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2014 DIGILAW 1690 (ALL)

Yaseen Ahmad v. State of U. P.

2014-05-23

ARVIND KUMAR TRIPATHI II

body2014
JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. 1. Instant criminal revision has been filed by Yaseen Ahmad challenging the order dated 25.2.2014 passed by the learned Additional Additional Sessions Judge, Court No.9, Gonda in Sessions Trial No.55 of 2013, case crime no.276 of 2012, under Sections 498-A, 304-B IPC and Section 3 /4 of the Dowry Prohibition Act, Police Station Katra Bazar, District Gonda by which the application under Section 3 19 Cr.P.C. Filed by the revisionist/complainant has been rejected. 2. As per factual matrix of the case, the revisionist is the complainant in case crime no.276 of 2012, under Sections 498-A, 304-B IPC and Section 3 /4 of the Dowry Prohibition Act, Police Station Katra Bazar, District Gonda. FIR was against Aqueel Ahmad, Smt. Shakira Begum and Smt. Sahiba. After investigation, charge sheet was filed against Akeel Ahmad and husband Yaseen Ahmad. Names of opposite party nos.2 and 3 were not included in the charge sheet. After committal of case, charges were framed against Akeel Ahmad and Yaseen Ahmad. Several witnesses were examined, and after that an application under Section 3 19 Cr.P.C. was moved, which was rejected by the learned Additional Sessions Judge. Aggrieved, this criminal revision has been filed. 3. Heard Shri Mukesh Kumar Tewari, learned counsel for the revisionist; Shri Sharad Dixit, learned AGA for the State respondent and Shri Rajendra Prasa Mishra, learned counsel for opposite party nos.2 and 3 and also perused the record. 4. It was submitted by the learned counsel for the revisionist that in the statement of PW-1 the complainant, PW-3 Naseeruddin and PW-4 Kaliya Sahabuddin there is no evidence for conviction of opposite party nos.2 and 3 for the offences under Sections 498-A, 304-B IPC and Section 3 /4 of the Dowry Prohibition Act. It was further submitted that prior to this application one application under Section 3 19 Cr.P.C., was also moved, and on 26.4.2013, after examination of PW-1 Yaseen Ahmad and PW-2 that was rejected. After that two independent witnesses Nasirudeen and Kaliya were examined, and from a perusal of their statements, there is sufficient evidence to hold opposite party nos.2 and 3 guilty. It was submitted that viscera report clearly indicates that poison was given to the deceased. It was further submitted that there is material evidence. After that two independent witnesses Nasirudeen and Kaliya were examined, and from a perusal of their statements, there is sufficient evidence to hold opposite party nos.2 and 3 guilty. It was submitted that viscera report clearly indicates that poison was given to the deceased. It was further submitted that there is material evidence. It was further submitted that there is material evidence on record for summoning opposite party nos.2 and 3 to face trial. 5. It was argued by the learned counsel for opposite party nos.2 and 3 that an application under Section 4 82 Cr.P.C., was filed for quashing the impugned order, but that has been withdrawn, and no liberty was sought for filing this criminal revision, so as per Chapter 22 Rule 7 of the High Court Rules, 1952 filing of successive application on same fact is barred, and it applies even if the first petition is rejected for default, and not on merits. After rejection of earlier application under Section 3 19 Cr.P.C., the prosecution has examined two more witnesses, who are not named as witnesses in the charge sheet, and thus, their statements could not be considered for summoning opposite party nos.2 and 3, hence no new ground have come before the trial court for summoning opposite party nos.2 and 3 under Section 3 19 Cr.P.C. It was further submitted that opposite party nos.2 is mother in law and is living separately, and opposite party no.3 is sister in law, whose marriage was performed 25 years back and they have no concern with the demand of Alto car. 6. A perusal of impugned order reveals that in this case entire prosecution evidence is complete and statement of accused under Section 3 13 Cr.P.C. has also been recorded, and the case is fixed for arguments. 7. Learned counsel for the revisionist has relied upon the decisions in the cases of Mohit alias Sonu and another, State of Uttar Pradesh and another, (2013) 7 SCC 789 ; Kamta and another v. State of U.P. and another, 2013 (83) ACC 376; Sarabjit Singh and another v. State of Punjab and another, 2009 (66) ACC 32; and Brindaban Das and others v. State of West Bengal, 2009 (66) ACC 273. 8. 8. Learned counsel for the opposite parties has relied upon the decision in the case of M/S Gokul Dairy and others v. State of U.P. and others, 2002 (20) LCD 210 . 9. 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. 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. (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. 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. 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) 10. 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." 11. 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." 11. The law, referred by the revisionist, in the case of Mohit alias Sonu and another, State of Uttar Pradesh and another (supra) is of no help to the revisionist, as matter pertains to exercise of inherent jurisdiction under Section 4 82 Cr.P.C. 12. In the case of Brindaban Das and others v. State of West Bengal (supra) the Apex Court has held in para 17 that "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. Although, a somewhat discordant note was struck in Rajender Singh v. State of U.P., 2007 (59) ACC 541 (SC) the view expressed in the majority of decisions of this Court on the point subscribe to the view that the power unde Section 3 19 Cr.P.C. is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice." 13. In the case of Kamta and another v. State of U.P. and another (supra) the Apex Court has held as under: - "Now the only question remains that after conclusion of evidence can an application be moved. The wordings of section 319 are very clear that during inquiry or trial, mere closing of prosecution evidence does not mean that trial is over. The statement under section 319 Cr.P.C. is continuance of the trial and the Lower Court recorded satisfaction that there is ample evidence to sumon these persons as mentioned in the impugned order. The argument raised by the learned counsel for the revisionist that though the Court reached to the conclusion that there is ample evidence but has not expressed his satisfaction that it would warrant in conviction." (para 10) 14. In Sarabjit Singh and another v. State of Punjab and another (supra) the Apex Court has held as under: - "The provision of Section 3 19 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. In Sarabjit Singh and another v. State of Punjab and another (supra) the Apex Court has held as under: - "The provision of Section 3 19 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 another, [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 3 19 contemplates that evidence of witnesses given in Court..." An order under Section 3 19 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." (para 17) "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. 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 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 exercise of jurisdiction, would not be satisfied." (para 18) 15. A perusal of record reveals that after rejection of first application under Section 3 19 Cr.P.C. the statements of two witnesses were recorded. They are Naseeruddin and Kaliya Sahabuddin. The examination in chief of Naseeruddin reveals that he is not the eye witness. He has only stated that when he reached there, he heard the deceased crying that she has been poisoned by Akeel Ahmad, Smt. Shakira Begum and Smt. Sahiba. Same evidence has been given by second witness Kaliya Sahabuddin. When cross examined, both of the witnesses have stated that their statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer. This clearly goes to show that there names do not find place in the list of witness, mentioned in the charge sheet. 16. From the decisions, referred above, and after going through the provisions of Section 3 19 Cr.P.C., it is clear that the word "may" has been used. This gives discretion to the trial court either to allow or reject the application, as the case may be. 17. PW-3 and PW-4 were not examined by the Investigating Officer, and their statement under Section 161 Cr.P.C. was not recorded. In view of this, it appears that this fact weighed in the mind of the court that this evidence is, in no way, better in quality, than the evidence of PW-1 and PW-2. 17. PW-3 and PW-4 were not examined by the Investigating Officer, and their statement under Section 161 Cr.P.C. was not recorded. In view of this, it appears that this fact weighed in the mind of the court that this evidence is, in no way, better in quality, than the evidence of PW-1 and PW-2. After these evidence an application under Section 3 19 Cr.P.C. was moved, and was rejected. This was the reason, the trial court has rejected instant application under Section 3 19 Cr.P.C. on the ground that previous order has not been challenged in proper form. 18. It is the discretion of the trial court to judge the quality of evidence, and while exercising power of criminal revision, this Court cannot go into the merits of that decision, and enter into the basis of that findings. While dealing with the application under Section 3 19 Cr.P.C. the Court has to be prima facie satisfied that such person has committed any offence for which he may be tried with other accused. 19. It is also noteworthy that statement of accused under Section 3 13 Cr.P.C. has been recorded, so if the application is allowed, it would have the effect of starting the trial afresh. The Apex Court has in Brindaban Das and others v. State of West Bengal (supra) warned against this exingency. Considering the facts and circumstances of the case, which includes quality of evidence also, the trial court was of the opinion that application is liable to be dismissed, and thus, he dismissed the criminal revision. 20. So far as the bar of Chapter 22 Rule 7 of the High Court Rules, 1952 is concerned, the first application under Section 3 19 Cr.P.C. was rejected and an application under Section 4 82 Cr.P.C. was moved for quashing that order, and that petition was withdrawn. After examining two more witnesses, the present application under Section 3 19 Cr.P.C. was moved, and when it was rejected, present criminal revision has been filed, so it cannot be said that successive application on same fact has been filed. In view of this, bar of Chapter 22 Rule 7 of the High Court Rules is not applicable. 21. I do not think that there is any illegality or infirmity in the impugned order. The criminal revision is liable to be dismissed, and is hereby dismissed.