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2011 DIGILAW 743 (UTT)

SULEMAN v. STATE OF UTTARANCHAL

2011-12-22

SERVESH KUMAR GUPTA

body2011
Judgment Heard Mr. Navneet Kaushik, Advocate for the revisionist and Mr. P.S. Bohara, Brief Holder for the Statelrespondent nos.1 & 2. However, none has turned up on behalf of respondent noj/complainant even in the revised call. 2. This revision has been directed against the order dated 13.8.2004 passed by FTC-II/Additional Sessions Judge, Haridwar in S.T. No.216 of 1998, State Vs. Mustakim and others. 3. The said trial was being proceeded against the accused persons, namely,Mustakeem, Rehman, Rijwan and Rajpal for the offence of Sections 147, 148 and 307 IPC r/w Section 3(10) of SC/ST Act, pertaining to P.S. Bhagwanpur, District Haridwar. However, during trial, the statement of PW1 Raddi was recorded and after his chief examination was reduced into writing, an application was moved u/s 319 CroP.C. on 4.12.2003 by informant Raddi with the prayer that accused Suleman has been named in the chief examination by this witness, so he should also be summoned by the court, exercising its powers u/s 319 Cr.P.C. The court concemed was of the view that since PW1 Raddi has still not been cross-examined’ (and that the examination-in-chief of other witnesses, namely, Shankar, Kalu, Jagpal and Dharam Singh was yet to be done, so it was expedient to dispose of the said application after the cross-examination of PW1 Raddi and also after the examination of other witnesses in the court. This way, the said application moved u/s 319 Cr.P.C. remained pending. After almost three months on 3.6.2004, another similar application was moved by informant Raddi with the contents that the accused Suleman is a very influential person, so he has won over the other witnesses of fact, namely, Shankar, Kalu and Jagpal, and as such, the order of their discharge may be passed. Simultaneously, an application was moved by Sri Deep Singh, Advocate on behalf of informant Raddi, with the contents that the injured Musaddi (real brother of informant) has succumbed to the injuries suffered by him in the alleged incident dated 10.10.1995, caused by the accused persons. 4. This application was resisted by other accused persons who were being tried, nevertheless they did not have any locus standi to oppose the same, but even so, the court below heard the leamed counsel of other parties and passed the impugned order dated 13.8.2004. 4. This application was resisted by other accused persons who were being tried, nevertheless they did not have any locus standi to oppose the same, but even so, the court below heard the leamed counsel of other parties and passed the impugned order dated 13.8.2004. The Court exercised its powers u/s 319 Cr.P.C. and summoned the accused Suleman for the same offences, asking him to stand trial along with other co-accused. 5. Learned counsel for the revisionist has relied upon two precedents of the Hon’ble Apex Court, (1) “Lal Suraj @ Suraj Singh and another Vs. State of Jharkhand reported in (2009) 2 SCC 696" and (2) Sarabjit Singh and another Vs. State of Punjab & another, reported in 2009 (3) RCR (Criminal) 388. In both the precedents, the Hon’bleApex Court was of the view that powers, u/s 319 Cr.P.C. should be exercised very cautiously and sparingly, when there is a fairchance of conviction ofthe prospective accused. In Lal Suraj case (Supra), the Hon’bleApex Court set aside the order of the trial court as well as of the High Court, wherein the powers u/s 319 Cr.P.C. were exercised to summon the persons on the deposition of two witnesses. In that case, first witness PW6 was not an eyewitness to the occurrence whereas, PW7 was only a hearsay witness. So, in that eventuality, the Hon’ble Apex Court was of the view that there was no possibility of recording the judgment of conviction against the appellants. This was the basis of setting aside the orders passed by the trial court u/s 319 Cr.P.C., which was refused to be intervened by the High Court. 6. In the second precedent of Sarabjit Singh’s case, the Hon’ble Apex Court has laiddown only the general principle that the powers should be exercised very cautiously and sparingly. There cannot be any doubt that these powers are very Significant one and should be exercised with great caution and circumspection by the Court. Butthe powers are there to check the injustice or to prevent the abuse of powers by the investigating agency. There cannot be any doubt that these powers are very Significant one and should be exercised with great caution and circumspection by the Court. Butthe powers are there to check the injustice or to prevent the abuse of powers by the investigating agency. Vide the impugned order, the court below found it expedient in- the interest of justice to summon the revisionistfor the offences, stated hereinabove, and has stated the grounds too in the body of the order for summoning the accused u/s 319 Cr.P.C. That apart, other witnesses have connived with the revisionist Suleman due to his influence because he occupies the position of Pradhan of a Village, so none can dare to go against the wishes of a Pradhan under his influence. Fortiori, the injury reports are’ also there which includes the lacerated wound, and it has been categorically stated in the FIR as well as in the statement of informant Raddi in his examination-in-chief that the revisionist Suleman was there, being armed with an iron rod in his hand, and by the said weapon, he gave a blow of rod upon the body of injured Musaddi, who, later on, after a long treatment, succumbed to his injuries. The statement recorded by the Investigating Officer, under Section 161 Cr.P.C., also names the revisionist Suleman with his role, as deposed by witness Raddi, in the court. In view of this Court too, there is availableagainst the revisionist and the lower court was quite justified while exercising its powers under Section 319 Cr.P.C. If the lower court is restrained, even in such circumstances, to exercise its powers as such, then the highhandedness of the investigating agency will be encouraged,and in such cases, only a Sub Inspector will determine the fate of the accused persons who are allegedly involved in the crime. 7. The attention of the Court has also been drawn towards an FIR lodged by one Mehboob Ali, who is the resident of same village, against Musaddi (who has now died) on 10.10.1995 at about 10 PM. The incident is also of the same day at 8:30 PM, where Musaddi was implicated for the offence of Sections 376/511 IPC and in the said FIR, the revisionist Suleman (prospective accused who has been summoned u/s 319 Cr.P.C.) was a witness. The incident is also of the same day at 8:30 PM, where Musaddi was implicated for the offence of Sections 376/511 IPC and in the said FIR, the revisionist Suleman (prospective accused who has been summoned u/s 319 Cr.P.C.) was a witness. This fact cannot be determined while hearing this revision and the question is left to be assessed by the court below while assessing the evidence against the revisionist during trial. 8. For the reasons as aforesaid, the revision is devoid of any merits and liable to be dismissed. It is, accordingly, dismissed. Needless to mention that the interim order dated 26.8.2004 has already been vacated by this Court. Information be sent to the court below forthwith to proceed accordingly.