Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1686 (ALL)

Manoj Kumar v. State of U. P.

2019-07-15

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. Heard Shri Dinesh Kumar Sharma, learned counsel for the revisionist, Shri Prashant Kumar Singh, learned counsel for the opposite party and Shri Harish Chand, learned Brief Holder for the State. 2. This revision has been filed against the impugned order dated 27.10.2016 passed by the Additional District and Sessions Judge/FTC-II, Gautambudh Nagar in S.T. No. 681 of 2015 (State Vs. Jagat and others) arising out of Case Crime No. 248 of 2014, under section 147, 148, 149, 323, 325, 307, 506 IPC, Police Station Rabupura, District Gautambudh Nagar by which, the application of applicant-revisionist under section 319 Cr.P.C. for summoning three other persons namely Deepak, Aakash and Gajab has been rejected. 3. In the said case the application was given on the ground that in the statements of PW-1 (informant) Manoj Kumar, PW-2 (injured) Sanjay and PW-3 (eye witness) Sanjay, the name of three other persons Deepak, Aakash and Gajab have come, which shows the involvement of these three persons in the commission of alleged crime. After hearing both the sides learned court below rejected the application. 4. Aggrieved by that order this revision has been filed and the impugned order has been challenged on the ground that the same is illegal as the statement of the witnesses were not considered and order was passed on the basis of FIR and the statement under section 161 Cr.P.C. without considering the statements of the witnesses who were examined before the learned trial court during trial. Therefore, impugned order is liable to be set aside and three other persons be summoned under section 319 Cr.P.C. for trial. 5. It has been submitted from the side of OP that it is admitted fact that in the FIR, name of these three persons have not been mentioned, whereas, FIR has been lodged by the real brother of the injured person and it has come in the testimony of the injured witness that he had disclosed the name of these three persons to his brother and this fact is also accepted by the informant in his statement. The learned trial court has taken note of the fact that these three persons were not named in the FIR nor there was any statement showing the involvement of these three persons, which was given before the Investigating Officer under section 161 Cr.P.C. Learned counsel for the respondent No. 2 has referred the judgment in Hardeep Singh Vs. State of Punjab & others, 2014 3 SCC 92 and Labhuji Amratji Thakor & others Vs. The State of Gujarat & another, 2019 AIR(SC) 734 in support of his argument and has submitted that in the FIR the respondents were not named nor the IO was told about their involvement and the impugned order is totally justified. 6. On the contrary, the learned counsel for the revisionist has pointed out that in the on oath statement given by three witnesses, the name of these three persons have occurred and therefore, the court below has committed error in rejecting the application. 7. 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. (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." 8. In Hardeep Singh (supra), the Constitution Bench has settled the law in respect of Section 319, Criminal Procedure Code. 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." 9. 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". 10. 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......" 11. 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......" 11. In Babubhai Bhimabhai Bokhiria vs. State of Gujarat, 2014 5 SCC 568 , 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." 12. 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. 13. 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. 13. The view expressed in Hardeep Singh (supra) has been further reiterated in Labhuji Amaratji Thakor vs State of Gujarat, 2019 AIR(SC) 734 and has laid down that 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 Supreme Court set aside the order of the High Court and up held the order of Court below rejecting the application under section 319. 14. In Rakesh vs State of Haryana, 2019 AIR(SC) 2168, It appears that the facts of the case was quite similar in the case before the Supreme Court as in that case also the name of the persons was not mentioned in the FIR and when the statement under section 161 Cr.P.C. was recorded by the Investigating Officer, the name of these persons did not find mention. 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." 15. In the case before this court, the application under section 319 Cr.P.C. was given before the learned trial court on the basis of evidence given by three witnesses produced by the prosecution. PW-2 Sanjay Singh is the injured witness and examination-in-chief. In the case before this court, the application under section 319 Cr.P.C. was given before the learned trial court on the basis of evidence given by three witnesses produced by the prosecution. PW-2 Sanjay Singh is the injured witness and examination-in-chief. He has mentioned all these three persons by name and has stated that with him Sanjay son of Rishipal was also there at the time of incident who was separated by two accused persons and thereafter they started beating him by lathi danda and sariya. When people were gathered on the Highway then accused Jagat fired on him and he sustained injury on his left hand below his solder and above his elbow. Thereafter all the accused persons escaped away. He has further stated that he told his brother in the hospital the names of all the accused persons and his brother lodged FIR on his saying against three persons by name. PW-3 is the companion of injured whose name is also Sanjay and he has also stated that Jagat hit him by a danda and separated him and Sanjay was beaten sufficiently by them and thereafter accused Jagat fired on him and pellet hit and passed away. 16. Pw-1 Manoj Kumar (informant) has stated that he was not present on the spot at the time of incident and he simply lodged FIR on the basis of what was said to him by his brother who sustained injury in the incident but he has stated that his brother had told about the name of Deepak, Aakash and Gajab, whom he identified at the time of incident. It looks self contradictory as if it was so and he was told about the involvement of the three persons, nothing prevented him from mentioning them in the report and while giving statement before the IO. The statement of PW-2 and PW-3 shows that PW-2 was the target of the accused persons as his companion Sanjay (PW-3) was given a very little beating and was separated. From the perusal of medical report, it is clear that 7 injuries have been found on the body of the injured and that also shows that there was no need of other three persons and the accused persons who have been charge sheeted were sufficient in numbers to cause those injuries. 17. From the perusal of medical report, it is clear that 7 injuries have been found on the body of the injured and that also shows that there was no need of other three persons and the accused persons who have been charge sheeted were sufficient in numbers to cause those injuries. 17. From the statement of the witnesses it is clear that the FIR did not mention the name of these three persons nor the statement under section 161 Cr.P.C. makes any mention. There is no specific role assigned to these three persons which was in addition to what was assigned to the accused persons who were already named. The injured has sustained only seven injuries These three persons were known to the injured and he identified them by name and disclosed their names to the informant (his brother) who lodged FIR on the basis of what the injured had said to him. But their names did not find mention in the FIR. 18. The investigation must have continued for a longer period and during investigation the injured himself or the other family members who are witnesses should have disclosed the name of these three persons. Only when three witnesses came to witness box, this story was developed. The learned trial court while rejecting the application came to a correct conclusion that Sanjay son of Rishi Pal who was alleged to have been caught hold by the two accused persons has also been examined as PW-3, whose evidence was recorded by the Investigating Officer also and in his statement given to Investigating Officer, the name of these three persons did not find mention. It is pertinent to mention that the FIR was lodged by the brother of the victim and the same was lodged on the basis of information given to him by the victim, therefore, omitting the name of these three persons also shows that inclusion of these three persons in the statements of witnesses is a subsequent development and after-thought. 19. 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. 19. 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 inclusive of the FIR and the statement of witnesses given to IO. 20. On the basis of above discussion, I find that there is no error of jurisdiction or material irregularity or illegality in the impugned order. The revision has got no force and therefore, it is dismissed.