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2012 DIGILAW 611 (UTT)

Shyamveer v. State of Uttarakhand

2012-09-24

SERVESH KUMAR GUPTA

body2012
Judgment : Hon’ble Servesh Kumar Gupta, J. Heard learned Counsel for the parties and perused the papers on record. 2. The challenge in this petition is to the order dated 25.3.2010 passed by the Additional Sessions Judge/IV FTC, Haridwar in Sessions Trial No. 295/2005, State v. Monu Pahari & Others. 3. Facts, in brief, are that an FIR was lodged by Sushil Kumar, resident of village Belri Sallapur within the territorial jurisdiction of PS Kotwali Roorkee. This FIR was lodged against six persons, five of them, including the present accused applicant, were named, while one was unknown. Incident allegedly occurred on 11.2.2004 at 12.00 hours while the report was lodged on the next day (12.2.2004) at 3 pm i.e. almost after 27 hours of the alleged incident. Investigation culminated into submission of chargesheet, but only against four accused persons i.e. Monu Pahari, Pinki, Sanjay and Sandeep for the offences under Section 147, 308, 506 IPC. However, the Investigation Officer did not find any complicity of the applicant Shyamveer and one Padam Singh and, accordingly, these two persons were exonerated. Subsequently, the trial commenced. Informant Sushil Kumar was examined in the trial court, who in his statement named the accused persons including the present applicant Shyamveer and another exonerated person Padam Singh. He stated that these two persons were also present when his brother Aditya was being beaten. 4. After his examination, Sushil Kumar himself moved an application seeking invocation of the powers of the trial court under Section 319 CrPC and to summon Shyamveer and Padam Singh. Sushil KUmar stated in his application that Investigation Officer had absolved both these persons and did not chargesheet them while in the FIR their names were reported because all the seven accused persons were present on the scene of crime and they were assaulting his brother with an iron rod. 5. On moving the aforesaid application, the learned trial court passed the impugned order dated 25.3.2010 expressing its view that there appears to be a prima facie case against Shyamveer and Padam Singh. Accordingly, the trial court took cognizance of the matter and asked both these persons to stand trial for the offences under Section 147, 308, 506 IPC. 6. While arguing his case, learned Counsel for the accused applicant relied upon following two precedents: (i) Sarabjit Singh & Anr. Accordingly, the trial court took cognizance of the matter and asked both these persons to stand trial for the offences under Section 147, 308, 506 IPC. 6. While arguing his case, learned Counsel for the accused applicant relied upon following two precedents: (i) Sarabjit Singh & Anr. v. State of Punjab & Anr., reported in 2009 (2) UC 1105; (ii) Judgement dated 30.8.2010 passed by this Court in C482 Petition No. 361/2005. 7. On the other hand, learned Counsel for the complainant/respondent relied upon the Full Bench judgment of Hon’ble Apex Court in Y. Saraba Reddy v. Puthur Rami Reddy & Another, reported in (2007) 4 SCC 773 . 8. This Court has given its thoughtful consideration to the submissions advanced by learned Counsel for the parties and also carefully perused the aforecited judgments. 9. In the Sarabjit’s case, the Hon’ble Apex Court has also considered the case of Y. Saraba Reddy (relied upon by learned Counsel for the complainant) and laid down specific guidelines for exercising the powers under Section 319 CrPC. The Hon’ble Apex Court in para 17 and 18, has observed as under: “17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined: “…Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court…” An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court…” An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.” 10. Learned Counsel for the applicant also drawn attention of this Court towards the statements recorded by the Investigation Officer under Section 161 CrPC, which were made the basis for absolving the names of two persons, namely, Shyamveer and Padam Singh. Investigation Officer has asked specific questions from the informant as well as from the injured as to why Padam Singh and Shyamveer were implicated in the matter. Investigation Officer has asked specific questions from the informant as well as from the injured as to why Padam Singh and Shyamveer were implicated in the matter. Both of them replied that though they were not actually present on the spot, but they were implicated because of their longstanding animosity with these two persons. 11. Attention of this Court has also been drawn towards the papers pertaining to the various litigations between the parties which clearly suggest the inimical terms between Padam Singh and Shyamveer on the one side and the informant Sushil on the other side. 12. Learned Counsel on behalf of the private respondent has relied upon the precedent rendered by the Full Bench of Hon’ble Supreme Court. Having a look upon the law laid down by the Hon’ble Apex Court, it is very much clear without any doubt that the satisfaction of the Investigation Officer cannot be a determinative factor vis-à-vis the satisfaction of the Court. But at the same time, the Hon’ble Apex Court has also held that whatever be the worth of evidence of PW1 for the purpose of Section 319 CrPC was required to be analysed coupled with other factors available on the record. In the said case of Y. Saraba Reddy, the Full Bench of Hon’ble Apex Court turned down the decision of the Sessions Court as well as of the High Court in refusing to exercise the powers under Section 319 CrPC and observed that there was a basic fallacy in the approach of the High Court in sustaining the order of the trial court on the ground that there was seven years’ delay in moving the application under Section 319 CrPC. In that case, chargesheet was filed on 7.11.1997, charges were framed on 25.8.2003; PW1 was examined on 7.7.2004 and immediately after his evidence, an application under Section 319 CrPC was filed. In these circumstances, Hon’ble Apex Court observed that it was not proper for the Sessions Court or the High Court to reject the said application on the ground that there was delay in making the application since till the charges were framed application under Section 319 CrPC could not have been filed i.e. there was no occasion to move any such application. So, the High Court failed to notice this fact. So, the High Court failed to notice this fact. This was the main basis for turning down the order of the Sessions Court as well as of the High Court. In that case too, the Hon’ble Apex Court did not exclude the consideration of relevant factors along with the statement of PW1 while exercising the powers under Section 319 CrPC. 13. Undoubtedly, the statements recorded by the Investigation Officer under Section 161 CrPC cannot have precedence and dominance over and above the statement recorded by the trial court where a witness deposes on oath. But at the same time, the trial court while exercising its extraordinary powers under Section 319 CrPC has to be satisfied enough to the hilt whether the names of the persons sought to be summoned have been taken, either in the FIR or in the statement before the court, on account of sheer animosity, or they were really involved in the commission of crime. The trial court will have to express the strong reasons in writing for recording his satisfaction that there exists a real possibility that the accused so summoned is in all likelihood would be convicted. Mere existence of a prima facie case will not serve the purpose. 14. In the instant case, the court below ought to have been mindful of the persisting animosity between informant Sushil Kumar and the applicant Shyamveer as well as of the fact that the FIR of the alleged incident was lodged almost after 27 hours of the happening. This creates a reasonable doubt regarding the false implication of the applicant petitioner in the backdrop of his inimical terms with the complainant. 15. In view of the above narrated facts and circumstances of the case and the legal proposition propounded by the Hon’ble Apex Court, the impugned order dated 25.3.2010 is not sustainable and it is liable to be set aside. 16. Resultantly, petition is allowed. Impugned order dated 25.3.2010 passed by the Additional Sessions Judge/IV FTC, Haridwar in Sessions Trial No. 295/2005, Stae v. Monu Pahari & Others, is hereby quashed. 17. Inform the court concerned accordingly.