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2014 DIGILAW 539 (ALL)

Babli Saxena @ Alkesh Saxena v. State of U. P.

2014-02-14

KARUNA NAND BAJPAYEE

body2014
JUDGMENT Karuna Nand Bajpayee, J.: - Revision has been filed assailing the impugned order dated 23.10.2013 whereby an application u/s 319 Cr.P.C. moved by the First Informant which sought the summoning of the additional accused-respondent nos. 2 to 6 had been rejected. 2. Heard learned counsel for the revisionist as well as learned A.G.A. The entire record has been perused including the impugned order. 3. The contention of the learned counsel for the revisionist is that the perusal of the evidence given by the prosecution witnesses shall reveal that the respondents were present at the place where the deceased was found lying and where he eventually died. Further submission is that there is evidence to the effect that the deceased while dying uttered the words 'Munnu Pradhan Dhokha' which according to the counsel should be taken as an incriminating circumstance against respondent no.6. Though it has been fairly conceded by the counsel for the revisionist that the gross contradictions between the version given in the F.I.R. and the version which has been given in the trial court by the prosecution witnesses is so glaring that the prospect of conviction after trial would be very bleak in case the accused respondents are summoned by the trial court as the additional accused to face the trial. But the contention of the counsel is that prima facie there is material available on record which should justify at least the summoning of the accused u/s 319 Cr.P.C. 4. Learned A.G.A in rebuttal has submitted that the version given in the trial court by the witnesses is not only repugnant to the version given in the F.I.R. but is also irreconcilable with the same. At the first instance the case was shown to be a case of a pure accident taking place on the road as a result of negligent driving of only one accused Nirmal Singh but later on not only the place of occurrence has been changed and shifted but an entirely new story alleging the homicidal death and that too in a house has been alleged. The number of the persons whose complicity is alleged at the stage of the trial has also swelled up from one to eight. The diagonal contradiction in the versions given at different stages makes the evidence wholly unworthy of reliance on the basis of which the additional respondent nos. The number of the persons whose complicity is alleged at the stage of the trial has also swelled up from one to eight. The diagonal contradiction in the versions given at different stages makes the evidence wholly unworthy of reliance on the basis of which the additional respondent nos. 2 to 6 have been sought to be summoned. According to A.G.A. there was no justification for the court to allow the application and the same has been rightly rejected. 5. The court had the occasion to peruse the impugned order and the evidence on record. The learned trial court has rightly pointed out that the statement of P.W.8- Neeraj Saxena alias Gudiya who has launched allegations against the respondents about their presence in the house at the time of the death of the deceased and who claims to have heard the accused uttering words which are incriminating in nature, flies in the face of the contents given in first information report which was lodged by the First Informant who is the real sister of P.W.8. There is no convincing explanation as to why the version given by P.W.8 shall not find its place in the F.I.R. specially when the First Informant had already met P.W.8 before lodging the F.I.R. Apart from this there is no body who has seen the respondents either assaulting the deceased or having any kind of weapons with them. It has also been taken into account by the trial court that the contents of Exbt. Ka-2 which is an affidavit filed by another sister of First Informant and who has been examined as P.W.2 in the court also does not support the version given by P.W.8. The contents of the F.I.R. which are wholly incompatible with the version given in the trial court has also been taken into account. The trial court has rightly come to the conclusion that the evidence produced in the trial court is wholly unsatisfactory and not worth placing reliance for the purpose of summoning the additional accused u/s 319 Cr.P.C. 6. Whether an accused ought to be summoned u/s 319 Cr.P.C. or not is primarily the judicial discretion of the trial court and this Court pays due regard to the same. Whether an accused ought to be summoned u/s 319 Cr.P.C. or not is primarily the judicial discretion of the trial court and this Court pays due regard to the same. Even in cases where the court may feel inclined to take a different view of the matter, it is slow to replace the lower Court's decision and substitute the same by its own unless of course it is found that the discretion exercised by the lower court lacks the elements of propriety or smacks with perversity of approach. This court also does not feel shy to interfere and set right an order whose legality may be assailed or where the trial court failed to exercise its jurisdiction even though it was imperative on it to do so. To have the power to summon the accused is one thing but how and when to exercise it appropriately in a given case is entirely a different matter. Mere ipse-dixit of the witnesses without looking into its worth or value can never be a good approach to decide whether an additional accused ought to be summoned or not. If the evidence produced is bristling with high improbability and the nature of the evidence is wholly unworthy of credence being mutually incompatible and inconsistent with each other, it should never be expected that even in such circumstances the trial court must proceed to summon the additional accused simply because some witnesses have chosen to utter his name on oath as an offender. 7. It is true that in order to see appropriateness of summoning the additional accused it is not at all necessary for the trial court to ascertain that the evidence produced by prosecution should also be good enough to entail conviction of the accused nor it is essential to adjudge the ultimate reliability or acceptability of the evidence at that stage. Such an exercise or approach must be reserved to be applied at the stage of final adjudication on the point of guilt or innocence of the accused. But the degree of satisfaction needed to decide on the point of summoning the accused at the initial stage envisaged u/s 204 Cr.P.C. and the degree of satisfaction required or which may suffice in order to summon an additional accused u/s 319 Cr.P.C. are qualitatively different from each other. But the degree of satisfaction needed to decide on the point of summoning the accused at the initial stage envisaged u/s 204 Cr.P.C. and the degree of satisfaction required or which may suffice in order to summon an additional accused u/s 319 Cr.P.C. are qualitatively different from each other. The stage of summoning an additional accused u/s 319 Cr.P.C. mostly, if not always, comes after the process of trial is already afoot and certain witnesses have already been examined. Again it also happens often, if not always, that the additional accused sought to be summoned was nominated by the first informant, but his complicity was found to be false by way of investigation in the case. There are many such reasons and factors that make it desirable that a higher standard or degree of judicial satisfaction ought to be applied before deciding that the additional accused should be summoned to face the trial even though there is nothing in law to preclude the courts from summoning those who have been exonerated by the police or in whose favour a final report has already been submitted. The yardstick of cursory prima facie satisfaction about the sufficiency of grounds to proceed against the accused u/s 204 Cr.P.C. ought to be tempered with deeper circumspection and need to be augmented with higher judicial vigil when the court is to decide on the appropriateness of summoning an additional accused u/s 319 Cr.P.C. This is much more so when the court is seized with the issue to summon those whose complicity in the crime has been either found to be false through a fair investigation or whose complicity in crime was never indicated by witnesses or by the first informant at the earlier stages and against whom the indictment has surfaced for the first time during the trial itself. 8. 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. 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. 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. 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." 9. The nature of evidence produced by the prosecution in the present case is such that no other view could have been reasonably taken than the view which has been expressed and adopted by the trial court. 10. The reasoning adopted and the martialling of facts done by the trial court is very sound and is certainly beyond reproach. I do not see any good ground to interfere with the impugned order and the counsel for the revisionist too has not been able to point out any such illegality or error on the basis of which the impugned order may be faulted with. 11. The revision is sans merit and the same stands rejected therefore.