not charge sheeted accused/prospective accused Zaheer and Naim is not established at the time and place of occurrence, on a superficial dichotomy drawn by Court below with reference to the depositions of PW-1 and PW-2 has rejected the application under Section 319 Cr.P.C. filed by the prosecution/first informant/victim. It is apposite to mention here that Court below in the impugned order has itself recorded a finding that as per the deposition of PW-2, the prospective accused i.e. opposite parties 2 and 3 herein were also present at the time and place of occurrence and they also were involved in administering the stupefying substance alleging it to be medicine to the victim/first informant. By reason of above, the presence of the prospective accused was established, which prima-facie was with a common object i.e. to administer the stupefying substance to the victim alleging it to be medicine. Yet in spite of above, the Court below has rejected the application under Section 319 Cr.P.C. filed by the prosecution/first informant. As such, the order impugned cannot be sustained.
44. In view of the discussion made above, this Court is now not required to deal with the caution given by the Apex Court in the case of Brijendra Singh (Supra), S Mohammad Ishpahani (Supra) and Five Judges Bench judgment in Sukhpal Singh Khaira (Supra) inasmuch as, it is not only the complicity of the prospective accused, which is established in the crime in question but also strong and cogent evidence has emerged against them regarding the criminality committed upon the victim/first informant.
45. As a result, the present criminal revision succeeds and is liable to be allowed.
46. It is, accordingly, allowed.
47. The order impugned dated 19.01.2023 passed by Additional District and Sessions Judge, Baghpat, in Sessions Trial No. 278 of 2013 (State Vs. Yunus and others) arising out of Case Crime No. 861 of 2012, under Sections 328, 406, 506 IPC, Police Station-Badaut, District-Baghpat is hereby set aside.
48. The matter shall stand remanded to Court below for decision afresh in the light of the observations made herein above. The necessary exercie shall be undertaken by Court below within a period of one month from the date of production of a certified copy of this order.
49. However, considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 24.5.2024 Vinay