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2017 DIGILAW 1081 (ALL)

Rama Kant Shukla v. State of U. P.

2017-04-21

RAVINDRA NATH MISHRA

body2017
JUDGMENT : Ravindra Nath Mishra, J. 1. This criminal revision has been preferred against the order dated 15.11.2014 passed by Additional Sessions Judge, Court No.09, Gonda in Sessions Trial No. 95 of 2014 (State v. Shrawan Kumar and others) arising out of Case Crime No. 351 of 2013 under Sections 147, 148, 149, 304, 323, 506, 324 and 325 I.P.C., Police Station Mankapur, District Gonda, by means of which application moved by prosecution under Section 319 for summoning opposite party no.2 to 5 has been rejected. 2. Brief facts giving rising to this revision are that F.I.R. was lodged on 07.12.2013 by complainant Rama Kant in Police Station Mankapur, District Gonda that on 07.12.2013 at about 7.30 a.m. his son Hanuman Prasad was cutting cattle fodder in fodder machine, meanwhile Radheshyam, Dadhichi, Sharwan Kumar, Uttam Shukla, Adya Shankar, Daya Shankar, Bhawani Sahai, Ram Shankar, Shiv Shankar and Radhye Shayam armed with "lathi-danda" and "Kulharhi" came in and started beating him. Wife of the complainant Smt. Durga Devi raised alarm and tried to save Hanuman Prasad and in attempt to save him she also lied over her son. Responding to her hue and cry the complainant and other family members rushed towards the place of occurrence. Accused Shrawan Kumar and Dhadhichi were beating his son and his wife Dhadhichi gave a fatal blow on head of his wife Durga Devi with his "lathi" resulting in her death immediately at spot. In this mar-peet Hanuman Prasad, Romi, Guriya and Kamal also suffered injuries. On receiving information police reached the spot and took injured persons to Mankapur hospital, where Durga Devi was declared dead by doctors. F.I.R. was lodged and investigation was conducted culminating into filing of charge-sheet except against Daya Shanker, Ram Shanker, Ravi Shankar, Adaya Shankar and Uttam Shankar. After examination of witnesses an application under Section 319 Cr.P.C. was moved by prosecution to summon Daya Shanker, Ram Shankar, Ravi Shankar, Adaya Shankar and Uttam Shankar as accused on the ground that the witnesses examined in Court, have named these persons as accused and they were also assailant. However, after hearing prosecution, Additional Sessions Judge, Court No.9, Gonda rejected the application moved under Section 319 Cr.P.C. on the ground that the evidence adduced by prosecution was not prima facie sufficient to conclude trial into conviction of above named persons. 3. However, after hearing prosecution, Additional Sessions Judge, Court No.9, Gonda rejected the application moved under Section 319 Cr.P.C. on the ground that the evidence adduced by prosecution was not prima facie sufficient to conclude trial into conviction of above named persons. 3. Feeling aggrieved by the order dated 15.11.2014 passed by Additional Sessions Judge, Court No.9, Gonda the complainant has preferred this revision. 4. Before entering into merit of the case, I think it expedient to reproduce Section 319 Cr.P.C. for the sake of convenience and better understanding. Section 319 reads as under: "(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 the 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." 5. Words "appearing" in Section 319 Cr.P.C. " appears from the evidence that any person not being the accused has committed any offence" are of importance and from which question arises as to what is the nature of satisfaction of the Court to invoke the power under Section 319 Cr.P.C., whether Court is required to look for sufficient prima facie evidence or to look for sufficient material for conviction of person sought to be summoned as accused. Relying on Basanti and others v. State of U.P. and another 2011 (1) JIC page 436 (Allahabad), Sajid v. State of U.P. and others 2010 (1) JIC page 291 (Allahabad) and Sarabjit Singh and another v. State of Punjab and another 2009 (3) JIC page 552 (SC) lower Court has concluded that there must be sufficient material on record to satisfy the Court that the Trial would end in conviction of persons proposed to be summoned. 6. Thus Court below concluded that there was no material on record for conviction of non-charge-sheeted accused. 7. There was divergence of opinion on the point whether only prima facie evidence against proposed accused is required or Court must be satisfied of possible conviction on the basis of material available on record. 8. In Mohd. Shafi v. Mohd. Rafiq and others 2007 (58) ACC page 254 Hon'ble Apex Court has held that: “before a Court exercises, its jurisdiction in terms of Section 319 Cr.P.C., it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted”. 9. In Ram Singh v. Ram Niwas and others 2009 (65) ACC page 971 Hon'ble Apex Court has laid down that "mere existence of a prima facie case sufficient to exercise jurisdiction under Section 319 Cr.P.C. and the Court must arrive at satisfaction on evidence adduced on behalf of the prosecution if unrebutted, would lead to conviction of the person sought to be added as accused". 10. In Sarabjit and another v. State of Punjab and another 2009 (66) ACC page 32 Hon'ble Apex Court has observed that "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 persons. 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 purpose. Such an evidence must be convincing one at least for the purpose of exercise of extraordinary jurisdiction." 11. 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 purpose. Such an evidence must be convincing one at least for the purpose of exercise of extraordinary jurisdiction." 11. However, this controversy has been settled by constitutional Bench judgment of Hon'ble Supreme Court in Hardeep Singh v. State of Punjab and others 2014 (1) JIC page 539, in which Hon'ble Apex Court has held that "Section 319 springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C......." 12. Hon'ble Court further held that "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 Code of Criminal Procedure, 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." xxxxxx "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." 13. In view of the above exposition of law as propounded by constitutional Bench of Hon'ble Apex Court as above, while considering application under Section 319 Cr.P.C., Court has to look into only prima facie evidence against the person sought to be summoned as accused, though degree of satisfaction may be stricter. 14. Hon'ble Apex Court in Babubhai Bhimabhai Bokhiria and another v. State of Gujarat and others 2014 (2) JIC page 523 has further explained the proposition of law under Section 319 Cr.P.C. "Section 319 Cr.P.C. confers power of the trial Court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the text of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher". 15. Now it has been established that only prima facie evidence though degree of satisfaction is a bit higher has to be seen while considering application under Section 319 Cr.P.C., but material for possible conviction of the person sought to be added is not required. 15. Now it has been established that only prima facie evidence though degree of satisfaction is a bit higher has to be seen while considering application under Section 319 Cr.P.C., but material for possible conviction of the person sought to be added is not required. Thus in the present case the conclusion of Court below to the contrary is erroneous and not sustainable. 16. Thus Revision deserves to be allowed and impugned order to be set aside with a direction to the Court below to decide the matter afresh in the light of established principal of law as discussed in the body of judgment. 17. Revision is, therefore, allowed and impugned order dated 15.11.2014 passed by Additional Sessions Judge, Court No.09, Gonda in Sessions Trial No. 95 of 2014 (State v. Shrawan Kumar and others) arising out of Case Crime No. 351 of 2013 under Sections 147, 148, 149, 304 , 323, 506, 324 and 325 I.P.C., Police Station Mankapur, District Gonda, is hereby set aside with a direction to the Court below to pass order afresh on application under Section 319 Cr.P.C. taking into consideration observations made above.