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2014 DIGILAW 1470 (ALL)

Shehjahan v. State of U. P.

2014-05-06

ARVIND KUMAR TRIPATHI II

body2014
JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. 1. Heard Shri Arun Sinha, learned counsel for the revisionist; Shri Sharad Dixit, learned AGA for the State respondent and Shri Amrit Kumar Tiwari, learned counsel for opposite party nos.2 to 4 and also perused the record. 2. This criminal revision has been filed challenging the judgment and order dated 17.11.2012 passed by the learned Additional Sesisons Judge, Court No.35, District Barabanki in Sessions Trial No.1275 of 2011 (State v. Ruby) by which the application filed by the revisionist under Section 3 19 Cr.P.C. for summoning opposite party nos.2 to 4 to face trial under Sections 302, 498-A, 304-B IPC and Section 3 /4 of the Dowry Prohibition Act has been rejected. 3. As per factual matrix of the case, FIR was lodged by the revisionist on 22.5.2011, in Police Station Kotwali Haidergarh, District Barabanki, under Sections 498-A, 304-B IPC and Section 3 /4 of the Dowry Prohibition Act against the in-laws of her deceased daughter. After completion of investigation, charge sheet was submitted excluding opposite party nos.2 to 4, who are Jeth, husband and dewar the deceased. When trial commenced the revisionist moved an application for summoning opposite party nos.2 to 4 to face trial. One application was earlier rejected by the trial court on 5.6.2012. The second application too was rejected by the trial court by the impugned order. 4. Learned counsel for the revisionist has submitted that the order is illegal and without jurisdiction. It was further submitted that opposite party nos.2 to 4 were also involved in the said occurrence, hence learned court below has erred in rejecting the application for summoning them to face trial. 5. Learned AGA and learned counsel for opposite party nos.2 to 4 have opposed the revision and submitted in favour of the order impugned. 6. Section 3 19 of the Code of Criminal Procedure, as it exists today, is quoted hereunder: - "319 Cr.P.C. - Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub- section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 7. In the case of Hardeep Singh and others v. State of Punjab and others, 2014 (1) SCALE 241 the matter came up for consideration before the Apex Court as to whether the word "evidence" in Section 3 19 Cr.P.C. means as arising in examination in chief, or also together with cross examination. The Apex Court has held that power under Section 3 19 Cr.P.C. can be exercised at the stage of completion of examination in chief, and the court does not need to wait till the same evidence is tested on cross examination, for its satisfaction of the court, which can be gathered from the reasons recorded by the court in respect of complicity by some other persons in final trial in the offence. The apex Court has further held as under: - " Section 3 19 (1) Cr.P.C. empowers the court to proceed against other persons, who appear to be guilty of offence, though not an accused before the court. The word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved". It imparts a lesser degree of probability than proof. (para 86) At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 3 19 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. It imparts a lesser degree of probability than proof. (para 86) At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 3 19 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two Judges' Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23 , held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. (para 88) In Rajendra Singh (Supra), the Court observed: "Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 3 19 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 3 19 of the Code or not." (para 89) In Mohd. Shafi (Supra), this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 3 19 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. (para 90) In Sarabjit Singh & Anr. Shafi (Supra), this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 3 19 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. (para 90) In Sarabjit Singh & Anr. v. State of Punjab & Anr., AIR 2009 SC 2792 , while explaining the scope of Section 3 19 Cr.P.C., a two Judges' Bench of this Court observed: - "....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......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 3 19 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 (sic sparing) exercise of jurisdiction, would not be satisfied." (Emphasis added) (para 91) In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC 1248 , a two-Judge Bench of this Court took a similar view observing that the court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 3 19 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity. A similar view has been reiterated by this Court in Michael Machado & Anr. v. Central Bureau of Investigation & Ors., AIR 2000 SC 1127 . (para 92)" 8. A similar view has been reiterated by this Court in Michael Machado & Anr. v. Central Bureau of Investigation & Ors., AIR 2000 SC 1127 . (para 92)" 8. The Apex has further held in para 99 that "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 3 19 Cr.P.C. In Section 3 19 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 3 19 Cr.P.C. to form any opinion as to the guilt of the accused." 9. It is worth mentioning that the revisional court cannot reassess or reappraise the evidence, and cannot upset the findings of fact recorded by the trial court by substituting its own finding. In the cases of State of Kerala v. K.M. Abdullah and Co., AIR 1965 SC 1585 ; Munna Devi v. State of Rajasthan, AIR 2002 SC 107 ; Associated Cement Co. Ltd. v. Keshvanand, 1997 DCR - 3 - 457 (SC); and Dulichand v. Delhi Administration, AIR 1975 SC 1960 it has been held that while the appellate jurisdiction is co-extensive with the original Court's jurisdiction as an appreciation and re-appreciation of evidence is concerned, the revisional court has simply to confine to the legality and propriety of the findings and as to whether the subordinate court acted within it's jurisdiction. A revisional court has no jurisdiction to set aside the findings of the fact recorded by the Magistrate and impose or substitute it's own findings. A revisional court has no jurisdiction to set aside the findings of the fact recorded by the Magistrate and impose or substitute it's own findings. Sections 379 to 401 Cr.P.C. confer only limited power of revisional court to the extent of satisfying the legality, propriety or regularity of the proceedings or orders of the lower court and not to act like appellate court for other proposes including, the recording of new findings of fact on fresh appraisal of evidence. 10. A perusal of record reveals that there is dying declaration of the deceased, which has been filed by opposite party nos.2 to 4 as annexure SC-1. A perusal of dying declaration reveals that the deceased has only laid allegation over Ruby. She has specifically stated that her husband Fakhruddin and dewar Qutubuddin came to rescue her, and they are not involved at all in this mishappening. This dying declaration was recorded by the Naib Tehsildar, Dwivediganj, Haidergarh, Barabanki in presence of Dr. V.K. Agarwal, C.H.C., Hydergarh, Barabanki. 11. This dying declaration, according to opposite party nos.2 to 4, has been proved by the evidence of Dinesh Kumar, Tehsildar PW-6. 12. In the instant case, the trial court has while assessing the dying declaration of the deceased for the purposes of deciding application under Section 3 19 Cr.P.C. has held that on the basis of dying declaration there is no sufficient evidence to summon opposite party nos.2 to 4 even if after alteration of charge. 13. Considering the satisfaction recorded by the trial court, this criminal revision is devoid of merit, liable to be dismissed, and is hereby dismissed.