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2010 DIGILAW 271 (ALL)

SATENDRA KUMAR v. STATE OF U P

2010-01-22

RAM AUTAR SINGH

body2010
RAM AUTAR SINGH, J. ( 1 ) I have heard Sri Jagdeo Singh, learned counsel for the revisionist, learned AGAfor respondent No. 1 on this revision and perused the record. Notice on respondent No. 2, Satyabir Singh has been served, but none for him has appeared. No counter affidavit has been filed on behalf of respondent No. 2. ( 2 ) THIS revision has been filed against order dated 24. 5. 2001, passed by learned Sessions Judge, Bijnore, on an application moved under Section 319, cr. P. C. to summon the revisionist as an accused in Sessions Trial No. 287 of 1999 (State v. Nipendra and others), pending in the Court of District and Sessions judge, Bijnore. ( 3 ) IT transpires from the record that Sessions Trial No. 287 of 1999 (State v. Nipendra and others), under Sections 364, 302,201, IPC, P. S. Haldor is pending in the Court of District and Sessions Judge, Bijnore, in which Rohtas, Jabar Singh and Satendra Kumar were nominated as accused in the FIR, but the Investigating Officer did not submit chargesheet against them and during trial the statements of P. W. 1, Satyabir Singh, P. W. 2 Mohan were recorded and both of them named them as accused involved in the said crime. The prosecution moved an application under Section 319, Cr. P. C. with prayer to summon accused Rohtas, jabar Singh and Satendra Kumar to face trial in the said case, aggrieved by which Satendra Kumar filed this revision. ( 4 ) THE learned counsel for the revisionist contended that according to the prosecution case on 20. 2. 1999 one Sri Kamendra Singh, S/o Sri Tota Ram Singh had gone to Bijnore and when he did not come back, his father Tota Ram Singh informed the Police of P. S. Haldor on 13. 3. 1999 that his son Kamendra Singh was missing since 20. 2. 1999. This information was recorded in the hand-writing of one Sri Nirpendra Singh. On 28. 3. 1999 O. P. No. 2 Satyabir Singh lodged an fir at P. S. Haldor alleging therein that he had come to know from Nirpendra singh and Mohan Singh that on 20. 2. 1999 his brother Kamendra Singh was seen going with Rohtash and Jabar Singh on one scooter and the revisionist alongwith them was also going on separate scooter. On 31. 3. 2. 1999 his brother Kamendra Singh was seen going with Rohtash and Jabar Singh on one scooter and the revisionist alongwith them was also going on separate scooter. On 31. 3. 1999, first informant Satyabir singh informed the police through written report that he found a left shoe and key ring of Kamendra Singh and there was a piece of human like body near restaurant of accused Nirpendra. Accused Rohtas and Jabar Singh were arrested by police in this case on 6. 4. 1999 and the investigation of the case was transferred to SI abhilesh Singh of P. S. Nehtor. During investigation he recorded the statement of smt. Shakuntala Devi and Smt. Savita Devi mother and wife of Kamendra Singh deceased on 22. 4. 1999. The Investigating Officer also recorded the statements of manohar Singh, who admitted their involvement in murder of Kamendra Singh. Thereafter the Investigating Officer recovered the dead body of Kamendra Singh on the pointing out of Nirpendra Singh and two others on 24. 4. 1999. The investigating Officer also recorded the statements of one Manohar Singh, who stated that he had seen the incident of committing murder of Kamendra Singh on 20. 2. 1999. The Investigating Officer then submitted final report in favour of Rohtas singh, Jabar Singh and Satendra Kumar under Section 169, Cr. P. C. which was accepted by the Magistrate and these accused persons were released. The investigating Officer recorded the statement of Rohtash Singh, in which he taking plea of alibi stated that on the alleged date of incident he was in Lucknow and he was falsely implicated in the case due to enmity. Thereafter the case was committed to the Court of sessions against Nirpendra, Hamendra and Chandra Shekhar under Sections 364, 302, 201, IPC. The prosecution then examined Satyabir singh as P. W No. 1 and Mohan as P. W. 2. The learned counsel further contended that both of them denied of having seen any occurrence and thus evidence was based on hearsay information and an application moved under Section 319, Cr. P. C. could not have been allowed on the basis of such evidence which could not involve the applicant in the said case. ( 5 ) THE learned counsel for the revisionist relied on Mohd. P. C. could not have been allowed on the basis of such evidence which could not involve the applicant in the said case. ( 5 ) THE learned counsel for the revisionist relied on Mohd. Shafi v. Mohd Rafiq and another, 2007 (58) ACC 254 wherein the Honble Apex Court held the following principle: "from the decisions of this Court, noticed above, it is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider the evidence. " ( 6 ) THE learned counsel for the revisionist further relied on Krishnappa v. State of Karnataka, (2004) SCC 792 wherein the Honble Apex Court held : "the power to summon an accused is an extraordinary power conferred on the Court. It is discretionary and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. Though an order under Section 319, Cr. P. C. summoning a person can be made on fulfilment of the conditions stipulated therein even when the proceedings had earlier been quashed, but in the present case the Magistrate did not dismiss the application merely on the ground of the proceedings having been quashed against the applicant. The trial magistrate was right in rejecting the application. The incident was of the year 1993. Seventeen witnesses had been examined. The statement of the accused under Section 313, Cr. P. C. had been recorded. The role attributed to the appellant, as per the impugned judgment of the High Court, was of instigation. The Magistrate by a detailed order after examination of the evidence dismissed the application inter alia on noticing that on event the possibilities of appellant being convicted were remote. The trial Court cannot be said to have misused the discretion under Section 319, Cr. P. C. illegally, hence High Courts interference in exercise of revisional jurisdiction was not called for. The Magistrate by a detailed order after examination of the evidence dismissed the application inter alia on noticing that on event the possibilities of appellant being convicted were remote. The trial Court cannot be said to have misused the discretion under Section 319, Cr. P. C. illegally, hence High Courts interference in exercise of revisional jurisdiction was not called for. " ( 7 ) THE Honble Apex Court in Hardeep Singh v. State of Punjab and others, 2009 (65) ACC 768 observed as below and referred the matter to a Bench of three honble Judges for consideration of following two questions: "78. In Krishnappa, it was observed that such power should be exercised if there are compelling reasons and in Mohd. Shafi this Court had held that such power can be exercised only if the Court is satisfied that the accused so summoned is in all likelihood would be convicted. The test formulated in mohd. Shafi substantially curtails discretionary power of the Court conferred by thecode under sub-section (1) of Section 319. Even on this point, therefore, the matter requires fresh consideration. We therefore, refer the following two questions for the consideration of a bench of three Honble Judges: (1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under section 319 is not maintainable unless the cross-examination of the witness is complete? (2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted? 79. We direct the Registry to place the matter before the Honble the chief Justice of India for taking an appropriate action. " ( 8 ) IN the present case, prosecution examined Satyabir Singh as P. W. 1 and mohan Singh as P. W. 2 and thereafter moved an application under Section 319, cr. P. C. with prayer to summon Rohtas, Jabar Singh and Satyendra Kumar to face trial in above sessions trial No. 287 of 1999 on the ground that these witnesses were nominated as accused in FIR but the Investigating Officer did not submit chargesheet against them. P. C. with prayer to summon Rohtas, Jabar Singh and Satyendra Kumar to face trial in above sessions trial No. 287 of 1999 on the ground that these witnesses were nominated as accused in FIR but the Investigating Officer did not submit chargesheet against them. It was further alleged in the application that on the basis of statements of Satyabir Singh and Mohan recorded in the trial Court these accused persons were found involved in commission of offences under sections 364, 302, 201, IPC. ( 9 ) A perusal of record would show that the learned Sessions Judge in cryptic manner passed the order under revision without looking to the evidence of witnesses on record, P. W. 1 Satyabir Singh categorically stated that on the basis of disclosure made by Mohan Singh and Nirpendra Singh about last seen of deceased Kamendra singh with accused persons he lodged an FIR at Police Station against them. P. W. 2 Mohan Singh ho doubt, stated that he had seen deceased Kamendra singh in the company of accused Rohtas, Jabar Singh and Satendra Kumar on 20. 2. 1999 at about 7 AM of Pavti Bus Stand near Khokha of Ranbir Singh, but he was not cross-examined on behalf of the accused persons. The prosecution did not examine Nirpendra another witness of the same fact and relying on the statements of these two witnesses moved an application under Section 319, cr. P. C. ( 10 ) THE Honble Apex Court in Mohd. Shafis case has held that the Court exercises its discretion in terms of Section 319 of Cr. P. C, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witnesses. ( 11 ) SIMILAR View has also been expressed by the Honble Apex Court in krishnappa v. State of Karnataka, but the Honble Apex Court in Hardeep Singh v. State of Punjab has referred the matter to larger Bench for consideration of two questions as mentioned above. No subsequent principle has been laid down by the Honble Apex Court, nor the above reference has been decided so far. Consequently the view expressed by the Honble Apex Court in Mohd. Shafis case is liable to be accepted at this stage. No subsequent principle has been laid down by the Honble Apex Court, nor the above reference has been decided so far. Consequently the view expressed by the Honble Apex Court in Mohd. Shafis case is liable to be accepted at this stage. ( 12 ) IN the present case P. W. 1 Satyabir Singh is a formal witness, who on the basis of disclosure made by Mohan and Nirpendra Singh about the factum relating to last seen of deceased with accused persons has lodged FIR. P. W. 2 Mohan singh has not been cross-examined by the accused persons during trial and prior to his cross-examination, application moved by prosecution under Section 319, cr. P. C. has been allowed, while in view of proposition of law laid down by the honble Apex Court, application under Section 319, Cr. P. C. should not have been allowed on the basis of prosecution witness/witnesses without their being cross-examined. Moreover, on the basis of the evidence of P. W. 2, Mohan about last seen it would be very difficult to convict the revisionist without any corroborative evidence. Under these circumstances, the learned trial Court has committed illegality in passing the order dated 24. 5. 2001. Consequently, this revision deserves to be allowed and impugned order dated 24. 5. 2001 is liable to be set aside. ( 13 ) THIS revision succeeds and is allowed as well as order dated 24. 5. 2001, passed by learned Sessions Judge, Bijnore on application moved under Section 319, Cr. P. C. in Sessions Trial No. 287 of 1999 (State v. Nirpendra and others) is set aside. ( 14 ) THE learned Sessions Judge is directed to get P. W. 2 cross-examined by the accused,persons and he may record further evidence in this regard. The Court below will not be debarred from passing any further order under Section 319, cr. P. C. in the light of above propositions of law laid down by the Honble Apex court. .