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Madhya Pradesh High Court · body

2017 DIGILAW 1059 (MP)

Amar Singh Kamaria v. State of M. P.

2017-10-06

SHEEL NAGU

body2017
ORDER 1. The inherent powers of this Court are invoked under section 482 CrPC to assail the interlocutory order dated 3.12.2016 passed in S.T. No.112/2015 rendered by Additional Sessions Judge, Sewda, District Datia, by which the petitioners who are five in number have been directed to be arrayed as accused in the trial alleging offences punishable under sections 147, 148, 149, 302 and 307 IPC by invoking the provisions of section 319 CrPC by allowing the application preferred by complainant-Ramdevi. 2. Learned counsel for the rival parties are heard on the question of admission and as well as on final disposal. 3. The petitioners, who have been subsequently arrayed as accused, primarily submit that the trial Court has misdirected itself by allowing the applicant under section 319 CrPC on the following grounds :- Though the petitioners, who are named in the FIR lodged by Ramdevi, the mother of the deceased, alleged the offence of murder against the petitioners but the police while conducting investigation finding the plea of alibi and of false implication raised by the petitioners to be true, found no offence against the petitioners after conducting a detailed enquiry and after by taking conscious decision, did not array the petitioners as accused while filing the charge sheet in Crime No.99/2014 where only Satendra and Naval were arrayed as accused. 4. Learned counsel for the petitioners has placed on the decision rendered in the case of Hardeep Singh v. State of Punjab and others [ (2014)3 SCC 92 ], and the decision of the Single Bench rendered in the case of (Ajay Khemaria and another v. State of M.P. and another) [ 2017(1) JLJ 225 =(2017)1 MPLJ (Cr) 261]. It is an undisputed fact herein that the presence of the petitioners as well as overt act on the part of the petitioners is alleged in the FIR. Thereafter, it is seen that petitioners raised the plea of alibi and innocence which was found to be true by the investigating agency which thus did not array the petitioners as accused while submitting charge sheet under section 173(2) CrPC. 5. From the record, it appears that Ramdevi eye witness to the incident of murder of her son Dashrath Singh in her testimony as PW1 recorded on 19.1.2016, deposed before the Court that all the five petitioners were present armed with dangerous weapons and except Ramji Sharan all fired at the deceased. 5. From the record, it appears that Ramdevi eye witness to the incident of murder of her son Dashrath Singh in her testimony as PW1 recorded on 19.1.2016, deposed before the Court that all the five petitioners were present armed with dangerous weapons and except Ramji Sharan all fired at the deceased. 6. The trial Court on the basis of testimony of PW1 and others allowed the application under section 319 CrPC which ostensibly appears to be in-line with the object behind section 319 CrPC. However, learned counsel for the petitioners has brought to the notice of this Court recent decision of apex Court in the case of Brijendra Singh and others v. State of Rajasthan (Criminal Appeal No. 763/2017) rendered by Division Bench on 27.4.2017, reported in AIR 2017 SC 2839 , whereby the order of the trial Court allowing application under section 319 CrPC and the order of High Court upholding said trial Court's order, were set aside on the ground that the trial Court and the High Court failed to consider that though the name of the petitioners therein was mentioned in the FIR but the investigating agency after finding the plea of alibi and innocence to be correct did not array them as accused in the charge sheet and thus, trial Court without considering the exculpatory material and evidence produced by the petitioners in support of their plea of alibi before the investigating agency, wrongly passed the order passed under section 319 CrPC. The decision in the case of Brijendra Singh (supra), was rendered by the apex Court after taking into consideration the Constitution Bench decision in the case of Hardeep Singh (supra). The relevant paras 14, 15 and 16 are reproduced below :- “14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial Court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements unde section 161 CrPC to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. 15. This record was before the trial Court. Notwithstanding the same, the trial Court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the ‘evidence’ recorded during trial was nothing more than the statements which was already there under section 161 CrPC recorded at the time of investigation of the case. No doubt, the trial Court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial Court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ‘much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial Court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the revision petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial Court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny. Except reproducing the discussion contained in the order of the trial Court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny. 16. As a consequence, this appeal is allowed setting aside the order of summoning the appellants under section 319 CrPC.” 7. The above decision in the case of Brijendra Singh (supra), exposits that application under section 319 CrPC ought not to be mechanically allowed and the criteria of evidence required to successfully invoke section 319 is more than mere strong suspicion necessary for framing of charge. The apex Court further held that detailed enquiry conducted by the investigating agency finding the plea of alibi/innocence to be true cannot be brushed aside without going into the veracity or genuineness of the evidence/material supporting the plea of alibi which are found to be true during investigation. The apex Court finally found that mere statement of the eye witness in their testimony of involvement of the some persons, who are though accused in FIR but not in the charge sheet, cannot suffice a successful invocation of provision of section 319 CrPC, unless the veracity and genuineness of the foundational exculpatory material before the investigating agency which found the same to be sufficient for not arraying certain persons as accused, is considered by the trial Court. If this exculpatory material which the investigating agency found to be sufficient to exclude some persons from the array of accused appears to be genuine and trustworthy than there is no occasion for invoking section 319. This is so, as much stronger standard of proof is required at the time of allowing an application under section 319 CrPC than the one required at the time of framing of charge. Though the standard of proof necessary is more than mere suspicion but need not suffice to convict the persons proposed to be arrayed as accused under section 319 CrPC. 8. Though the standard of proof necessary is more than mere suspicion but need not suffice to convict the persons proposed to be arrayed as accused under section 319 CrPC. 8. When the legality and validity of the impugned order is tested on the anvil of the law laid down by the apex Court in the case of Hardeep Singh (supra), as well as Brijendra Singh (supra), it is crystal clear that there is no discussion in the impugned order of the trial Court as regards the genuineness and veracity of the material/evidence which was found by the investigating agency to be exculpatory enough to exclude the petitioners from the array of accused at the time of filing of charge sheet. 9. The decision of the single bench of this Court in Ajay Khemaria (supra), is of no avail to the respondent in the face of recent decision of apex Court in Brijendra Singh case (supra), which is attended with facts similar to the facts of the case at hand. 10. In view of the above, this Court is of the considered opinion that the trial Court has failed to exercise the jurisdiction vested in it under section 319 CrPC in its right perspective and in-line with the law laid down in the case of Hardeep Singh and Brijendra Singh (supra), and to that extent interference with the impugned order is warranted, lest failure of justice would occasion. 11. Accordingly, the present petition is allowed to the following extent :- (i) The impugned interlocutory order dated 3.12.2016 passed in ST. 112 /2015 pending before the ASJ, Sewdha, District Datia is set aside to the extent it allows the application under section 319 CrPC preferred by the respondent No.2/complainant. (ii) The trial Court is directed to re-consider the application under section 319 CrPC in-line with the law laid down by the apex Court in the Hardeep Singh (supra) and Brijendra Singh (supra), rendered on 27.4.2017 in Criminal Appeal No.763/2017 by the apex Court by hearing the rival parties on the said application and rendering a specific finding in regard to genuineness, veracity and trustworthyness of the material/evidence which was found by the investigating agency to be exculpatory enough to exclude the petitioners from the array of accused and thereafter pass a speaking order as expeditiously as possible. (iii) It is made clear that inquiry necessary for implementing this order shall not involve adducing of evidence but one based exclusively on documents. (iv) Petitioners as well as prosecution shall appear before the trial Court for the said purpose on 10th October, 2017 to enable the trial Court to proceed in the matter in terms of this order.