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2018 DIGILAW 512 (ALL)

BHURE v. STATE OF Uttar Pradesh

2018-02-27

RAJUL BHARGAVA

body2018
JUDGMENT : Hon'ble Rajul Bhargava,J. 1. Heard Sri Amit Rana, learned counsel for the revisionists, Sri Mohammad Belal, learned counsel for the opposite party no.2 and learned A.G.A. for the State and perused the material placed on record. 2. This criminal revision has been filed for quashing the order dated 12.2.2018 passed by Additional District and Sessions Judge, Fast Track Court-II, Hapur in S.T. No.276 of 2017 (State Versus Tarannum) arising out of Case Crime No.0165 of 2017, under Section 302 I.P.C., P.S. Shimbhawali, District Hapur, whereby the revisionists have been summoned to face trial under Section 302/34 I.P.C. in exercise of powers under Section 319 Cr.P.C. 3. It is argued by the learned counsel for the revisionists that the revisionists have been falsely implicated by opposite party no.2, though on the date of incident they were not present at the spot. During investigation it was found that they were present elsewhere and on the ground of alibi the Investigating Officer exonerated them and did not submit charge sheet against them. Learned counsel for the revisionists have further submitted that though the present case is a murder case and role has been attributed to the revisionists but since during investigation their complicity was not found, therefore, in view of the law laid down by Hon'ble Apex rendered in the case of Brijendra Singh and others Versus State of Rajasthan (2017) 7 SCC 706 ,? the summoning order passed by the court below is untenable. 4. I have carefully perused the order impugned dated 12.2.2018. 5. I may record that aforesaid judgement of Hon'ble Apex Court has been considered and clarified by a subsequent judgement in S. Mohammed Ispahani Versus Yogendra Chandak and others in Criminal Appeal Nos.1721 of 2017 and 1722 of 2017, decided on 4.10.2017 in para-s 32 and 33 which, it has been held as under; "32) As against the above, the High Court, in the impugned judgment, has been influenced by the fact that names of the appellants were mentioned in the FIR and even in the statement of witnesses recorded under Section 161 Cr.P.C.of the Cr.P.C. these appellants were named and such statements under Section 161 Cr.P.C. would constitute 'documents'. In this context, the High Court has observed that 'evidence' within the meaning of Section 319 Cr.P.C. would include the aforesaid statements and, therefore, the appellants could be summoned. In this context, the High Court has observed that 'evidence' within the meaning of Section 319 Cr.P.C. would include the aforesaid statements and, therefore, the appellants could be summoned. 33) The aforesaid reasons given by the High Court do not stand the judicial scrutiny. The High Court has not dealt with the subject matter properly and even in the absence of strong and cogent evidence against the appellant, it has set aside the order of the Chief Metropolitan Magistrate and exercised its discretion in summoning in summoning the appellants as accused persons. No doubt, at one place the Constitution Bench observed in Hardeep Singh's case that the word 'evidence' has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. In paragraph 105 of the judgment, Criminal Appeal No. 1720 of 2017 & Ors. 6. However, it is observed that '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 cavalier manner. This sentence gives an impression that only that evidence which has been led before the Court is to be seen and not the evidence which was collected at the stage of inquiry. However there is no contradiction between the two observations as the Court also clarified that the 'evidence', on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the Court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C." 7. In view of aforesaid observations of Hon'ble Apex Court, it is abundantly clear the the statements recorded under Section 161 Cr.P.C. and the material collected during investigation cannot be taken into account as an evidence for summoning any accused and it is only the evidence recorded during trial which can form basis for exercise of powers under Section 319 Cr.P.C. 8. With due respect, I may record that in judgement rendered by the Apex Court in Brijendra Singh (supra), the case was decided on its own merits and it does not lay down a ratio that plea of alibi or the evidence/material collected during investigation can be treated as part of evidence which can be taken into account in exercise of powers under Section 319 Cr.P.C. The law in this behalf has been settled by the Constitution Bench of the Apex Court in Hardeep Singh Versus State of Punjab (2014) 3 SCC 92 . 9. Keeping in view of the aforesaid facts and law laid down by the Apex Court, I find no scope for interference in the impugned order passed by the trial court at this stage. However, in case the revisionists appear and surrender before the court below within a period of six weeks from today and apply for bail, the same shall be considered and decided expeditiously in accordance with law.