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2018 DIGILAW 287 (ALL)

BHAGWANI DEVI v. STATE OF Uttar Pradesh

2018-02-02

AMAR SINGH CHAUHAN

body2018
JUDGMENT : Hon'ble Amar Singh Chauhan,J. 1. In spite of personal service on opposite party no. 2, nobody turned up on his behalf even in the revised list. 2. Heard learned counsel for the revisionists, learned AGA and perused the material on record. 3. The revisionist, Smt. Bhagwani Devi and one other, have preferred this criminal revision against the order dated 21.2.2012 passed by the District and Sessions Judge, Sant Kabir Nagar in Special S.T. No. 37 of 2008 (State Vs. Gorakh) by which the application under Section 319 Cr.P.C. was allowed and revisionists were summoned to face the trial under Sections 323, 504, 506 IPC and 3(1)(X) SC/ST Act. 4. Brief facts which give rise to the revision are that the FIR was lodged on the application moved under Section 156(3) Cr.P.C. with the allegation that the revisionists and one other co-accused namely Gorakh Yadav came to the PCO and asked to dial the phone but on being made demand of previous charges, the accused become annoyed and started to beat by lathi, kick and fist by using the filthy abuses with casting remark. The investigating officer after concluding the investigation submitted the charge sheet against the Gorakh Yadav and exonerated the revisionists. During trial after deposition of two prosecution witnesses, the application was moved under Section 319 Cr.P.C. to summon the revisionist by alleging that the revisionist also assaulted by kick and fist and also used deliberately casting abuses. On being heard, the application was allowed by the Sessions Judge and the revisionists were summoned to face the trial. 5. Feeling aggrieved, the revisionists came up in this revision before this Court. 6. It is submitted by the learned counsel for the revisionists that the impugned order has been passed without recording any finding regarding its satisfaction to the effect that there is a likelihood of conviction of the revisionists. It is further submitted that the power under Section 319 Cr.P.C. should have exercised very sparingly and not in a routine manner but the impugned order lacks such requirement. Mere prima facie case is not sufficient to exercise the power under Section 319 Cr.P.C. rather the evidence should be unrebuted would lead to the conviction of the person. It is also submitted that till date only two witnesses have been examined before the trial court but those witnesses were of family members. Mere prima facie case is not sufficient to exercise the power under Section 319 Cr.P.C. rather the evidence should be unrebuted would lead to the conviction of the person. It is also submitted that till date only two witnesses have been examined before the trial court but those witnesses were of family members. The independent witnesses have not been recorded till date as such the Sessions Judge was very much in hurry in not waiting the further independent evidence. 7. Learned counsel for the revisionists has relied upon the case of Brijendra Singh Vs. State of Rajasthan [Laws (SC) 2017 4 51] in which the Apex Court has held that "Power under Section 319 Cr.P.C. is a discretionary and an extraordinary 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 cavailer manner." 8. Per Contra, learned AGA has contended that the revisionists along with the main accused Gorakh Yadav came to the PCO of the informant and without paying previous outstanding charge of dialing phone used to start beating by lathi, kick and fist, the complainant sustained injuries and as per medical report, the bone of the wrist found fractured. There is clinching evidence against the revisionists for hurdling abuses with casting remarks and also beating with a public view. 9. Before adverting to the claim of the parties it is useful to quote section 319 Cr.P.C. "319. Power to proceed against other persons appearing 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. (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 a fresh, 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." Hon'ble Supreme Court in the case of Hardeep Singh vs State of Punjab and others and nine other connected cases, 2014 (1) JIC 539 (SC), it has been held that it is the duty of the Court to give full effect to the words used by the Legislature so as to encompass any situation which the Court may have to tackle while proceeding to try and offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution. 10. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded." 11. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded." 11. In the case in hand, the co-accused Gorakh Yadav is said to have caused injury by lathi to the complainant and only one injury i.e. bone of the right hand of the applicant's was found to be fractured. The role of beating by kicks and fists is assigned to the revisionists but no such injury was found on the body of the complainant. There is no evidence that in what casting words with a public view the complainant was abused by the revisionists whereas the occurrence took place inside the shop. 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 but in the instant case no finding was recorded regarding satisfaction to the effect that there is a likelihood of conviction of revisionists. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. The proceedings against the revisionists is nothing more than abuse of the process of Court. 12. In view of what has been discussed above, submission, legality, propriety and correctness of the order, the revision is liable to be allowed. 13. Accordingly, the revision is allowed and the impugned order dated 21.2.2012 passed by the District and Sessions Judge, Sant Kabir Nagar in Special S.T. No. 37 of 2008 (State Vs. Gorakh) by which the revisionists were summoned under Section 319 Cr.P.C. is hereby set aside and the matter is remanded back to the Court to decide the application under Section 319 Cr.P.C. afresh according to law.