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Allahabad High Court · body

2014 DIGILAW 2259 (ALL)

ABDUL WAHAB v. STATE OF U. P.

2014-07-31

NAHEED ARA MOONIS

body2014
JUDGMENT Hon’ble Naheed Ara Moonis, J.—Heard Sri V.M. Zaidi, learned Senior Advocate assisted by Sri S.M.G.Asghar learned counsel for the applicants, Sri V.P.Srivastava, learned Senior Advocate assisted by Sri R.K.Sharma, for the opposite parties No. 2 to 7 and learned A.G.A. for the State and have been taken through the record. The instant application under Section 482 Cr.P.C. has been filed by the complainant against the order dated 25.3.2010 passed the learned Additional Sessions Judge Court No. 3, Ghaziabad passed in S.T. No. 1973 of 2009 (State v. Zahid) under Sections 498A/304B IPC read with Section 3/4 Dowry Prohibition Act Police Station Massoori District Ghaziabad whereby the application moved by the complainant-applicant under Section 319 Cr.P.C. has been rejected. 2. Learned counsel for the respondent Nos. 2 to 7 raised preliminary objection with regard to the maintainability of the application under Section 482 Cr.P.C. and has contended that the application under Section 482 Cr.P.C against the rejection of the application under Section 319 Cr.P.C. by the trial Court cannot be entertained as the applicant has surpassed the appropriate remedy of revision. 3. In rebuttal of the argument advanced by the learned counsel for the opposite parties No. 2 to 7, learned counsel for the applicant has placed reliance upon the decision of the Apex Court in re Municipal corporation of wherein the provision in Section 482 Cr.P.C. has been dealt with in Delhi v. Ram Kishan Rohtagi and others, AIR 1983 SC 67 , extenso holding that Section 482 Cr.P.C. confers a separate and independent power on the High Court alone to pass order ex debito justitiae in case where grave and substantial injustice has been done or where the process of the Court has been serious abused. It is not merely a revisional power meant to be exercised against the orders passed by the subordinate Courts. The scope, ambit and range of Section 482 Cr.P.C. is quite different from the powers conferred under the provision of Section 397 Cr.P.C. therefore, the inherent powers of the High Court under Section 482 Cr.P.C. shall be available to a person despite he has remedy of revision before the Sessions Judge or High Court. The jurisdiction under Section 482 Cr.P.C. can be exercised only to prevent abuse of process of Court or otherwise to secure ends of justice. The jurisdiction under Section 482 Cr.P.C. can be exercised only to prevent abuse of process of Court or otherwise to secure ends of justice. In the instant case impugned order clearly denotes a situation which is an abuse of process of the Court, therefore, for the purpose of securing ends of justice it will not be a bar to exercise inherent powers of this Court under Section 482 Cr.P.C. 4. Further the submission of the learned counsel for the respondent Nos. 2 to 7 was controverted by the learned counsel for the applicant that the accused respondents have no locus at this stage to object the order passed by the trial Court. In rebuttal of the same, learned counsel for the respondent Nos. 2 to 7 submitted that the respondent Nos. 2 to 7 were the persons aggrieved with the order passed on the application under Section 319 Cr.P.C. therefore, they had locus to raise objection with regard to the same. 5. The learned counsel for the applicant submitted that the marriage of his daughter Asma alias Gudia was performed with Zahid, the son of the opposite party No. 2 in accordance with Muslim Customs and Rites about five years earlier to the said occurrence. The applicant had given sufficient dowry at the time of marriage according to his status. The family members of her in-laws including the husband were not satisfied with the dowry given at the time of marriage. They were torturing and tormenting the victim to fetch additional dowry including a Santro Car. The applicant could not fulfill additional dowry demanded by the opposite parties. In a shrouding circumstances the daughter of the applicant-complainant was burnt alive by them. Information with respect to the said occurrence was given by the sister of the deceased who was married with the younger brother of deceased’s husband. After registration of the First Information Report, the investigating officer came into action and submitted charge-sheet against the husband of the deceased namely Zahid exonerating other family members. The learned Magistrate took cognizance of the offence on the basis of the charge-sheet against the husband only who is facing trial in the offence aforesaid. During trial statement of the complainant Abdul Wahab and Smt. Reshma, the sister of the victim was recorded who had explicitly stated with regard to involvement of the other accused persons who were exonerated during investigation. During trial statement of the complainant Abdul Wahab and Smt. Reshma, the sister of the victim was recorded who had explicitly stated with regard to involvement of the other accused persons who were exonerated during investigation. In such circumstances, the complainant moved an application under Section 319 Cr.P.C. for summoning Mohd. Umar (father in-law) Jalish (Jeth), Rais (Dewar), Smt. Shaheen (Jethani), Rasheena (Nand) and Monisha (Nand). Written objection was also filed on behalf of the defence with respect to the maintainability of the application under Section 319 Cr.P.C. The application under Section 319 Cr.P.C. filed by the complainant/applicant was rejected erroneously on the ground that no prima facie evidence showing the complicity of the opposite parties No. 2 to 7 under Section 304 B IPC read with Section 3/4 Dowry Prohibition Act were found.The Court below has relied upon a catena of decisions of Apex Court holding that unless the Court is hopeful that there is reasonable prospect of the case as against the newly arraigned accused ending in conviction for the offence concerned, the Court would not summon the accused under Section 319 Cr.P.C. The Court below has committed manifest error rejecting the application of the applicant on the ground that there is remote chances of conviction of the newly added persons, hence the impugned order may be set aside. 6. In support of his contention, Sri V.M.Zaidi, learned Senior Advocate assisted by Sri S.M.G. Asghar, learned counsel for the complainant/applicant has placed reliance upon a decision of Apex Court in re Hardeep Singh v. State of Punjab and others, 2009 (5) ACC 768, particularly referring to para 58 of the said judgment which is being quoted hereto below : “We may only observe that it is settled law that at the stage of issuing summons or process, a Court has to see whether there is prima facie case against the person sought to be summoned or against whom process is sought to be issued. At that stage, there is no question of giving an opportunity of hearing to such person. The entire scheme of the code is that an accused does not come into picture at all till process is issued. At that stage, there is no question of giving an opportunity of hearing to such person. The entire scheme of the code is that an accused does not come into picture at all till process is issued. As held by this Court in several cases including a leading decision in Nagavva v. Veeranna, 1976 (3) SCC 376, the accused at pre-process stage has no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. It may therefore, be said that till summons or process is issued against the accused, he has no right of audience and in that case it cannot be said that on being satisfied on the basis of examination in chief, an application under Section 319 of the code is not maintainable.” 7. It has further been contended that the accused respondent Nos. 2 to 7 has committed gross illegality and error by filing the objection with regard to maintainability of application under Section 319 Cr.P.C. for summoning them as they were exonerated by the investigating officer. Learned counsel for the complainant/applicant further contended that the scope of Section 319 Cr.P.C. is very much dealt with by the Hon’ble Apex Court in Hardeep Singh (Supra) and other cases. It has also been stressed that Court has to see at this stage where material placed on record discloses complicity of the person in the commission of the offence or not. In the present case when the evidence of the P.W. 1 Abdul Wahab and P.W. 2 Smt. Reshma have been recorded wherein they have specifically mentioned about the active participation of all the in laws including husband of the deceased in the commission of the offence. P.W. 2 was an eye witness when her sister was burnt to death by her in-laws yet the conclusion drawn by the trial Court rejecting the application of the complainant under Section 319 Cr.P.C. is patently erroneous. The allegations made against the opposite parties No. 2 to 7 in the application under Section 319 Cr.P.C. prima facie discloses complicity of all the persons in the commission of the offence. Specific role has been assigned to all the accused persons in the statement of the witnesses regarding their active participation. The allegations made against the opposite parties No. 2 to 7 in the application under Section 319 Cr.P.C. prima facie discloses complicity of all the persons in the commission of the offence. Specific role has been assigned to all the accused persons in the statement of the witnesses regarding their active participation. The victim has died at her matrimonial house and the incident was narrated in a natural manner by her sister who had seen the incident and is also wife of younger brother of the husband of deceased. The Court below has erred by not evaluating the evidence of P.W.1 and P.W. 2 while exercising the extraordinary power under Section 319 Cr.P.C. wrong conclusion that it should only be exercised very sparingly if compelling reason exist and if there is a reasonable prospect of the case ending in conviction against the newly added accused persons. Learned counsel for the applicant /complainant stressed that the scope of Section 319 Cr.P.C. is very much dealt with by the Apex Court in the Full Bench decision of Hardeep Singh (Supra) and a number of other cases. It has also been stated that the Court has to see at this stage whether material placed on record discloses complicity of the other accused persons in the commission of the said offence or not. The test of prima facie offence has to be applied at this stage. In the present case when sufficient evidence of the complainant P.W. 1 Abdul Wahab and P.W. 2 Smt. Reshma have been recorded wherein they have specifically mentioned about the active participation of all the accused persons in the commission of the offence, recording of satisfaction was neither necessary nor mandatory. The Court has to see the material to find out as to whether there is ground for presuming that the accused persons has committed the offence or not for the purpose of arriving at the conclusion that there is no probability to lead a conviction. The order passed by the Court below is based on extraneous consideration other than law hence the same may be set aside. 8. I have considered the submission of the learned counsel at bar. Before considering the arguments of the counsel. It is apt to delineate the provision in respect of summoning of the accused under Section 319 Cr.P.C. which is being reproduced below: “319. 8. I have considered the submission of the learned counsel at bar. Before considering the arguments of the counsel. It is apt to delineate the provision in respect of summoning of the accused under Section 319 Cr.P.C. which is being reproduced below: “319. 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 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” 9. From the perusal of the aforesaid provision to summon any other person other than accused who are not facing trial is an extra ordinary power conferred on the Court which is no doubt be exercised very sparingly and with caution and only when the concern Court is satisfied that some offence has also been committed by those persons. This power has to be essentially exercised only on the basis of the evidence. The term ‘evidence’ as used in Section 319 Cr.P.C. would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. This power has to be essentially exercised only on the basis of the evidence. The term ‘evidence’ as used in Section 319 Cr.P.C. would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. The word evidence mentioned in Section 319 (i) includes the material collected by the investigating officer and the material or evidence which comes before the Court on the basis of which Court can prima facie come to the conclusion that the persons who have not been arrayed before are involved in the commission of the crime. The trial Court had arrived at wrong conclusion while sifting the evidence led by the P.W.1 Abdul Wahab and P.W. 2 Smt. Reshma. Different standards are required to be applied at different stages. The Apex Court recently in the case of Sarojben Ashwin Kumar Shah v. State of Gujarat and another, 2011 (74) ACC 951; Michael Machado and another v. C.B.I. and another, 2000 (4) ACC 795 (SC) and Sarabjeet Singh’s case (Supra) and reviewed the case law in respect of summoning an accused under Section 319 Cr.P.C. and has laid down parameters in this regard in para 16. has diluted the principles laid down in : “16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this: (i) The Court can exercise the power conferred on it under Section 319 of the Code suo moto or on an application by someone. (ii) The power conferred under Section 319 (1) applies to all Courts including the Sessions Court. (iii) The phrase “any person not being the accused” occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court. In other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court. (iv) The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word ‘evidence’ in Section 319 contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the Court must be satisfied that a case for addition of persons as accused, not being the accused before it has been made out on the additional evidence led in before it. (v) The power conferred upon the Court’s although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence led in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused. (vi) The Court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the Court to the constraints impressed in Section 319 (4) that proceedings in respect of newly -added persons shall be commenced afresh from the beginning of the trial. (vii) The Court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.” 10. In the instant case, the trial Court has rejected the application under Section 319 Cr.P.C. on the mere conjectures as to whether there exists a possibility that the accused so summoned in all likelihood would be convicted. (vii) The Court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.” 10. In the instant case, the trial Court has rejected the application under Section 319 Cr.P.C. on the mere conjectures as to whether there exists a possibility that the accused so summoned in all likelihood would be convicted. In view of the principles laid down in Sarojben (Supra) the law has travelled further and the theory of probability in regard to summoning of an accused that there are chances of conviction stands diluted and the requirement has been found to be that there must be ‘satisfactory” and “prima facie evidence” to summon the accused under Section 319 Cr.P.C. Prima facie satisfaction expressed by the Court below is just conducting a fishing enquiry which is not expected at this stage. Even no pre-summoning finding can be recorded that the evidence is sufficient to convict the accused. The judgment of three Judge Bench in the case of Hardeep Singh (Supra) was referred to the constitutional Bench to determine the controversy in respect to scope and extent of exercise of power under Section 319 Cr.P.C. Recently the constitutional Bench on 10.1.2014 (reported in 2014 (2) SCC. Cr. R 1041) exclusively dealt with the provision and the propositions of law have been concluded in the following terms : 11. We accordingly sum up our conclusions as follows: Question Nos. 1 and III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised? AND Q.III Whether the word “evidence” used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial? A. In Dharam Pal’s case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C.and the Sessions Judge need not wait till ‘evidence’ under Section 319 Cr.P.C. becomes available for summoning an additional accused. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the Court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet. In view of the above position the word ‘evidence’ in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Question No. II Q.II Whether the word “evidence” used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question No. IV Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question No. V Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried alongwith the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. The matters be placed before the appropriate Bench for final disposal in accordance with law explained here-in-above. 12. Thus, in view of the above decision of the Constitution Bench of the Hon’ble Apex Court, there is no legal impediment to summon if evidence is sufficient by looking into evidence adduced by the witnesses showing complicity of the accused persons. This Court would refrain from making further comment on the facts and circumstances of the case lest it may prejudice the trial, but in the circumstances of the case, the Court below has to examine the broad probabilities of the case, total effect of the evidence and the documents. The trial Court should not make a roving enquiry with respect to pros and cons of the matter. The trial Court should not make a roving enquiry with respect to pros and cons of the matter. The Court below is required to evaluate the material and documents on record with a view to find out as to whether facts emerging there from taken at their face value discloses the existence of all the ingredients constituting the alleged offence or not. It is the duty of the Court not to allow a person who deserves to be tried to go Scot free by being not arraigned in the trial inspite of his complicity by manipulating the investigating and/or prosecuting agency. The Court is the sole repository of justice and a duty is cast upon it to uphold the rule of law. 13. In the light of above verbose discussions and the facts emerging therefrom a case has been made out for exercise of such an extra ordinary jurisdiction which is required to be exercised very sparingly to secure the ends of justice, I find no force in the order passed by the Court below. The order impugned passed by the Court below is hereby set aside. The application is accordingly allowed. The matter is remitted back to the Court below to proceed with the matter following the provisions laid down in Section 319 (4) Cr.P.C. And conclude the trial in accordance with law. The interim order if any is hereby vacated. —————