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2019 DIGILAW 1664 (ALL)

Satvir v. State Of U. P.

2019-07-11

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : Pradeep Kumar Srivastava, J. Heard Sri V.M. Zaidi, learned Senior Counsel assisted by Sri M.J. Akhtar, learned counsel for the revisionist, Sri Vindeshwari Prasad, learned counsel appearing on behalf of opposite party no. 2, learned A.G.A. and perused the record annexed with this revision. 2. The present criminal revision has been preferred with the prayer to set aside the judgment and order dated 20.09.2016, passed by Additional Sessions Judge/Special Judge, SC/ST Act, Amroha, in Sessions Trial No. 4 of 2016 (State vs. Munnu and others), under Section 307, 323, 506 I.P.C, arising out of Case Crime No. 248 of 2015, Police Station Naugawan Sadat, District Amroha (J.P. Nagar). 3. Brief facts are that an application was filed by the prosecution which is annexed as Annexure No. 5 to the present criminal revision stating that Amit Kumar (informant) lodged a FIR naming four persons. After investigation, the Investigating Officer submitted charge sheet against Munnu & Bania and other two accused namely Rajendra & Satvir were exonerated. During trial the statements of PW-1 and PW-2 were recorded. They gave statements against accused Rajendra Singh and against him there is sufficient evidence showing his involvement in the crime. It is a day light case and the witnesses saw the accused Rajendra Singh and identified him. He was involved in the commission of offence. He was named in FIR, therefore, the accused Rajendra Singh should be summoned under Section 319, Criminal Procedure Code. 4. Earlier, an FIR was lodged to the effect that because of enmity, accused persons Rajendra @ Pappu, Munnu and Bania were having enmity with the father of the informant and they were trying to pressurize his father for settlement but his father refused. On 05.09.2015 at about 05:00 PM in the evening, accused Bania with a darati (a cutting weapon) came with Rajendra @ Pappu, Munnu and Satvir and they surrounded his father. Bania hit his father on his head by darati more than once due to which he sustained serious injuries. They committed maar-peet with the informant. When the village people came, they ran away threatening them with dire consequences. 5. A copy of the charge sheet has been annexed as Annexure No. 3 to the present criminal revision, which shows that after investigation, charge sheet was submitted against Munnu and Bania. 6. They committed maar-peet with the informant. When the village people came, they ran away threatening them with dire consequences. 5. A copy of the charge sheet has been annexed as Annexure No. 3 to the present criminal revision, which shows that after investigation, charge sheet was submitted against Munnu and Bania. 6. The learned trial court after hearing the prosecution, passed the order allowing the application filed under Section 319, Criminal Procedure Code and summon Rajendra @ Pappu and Satvir in the said case. 7. Aggrieved by the summoning order, Satvir has filed this criminal revision stating that the trial court has acted illegally and has committed error in summoning the revisionist. The revisionist is a government servant and at that time, he was posted as police constable in Police Station Azeem Nagar, District Rampur. The prosecution has filed application only to summon Rajendra @ Pappu, who was not charge sheeted by the Investigating Officer and there was no prayer for the summoning of the revisionist in the application given by the prosecution. The court misread the evidence of the witnesses, where as PW-2 who is injured witness has denied the involvement of the revisionist in the said incident. The involvement of the revisionist was not proved by the evidence given by the prosecution and the impugned order suffers from illegality which is liable to be set aside. 8. Learned counsel for the opposite party no. 2 has submitted that a revision was also filed by Rajendra @ Pappu, who was summoned by the impugned order and his revision was dismissed by this Court and, therefore, there is no occasion for this Court to go into the correctness of the impugned order. 9. The submission of the learned counsel for the revisionist is that no evidence was found by the Investigating Officer against the revisionist, and therefore, he was exonerated. The statement of prosecution witnesses also do not disclose any evidence on the basis of which it can be said that there was any evidence against the revisionist on the basis of which it can be said that he was involved in the commission of said crime. Moreover, no application was given to summon the revisionist. 10. The statement of prosecution witnesses also do not disclose any evidence on the basis of which it can be said that there was any evidence against the revisionist on the basis of which it can be said that he was involved in the commission of said crime. Moreover, no application was given to summon the revisionist. 10. Learned counsel for the revisionist has also submitted that the case of Rajendra @ Pappu stands on different footing as he had earlier filed a separate revision which was dismissed by this Court and as such on that basis, this revision cannot be considered. Learned counsel for the revisionist has placed reliance upon the judgments of Supreme Court in Jogendra Yadav & Ors. vs. State of Bihar, 2015 AIR(SC) 2951, Hardeep Singh vs. State of Punjab, 2014 (3) SCC 92 , Babubhai Bhimabhai Bokhiria vs. State of Gujarat, 2014 (5) SCC 568 and two other judgments of High Court in Amirul Islam Khan @ Nasim Khan vs. State of West Bengal, 2016 (2) Crimes(HC) 408 (Cal.) and Gurjant Singh vs. State of Haryana, 2016 (3) RCR(Cri) 1007 (P & H) and has argued that the impugned order is not sustainable. 11. Section 319 Cr.P.C. reads as under :- "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. (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. (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." 12. In Hardeep Singh (supra), the Constitution Bench has settled the law in respect of Section 319, Criminal Procedure Code. that the standard of proof employed for summoning a person as an accused under Section 319 is higher than the standard of proof employed for framing a charge against an accused. The Supreme Court observed for the purpose of Section 319 as under: "........what is, therefore, necessary for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to the conviction of a person sought to be added as the accused in the case." 13. Regarding the degree of satisfaction necessary for framing a charge, the Court observed: "However, there is a series of cases wherein this court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 of the Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further". 14. The Court concluded as below: "106. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further". 14. The Court concluded as below: "106. 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......" 15. In Jogendra Yadav (supra), the Supreme Court has referred the aforesaid view settled in Hardeep Singh (supra) with confirmation. 16. In Babubhai Bhimabhai Bokhiria (supra), the aforesaid view of Hardeep Singh (supra) has been further quoted with approval and the Supreme Court has held as under :- "Section 319 of the Code confers power on 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 test 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." 17. The two judgments of the two High Courts as mentioned above namely Amirul Islam Khan @ Nasim Khan (supra) and Gurjant Singh (supra) have also taken the same view. 18. In Brijendra Singh vs. State of Rajasthan, 2017 AIR(SC) 2839, the supreme court discussed the meaning of 'evidence' in section 319, Criminal Procedure Code and expressed the view that the examination-in-chief of prosecution witnesses is to be considered and there is no need to wait for cross-examination. 18. In Brijendra Singh vs. State of Rajasthan, 2017 AIR(SC) 2839, the supreme court discussed the meaning of 'evidence' in section 319, Criminal Procedure Code and expressed the view that the examination-in-chief of prosecution witnesses is to be considered and there is no need to wait for cross-examination. The prima facie opinion and satisfaction with regards to complicity of the person in commission of the offence is not mere probability of involvement. It requires stronger and cogent evidence. In this case, the IO investigated the offence and did not submit charge-sheet for the reason that at the time of incident the appellant was at a distance of 175 km from the place of occurrence. The supreme court set aside the summoning order and observed that no doubt, the trial court can summon the person on the basis of the statement of witnesses given during trial. However, where plethora of evidence was collected by the IO including documentary evidence indicating his plea of alibi to be correct, the trial court is duty bound to consider the evidence so collected by IO while forming opinion and recording satisfaction regarding prima facie case for the purpose of section 319 of the Criminal Procedure Code. 19. The view expressed in Hardeep Singh (supra) has been further reiterated in Labhuji Amaratji Thakor vs. State of Gujarat, 2019 AIR(SC) 734. In Rakesh vs. State of Haryana, 2019 AIR(SC) 2168, the supreme court again considered the ambit of section 319 and laid down as follows: "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 charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction." 20. Now coming to the facts of this case, it appears that the prosecution by its application under Section 319, Criminal Procedure Code has made request for summoning accused Rajendra @ Pappu alleging that FIR was lodged against him and two witnesses examined by the prosecution, had also given evidence against him. Now coming to the facts of this case, it appears that the prosecution by its application under Section 319, Criminal Procedure Code has made request for summoning accused Rajendra @ Pappu alleging that FIR was lodged against him and two witnesses examined by the prosecution, had also given evidence against him. From perusal of the said application, it appears that there was no prayer for the summoning of the revisionist Satvir. Moreover, PW-1 Amit (informant) was present at the time of incident he has stated in his evidence that at the time of incident along with other accused persons, Satvir also came and all the fours accused persons surrounded his father and it was the accused Bania, who with intention to cause death of his father, hit him on his head by Darati (a cutting weapon) due to which he sustained injuries. He has further stated that thereafter other three accused persons namely Munnu, Bania and Rajendra @ Pappu committed maar-peet with him. It is pertinent to mention here that at the first instance, it was stated that it was the accused Bania who assaulted his father by Darati and subsequently he has stated that accused Munnu, Bania and Rajendra @ Pappu had committed maar-peet with him. Thus, his statement shows that in committing maar-peet, there was no role of the revisionist Satvir nor he assaulted his father. 21. PW-2 Jaipal Singh who is the injured witness has stated in his examination-in-chief that all the four accused persons including Satvir surrounded him and accused Bania hit him on his head. When his son Amit came, the accused persons committed maar-peet with him also. Thereafter, he has stated that Satvir did not commit any maar-peet and he was trying to save and stop marpeet. This is his statement in the examination-in-chief. Subsequently when he was cross-examined, he has stated that the revisionist did not commit maar-peet with him. 22. Power under section 319 of the Criminal Procedure Code, being discretionary and extra-ordinary power, should be exercised sparingly to ensure that the real culprit may not go unpunished and the ends of criminal justice may not be defeated. This power has to be exercised only during trial when some evidence has been recorded. 22. Power under section 319 of the Criminal Procedure Code, being discretionary and extra-ordinary power, should be exercised sparingly to ensure that the real culprit may not go unpunished and the ends of criminal justice may not be defeated. This power has to be exercised only during trial when some evidence has been recorded. If no charge sheet has been filed but prima facie offence is disclosed from the evidence adduced during trial which creates confidence in the trial court that if such evidence is not rebutted, it will lead to conviction of such person, the trial court can summon such person under section 319 to face trial. But the satisfaction of the court as to prima facie case is much higher in comparison to a prima facie case for taking cognizance or summoning under section 203 of the Code or for framing charge. Merely on the basis of suspicion or prima facie evidence about the involvement of a person in the offence is not enough to exercise this power, unless there is prospect of conviction. There cannot be an uniform formula for such determination and satisfaction and each case is required to be considered on the basis of its own facts and circumstances. However, the trial court should not exercise this power in a casual manner but with great care and caution and after taking into consideration all relevant evidence on record. 23. Looking to the statement of both the witnesses and considering that there was no prayer in the application of the prosecution to summon revisionist and also on the basis of above discussion, I am of the view that the learned trial court committed jurisdictional error in passing the impugned order. The impugned order suffers from material irregularity, illegality and impropriety and it cannot survive. I find that the impugned order is not sustainable and is liable to be set aside to the extent of summoning the revisionist Satvir. 24. Accordingly, the revision is allowed and the impugned order dated 20.09.2016 is set aside to the extent of summoning the revisionist Satvir. 25. Office is directed to send a certified copy of this order to the concerned court for information and compliance.