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2014 DIGILAW 487 (ALL)

Mahesh Chandra Sharma v. State of U. P.

2014-02-12

KARUNA NAND BAJPAYEE

body2014
JUDGMENT Karuna Nand Bajpayee,J.: - The present criminal revision has been filed seeking quashing of the order dated 8.10.2013 passed by learned Addl. District and Sessions Judge, Court no.13, Aligarh whereby an application moved u/s 319 Cr.P.C. in S.T. No. 131 of 2011 State Vs. Gagan Sharma and others u/s 498A, 302, 304B IPC and Section 3/4 D.P. Act has been rejected. 2. Heard learned counsel for the revisionist and learned AGA for the State. The entire record including impugned order has been perused. 3. The contention of the counsel is that the statements of the prosecution witnesses who have been examined to prove the factual aspects of the case clearly disclose the complicity of both the respondents, namely, Munna Lal alias Murari Lal Sharma and Ram Kumar Upadhyay respectively and it cannot be said that there was no evidence on record on the basis of which they could to have been summoned by the lower court under 319 Cr.P.C. According to the counsel it is very much within the powers of the court to summon the additional accused other than those who are facing the trial, if the evidence produced discloses certain offences having been committed by them. According to the counsel though it is a fact that the Investigating Officer after investigating the case did not find it fit to submit the charge sheet against the twin respondents but the submission of final report or the non-submission of charge sheet against them will not preclude the court from exercising its power u/s 319 Cr.P.C. According to the counsel the powers under section 319 Cr.P.C. are plenary in nature and can be exercised even against the accused whose complicity was found to be doubtful in the estimate of the investigating officer It has also been submitted that though an earlier application moved by first informant seeking the summoning of the respondents under section 319 Cr.P.C. had been rejected by the trial court and revision against the same was also dismissed by the High Court but a subsequent application moved after the production of the new witness shall be maintainable in law and the earlier rejection shall not act as a bar to summon the accused at a later stage of the trial on the basis of the new material. According to the counsel the impugned order has been passed on the second application moved by first informant after the first had already been rejected but according to the counsel, the second application was filed after P.W.2 was produced whose evidence was not available at the time of the earlier rejection. Further submission is that while deciding the application under section 319 Cr.P.C. the trial court had not much discretion to exercise and the allegations made by the witnesses ought to have been thought sufficient to summon the accused but the same has not been done. The impugned order is, therefore bad in eyes of law according to the contentions raised by the counsel. 4. Learned AGA in rebuttal has submitted that the impugned order is a reasoned order containing correct analysis of facts and law both and there is nothing wrong that may be pointed out in the impugned order and the same cannot be faulted with. 5. After hearing the rival sides and perusing the records it appears that both the applicants are distant uncle in laws (Phoopha). Respondent no.2 Munna Lal is Superintending Engineer by vocation and is said to have been posted at Varanasi, many hundred kilometers away from the place of occurrence which is situate in District Aligarh. Respondent no.3 too is a man in service. Ordinarily speaking the nature of allegations made against them is such which bristles with improbabilities. It can also be gathered from record that the facts alleged in the FIR and the evidence given by P.W.1 when taken together, is not very different from what has been deposed by P.W.2 against both the respondents. It is apparent that the evidence of P.W.2 does not very substantially make any difference or addition to the allegations which were already there against the respondents on the basis of which earlier application u/s 319 Cr.P.C. had been moved . By a reasoned order the same was rejected and the revision filed against it had also not found favour with the High Court. The refusal to summon the respondents was affirmed by the High Court. It is true that in law, subsequent application u/s 319 Cr.P.C. was of course maintainable and so far as the power of the court is concerned the same cannot be said to have been denuded from its jurisdiction to summon the respondent subsequently on the second application. The refusal to summon the respondents was affirmed by the High Court. It is true that in law, subsequent application u/s 319 Cr.P.C. was of course maintainable and so far as the power of the court is concerned the same cannot be said to have been denuded from its jurisdiction to summon the respondent subsequently on the second application. But to have the power to do something is one thing while to decide upon the appropriateness of its exercise is different. The question is not whether the court has the power to summon the additional accused or not, more important question is whether the court ought to have appropriately summoned the respondents or not. When the power is to be exercised the matter requires a lot of circumspection and reasonableness which must be applied at the time of its exercise. A perusal of the impugned order reveals that it is a very well reasoned order containing a very careful analysis of facts and law both. The remoteness of the relationship of the respondents; the unlikelihood of their participation in the offence, the distant places of their posting; the earlier decision arrived at by the trial court on the point of summoning which was sought on the basis of material not very different in quality and substance from the material which was made the new basis to seek the summoning of the respondents again; the affirmation of the earlier order done by the High Court and the findings of the Investigating Officer after proper investigation about the non- complicity of respondents in the crime have all been very carefully considered, analyzed and discussed by the trial court in its impugned order. It is also revealed from perusal of the impugned order that the court did not see any reasonable prospect of respondents conviction in case they were at all summoned. Though it must be clarified and observed that the bleak prospect of conviction has certainly not been made the primary or soul basis to reject the prayer of summoning. All other aspects which are in fact necessary to be weighed and reckoned with have been judiciously marshaled and analyzed by the trial court very well indeed. Though it must be clarified and observed that the bleak prospect of conviction has certainly not been made the primary or soul basis to reject the prayer of summoning. All other aspects which are in fact necessary to be weighed and reckoned with have been judiciously marshaled and analyzed by the trial court very well indeed. The Court has rightly observed that power u/s 319 Cr.P.C. cannot be exercised in a routine or lackadaisical manner and also that the ipse-dixit of the witness cannot always become the sole basis to be acted upon. The court has to exercise and apply its judicial mind in the matter involved and should not allow itself to be ill-used by a vengeful complainant or to act as an engine of oppression against any one just to quench his sense of vindictiveness. 6. In a recent pronouncement given by the constitution bench of Apex Court in the case of Hardeep Singh etc.etc. Vs. State of Punjab and Ors. etc.etc. 2014(1) SCALE 241 in Criminal Appeal No.1750 of 2008 the entire ins and outs of the scope u/s 319 Cr.p.C. have been vividly expatiated upon and it has been observed as follows: "Para 98. Power under section 319 Code of Criminal Procedure is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. Para 99. 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. 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 319 Code of Criminal Procedure In Section 319 Code of Criminal Procedure 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 319 Code of Criminal Procedure to form any opinion as to the guilt of the accused." 7. From the aforesaid observations given by the constitution bench it is crystal clear and it does not admit of any controversy that though the standard to judge the evidence on the anvil of its ultimate reliability and testing the same on the cross of proof beyond reasonable doubt is not required at the stage of exercising the power u/s 319 Cr.P.C. but there is a an implicit requirement of a higher standard of courts satisfaction which is essentially different from the standard and the degree of satisfaction required to persuade the court to summon the accused to face the trial at the initial stage of 204 Cr.P.C. 8. It is also not irrelevant to observe that whether an additional accused ought to be summoned u/s 319 Cr.P.C. or not is a primary discretion of the trial Court. The Higher courts are not well advised to meddle with the same ordinarily even if they think that a different view might also have been possibly taken. Judicial discretion of the lower court must be paid due regard in all cases. Of course if it is found that the discretion has been in judicially exercised or that the order has been passed in a manner which is against the weight of evidence on record or is against the tenets of law, the same has to be interfered with and corrected. But not until then. Of course if it is found that the discretion has been in judicially exercised or that the order has been passed in a manner which is against the weight of evidence on record or is against the tenets of law, the same has to be interfered with and corrected. But not until then. So far as the facts of the present case are concerned, even after going through the whole evidence, this Court does not feel inclined to take any different view than what has been taken by the lower court. 9. In the light of the aforesaid discussions I do not see any force in the revision. The impugned order cannot be faulted with as there is no illegality, impropriety or incorrectness perceptible in the same. Being sans merit the revision stands dismissed.