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Madhya Pradesh High Court · body

2016 DIGILAW 562 (MP)

Pratap Singh v. State of M. P.

2016-07-15

JARAT KUMAR JAIN

body2016
ORDER 11. This revision under section 397 read with section 401 of the CrPC has been filed against the order dated 26.11.2015 passed by Additional Sessions Judge (ASJ), Garoth, District Mandsaur in S.T. No.250/2015 whereby allowed the application under sections 193 and 319 of CrPC and directed for issuance of non-bailable warrant of arrest against the applicant. 2. Brief facts of the case are that the complainant Charansingh lodged a written complaint stating that on 3.7.2015 he along with his maternal uncle Gajendra Singh, grandmother Phoolkunwarbai, grand-maternal-father Dungarsingh went to their agricultural field where they were ploughing the land. At that time, Bajrangsingh, Ramsingh, Devisingh, Bajrang s/o Vijay, Pappu, Govind, Mangu armed with iron rod and axe came there and started quarreling. They caused serious injuries to Gajendrasingh, Dungarsingh and Phoolkunwarbai. Gajendrasingh succumbed to the injuries. Crime No.298/2015 was registered at Police Station Garoth under sections 147, 148, 149, 447, 323, 302 of the IPC. After completion of investigation final report has been filed against 7 persons. The case was committed to the Court of Sessions and it was made over to Additional Sessions Judge (ASJ), Garoth for trial. Complainant Charansingh filed an application under sections 193 and 319 of the CrPC on the ground that in his statement under sections 164 of the CrPC stated that the present applicant Pratapsingh was also involved in the incident and has caused injury to the deceased Gajendrasingh. After hearing the parties, learned ASJ by the impugned order allowed the application and has taken the cognizance against the applicant Pratapsingh and issued non-bailable warrant against him. Being aggrieved, applicant has filed this revision. 3. Learned counsel for the applicant submits that the crime has been registered on the basis of written complaint made by complainant Charansingh to SHO, Jhalawad on 4.7.2015.Thereafter, police has recorded the statement of complainant and other witnesses on 4.7.2015 and in that there is no reference about the applicant. During investigation, on 21.7.2015, statement under section 164 of the CrPC of complainant was recorded and in that statement, complainant stated that the present applicant Pratapsingh was also present along with other co-accused and applicant has caused the injury by axe on both hands of the deceased Gajendrasingh. However, other eye-witnesses have not stated a word against the present applicant. During investigation, on 21.7.2015, statement under section 164 of the CrPC of complainant was recorded and in that statement, complainant stated that the present applicant Pratapsingh was also present along with other co-accused and applicant has caused the injury by axe on both hands of the deceased Gajendrasingh. However, other eye-witnesses have not stated a word against the present applicant. He cited the judgment of Hon’ble apex Court in the case of Sarabjeet Singh v. State of Punjab [ AIR 2009 SC 2792 ], and submitted that powers under section 319 is an extraordinary power which has to be used very sparingly and only if compelling reasons exist for taking action against a person who had not been arrayed as accused earlier. In the present case, there is no compelling reason. From the statement of complainant Charansingh it reveals that he has improved his earlier statement and implicated the present applicant. Thus, the impugned order is not justified, therefore, it be set aside. 4. On the other hand, learned counsel for the respondent State supports the impugned order and prayed that this revision be dismissed. 5. Before adverting to the issue, I would like to refer the judgment of apex Court in the case of Sarabjeet Singh (supra), in which it is observed as under: “17. The provision of section 319 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? Indisputable, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make our 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 [IT 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. We may notice that in Y. Saraba Reddy V. Puthur Rami Reddy and another [IT 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 319 contemplates that evidence of witnesses given in the Court …” An order under section 319 of the Code, therefore, should not be passed only because the first information 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. 18. 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. 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 319 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.” 6. Keeping in view the aforesaid pronouncement, I have examined the facts of the case. 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.” 6. Keeping in view the aforesaid pronouncement, I have examined the facts of the case. Learned ASJ has taken the cognizance only on the basis of statement of complainant Charansingh recorded under section 164 of the CrPC and ordered issuance of non-bailable warrant against the applicant. The crime was registered on a written complaint of the complainant to the SHO, Jhalawad on 4.7.2015. In this complaint, there is no reference about the applicant Pratapsingh. As per complaint, Dungarsingh, Phoolkunwarbai, Dilip Singh, Premsingh are the eye witnesses and in their police-statement, they have not stated against the present applicant Pratapsingh. Charansingh’s statement under section 164 of the CrPC has been recorded by the Magistrate on 21.7.2015 i.e. after 16 days. In this statement, for the first time Charansingh disclosed that at the time of incident, applicant Pratapsingh was also present armed with axe and he has caused injury to deceased Gajendrasingh. In this statement, Charansingh stated that at the time of lodging the report and giving the police statement, he has stated that the applicant Pratapsingh was also present at the time of incident and he does not know why his name has not been mentioned in the report and earlier statement. It is to be seen that the police has registered the crime on a written complaint of the complainant Charansingh. Therefore, his explanation that the police has not mentioned the name of the applicant Pratapsingh in his earlier report is incorrect and none of the witnesses have supported the version of the complainant Charansingh. 7. The apex Court in the case of Sarabjeet Singh (supra), held that at the stage of framing of charge Court must be satisfied that there exists a strong suspicion. While framing the charge in terms of section 227 of the Code, the Court must consider the entire material on record to form an opinion that the evidence, if unrebutted, would lead to a judgment of conviction. However, a higher standard to be set up for the purpose of invoking the jurisdiction under section 319 of the CrPC. While framing the charge in terms of section 227 of the Code, the Court must consider the entire material on record to form an opinion that the evidence, if unrebutted, would lead to a judgment of conviction. However, a higher standard to be set up for the purpose of invoking the jurisdiction under section 319 of the CrPC. Unless a higher standard for the purposes of forming an opinion to summon a person as an additional accused exists, then the Court should exercise such an extraordinary jurisdiction and such powers should be exercised sparingly. 8. I am of the view that at this juncture, no compelling reason exists for taking action against the applicant. Learned ASJ has not properly appreciated the material on record and without sufficient and cogent reason, he has allowed the application. Thus, the impugned order is not sustainable in law. 9. In view of the aforesaid, this revision deserves to be and is hereby allowed. The impugned order dated 26.11.2015 directing issuance of non-bailable warrant against the applicant is hereby set aside. Let a copy of this order be sent to the trial Court for information and compliance.