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2016 DIGILAW 2464 (ALL)

Jai Kishore v. State of U. P.

2016-07-15

RAVINDRA NATH KAKKAR

body2016
JUDGMENT Ravindra Nath Kakkar, J. In compliance of the previous order written notice has been sent to the counsel for the opposite party no. 2 whose name is printed in the cause list but no one has appeared and no counter affidavit has been filed on behalf of opposite party no. 2. 2. This criminal revision has been filed against the order dated 4.5.2013 passed by Additional Sessions Judge ( Court No. 2), Firozabad, rejecting the order dated 23.7.2012 passed by Additional Chief Judicial Magistrate-I, Firozabad by which the opposite party no. 2 Smt. Meera was summoned under Section 319 Cr.P.C. to face trial Under Sections 323, 326, 504, 506 IPC with other accused persons in Case No. 1362 of 2012, State of U.P. Vs. Deepak and Others, pending in the Court of A.C.J.M.-Ist, Firozabad. 3. Facts, in brief, are that initially on the basis of an information to the police station a case under Sections 323, 504 and 506 IPC was registered as NCR No. 91 of 2009 which was later on converted into Crime No. 345 of 2009. Investigating Officer filed a charge sheet against the co-accused Deepak and Awdhesh under Sections 323, 326, 504 and 506 IPC. During trial statement of informant PW1 Jai Kishore and PW2 Smt. Preeti were recorded and they have clearly stated the role and involvement of opposite party no. 2. Thereafter, an application under Section 319 Cr.P.C. moved before the trial court for summoning opposite party no. 2 Smt. Meera as an accused which was allowed by A.C.J.M.-Ist, Firozabad and opposite party no. 2 Smt. Meera was summoned for facing trial under Sections 323, 326, 504 and 506 IPC. 4. Aggrieved against the aforesaid order a revision was preferred before Additional Sessions Judge, Firozabad and the same was allowed by the Additional Sessions Judge, Court No. 2, Firozabad by order dated 4.5.2013, which is under challenge before this Court. 5. As per prosecution on 13.8.2009 at about 08: 00 AM when Smt. Preeti Devi wife of complainant was going towards her field, accused Deepak obstructed her way, abused her and thereafter accused Deepak, Avdhesh and Meera at about 12:00 O'clock had beaten the complainant Jai Kishore, husband of Smt. Preeti with lathi and danda and accused Deepak caused teeth bite on the left hand of complainant Jai Kishore. The incident was witnessed by the neighbours of the complainant and thereafter accused left the place of occurrence by threatening the complainant and his wife to kill them. 6. Learned counsel for the revisionist made submissions before this Court that the impugned order dated 4.5.2013 is unjust, improper, against the evidence available on records and totally based on surmises and conjectures. He further contended that there is specific allegations against all the accused persons including opposite party no. 2 Smt. Meera in the NCR dated 13.8.2009, lodged by the revisionist and the same was also corroborated by the statement of other witnesses but the Investigating Officer had not chargesheeted the name of opposite party no. 2 Meera in the charge sheet with an ulterior motive. It is further submitted that PW1 Jai Kishore and PW2 Smt. Preeti in their statement recorded before the trial court clearly stated the role and involvement of opposite party no. 2 Meera but the revisional court erroneously rejected the summoning order passed by the trial court. It is further submitted that injury report is also in favour of the prosecution. It is further submitted that revisional court had rejected the summoning order in arbitrary manner which is not sustainable in the eyes of law. Therefore, he prayed to set aside the impugned order dated 4.5.2013 passed by Additional Sessions Judge, Firozabad. 7. To the contrary learned A.G.A. has made submissions that the impugned order is a reasoned order and the learned Additional Sessions Judge after perusal of the record has come to the conclusion that there is no sufficient evidence to summon the proposed accused opposite party no. 2 Smt. Meera. It is next submitted that application under Section 319 Cr.P.C. was correctly dismissed, therefore, the revision preferred before this court is liable to be dismissed. 8. I have considered the submissions advanced by both the parties and perused the orders impugned along with documents annexed there with. 9. 2 Smt. Meera. It is next submitted that application under Section 319 Cr.P.C. was correctly dismissed, therefore, the revision preferred before this court is liable to be dismissed. 8. I have considered the submissions advanced by both the parties and perused the orders impugned along with documents annexed there with. 9. For a ready reference Section 319 Cr.P.C. is reporduced hereinunder : - "319 Cr.P.C.- Power to proceed against other persons 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." 10. It is relevant to mention here that initially the incident was reported to the concerned Police Station-Matsaina, District-Firozabad and on the basis of the first information a NCR was registered against the three accused persons namely Deepak, Awdhesh and Smt. Meera under Sections 323, 504 and 506 IPC in which it is specifically stated that at the time of occurrence all the three accused persons were participated in the Marpeet and cuased injury to the victim. Complainant PW1 Jai Kishore during trial in his statement has supported the incident as mentioned in the NCR and specifically stated that all the three accused Deepak, Awdhesh and Smt. Meera were present at the time of incident with a motive to cause injury to him and his wife . Complainant PW1 Jai Kishore during trial in his statement has supported the incident as mentioned in the NCR and specifically stated that all the three accused Deepak, Awdhesh and Smt. Meera were present at the time of incident with a motive to cause injury to him and his wife . He had further deposed that accused persons had come with preparation with lathi and danda and all the three accused persons had participated in the Mar Peet and One of the accused Deepak caused teeth bite injury on his left thumb. PW2 Smt. Preeti wife of complainant also supported the version of PW1. 11. The learned Additional Chief Judicial Magistrate relying on the materials placed before him at the time of disposal of an application under Section 319 Cr.P.C., summoned the accused opposite party no. 2 Meera whose order was set-aside in revision by Additional Sessions Judge and the reason assigned in the impugned order that specific role of proposed accused Meera has not come on the record. While appraising the material the learned Judge misinterpreted the statement of witness as nowhere PW1 stated that accused Deepak caused teeth bite injury of his wife Preeti. The finding recorded by the learned Judge transpired that the presence of the proposed accused Smt. Meera was found to be established at the time of incident on the place of occurrence but in spite of this the revision was allowed and the finding recorded by the trial court was set-aside. 12. So far as legal proposition is concerned, the Hon'ble Apex Court in the case of Hardeep Singh & Others Vs. State of Punjab and others (2014) 3 SCC Page 92 made the following observations: - 87. In Pyare Lal Bhargava v. The State of Rajasthan, AIR 1963 SC 1094 , a four-Judge Bench of this Court was concerned with the meaning of the word ''appear'. The court held that the appropriate meaning of the word ''appears' is ''seems'. It imports a lesser degree of probability than proof. In Ram Singh & Ors. v. Ram Niwas & Anr., (2009) 14 SCC 25 , a two-Judge Bench of this Court was again required to examine the importance of the word ''appear' as appearing in the Section. The court held that the appropriate meaning of the word ''appears' is ''seems'. It imports a lesser degree of probability than proof. In Ram Singh & Ors. v. Ram Niwas & Anr., (2009) 14 SCC 25 , a two-Judge Bench of this Court was again required to examine the importance of the word ''appear' as appearing in the Section. The Court held that for the fulfillment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as an accused in the case. 88. 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 319 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- Judge 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. In Hardeep Singh (supra), the Hon'ble Apex Court has elaborately explained the scope and extent of the powers of the courts under the criminal justice system to arraign any person as an accused during the course of inquiry or trial as contemplated under Section 319 of Cr.P.C. In Pyare Lal Bhargava v. The State of Rajasthan, AIR 1963 SC 1094 , Hon'ble Apex Court held that the appropriate meaning of the word ''appears' is ''seems'. It imports a lesser degree of probability than proof. It imports a lesser degree of probability than proof. In Vikas v. State of Rajasthan, 2013 (11) SCALE 23 , Hon'ble Apex Court 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. In Rajendra Singh Vs. State of U.P. & Another, AIR 2007 SC 2786 , the Hon'ble Apex Court observed as follows: - "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 319 of the Code. x x x x 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 319 of the Code or not." 13. As discussed above proposed accused opposite party no. 2 Smt. Meera Devi was named in the NCR dated 13.8.2009. During trial in their statements PW1 Jai Kishore and his wife PW2 Smt. Preeti had specifically and categorically deposed regarding involvement of proposed accused opposite party no. 2 Smt. Meera along with other co-accused. More so, learned trial court on the basis of material available on record summoned the opposite party no. 2 Smt. Meera under Section 319 Cr.P.C. As per the law laid down the revisional court while setting aside the order of the trial court had not taken note of the statements of the witnesses PW1 and PW2 in a legal prospective. In the cross-examination of PW1 Jai Kishore who is complainant and injured witness, it has come in the statement that among the three accused who were named in the NCR (first information), two had caught hold the victim and accused Deepak caused teeth bite injury on the left hand thumb of the complainant/injured. It appears that on the basis of this injury offence under Section 326 IPC has been added in the investigation and final charge sheet submitted under Sections 323, 326, 504 and 506 IPC. It appears that on the basis of this injury offence under Section 326 IPC has been added in the investigation and final charge sheet submitted under Sections 323, 326, 504 and 506 IPC. It is a matter of fact that finding recorded by the learned revisional court confirmed the finding of the trial court to the extent of presence of the all the three accused who had named in the NCR (first information) at the place of occurrence in spite of this the revisional court had set aside the order of the trial court wherein proposed accused Smt. Meera has been summoned to face trial along with other accused. The revisional court perhaps overlooked the statement of PW1/complainant/injured witness to the effect that genesis of the incident was an altercation between the accused and the complainant at 8: 00 AM in the morning of the same day. Later on all the three accused at about 12: 00 Noon came to the place of occurrence armed with lathi and danda and started abusing the complainant and had beaten the complainant and his wife. As already stated PW1 in his deposition categorically stated that two accused caught hold the complainant and accused Deepak caused teeth bite injury on his left thumb. Prima facie this ocular testimony is in consonance with the medical report of the injured Jai Kishore which is annexed in this revison as annexure-2. PW2 Smt. Preeti who is wife of PW1 also supported the prosecution version to the extent of the presence of all the three accused and their complicity and involvement in the commission of the crime as above stated. Injury report of the victim shows that there are as many as five visible injuries on the body of the injured victim. 14. It is also to mention here that even the prosecution story has been himself misunderstood by the learned Additional Sessions Judge stating in the impugned judgement in so manner that accused Deepak caused teeth bite injury to Smt. Preeti whereas the prosecution story is that the accused Deepak caused teeth bite injury to complainant Jai Kishore. 15. Keeping all the facts and circumstances as stated above, the legal proposition as above mentioned, I am of the considered view that there is prima facie sufficient legal evidence required under Section 319 Cr.P.C. for summoning the proposed accused Smt. Meera to face the trial with other co-accused. 15. Keeping all the facts and circumstances as stated above, the legal proposition as above mentioned, I am of the considered view that there is prima facie sufficient legal evidence required under Section 319 Cr.P.C. for summoning the proposed accused Smt. Meera to face the trial with other co-accused. Accordingly, I hold that finding of the trial court allowing the application of the revisionist for summoning the accused Meera under Section 319 Cr.P.C. was just, proper and legal whereas the finding of the revisional court setting aside the summoning order of the trial court found to be erroneous in the eyes of law, suffered from infirmities and illegalities, accordingly, not sustainable in the eye of law, therefore, liable to be set aside and consequently the revision is to be allowed and the order of the trial court for summoning the opposite party no. 2 Smt. Meera to face trial is to be confirmed. 16. The revision is disposed of accordingly. Let a certified copy of the judgement be transmitted to the court concerned for compliance.