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2019 DIGILAW 2555 (ALL)

Anil v. State of U. P.

2019-11-14

AJIT SINGH

body2019
ORDER : Ajit Singh, J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. The applicant by means of this application under Section 482 Cr. P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 25.9.2019 passed by the Addl. Sessions Judge Court no. 6, Aligarh in S.T. No. 191 of 2018 (State vs. Bhupendra and others), arising out of Case Crime no. 618 of 2017, under Sections 302 and 120B I.P.C., P.S. Khair, district-Aligarh, pending in the Court of Addl. sessions Judge Court no. 6, Aligarh. 3. The report of the incident was lodged by the opposite party no. 2, who is father of the deceased Sumit, alleging therein that on 19.10.2017 at about 6:00 p.m. when he was sitting with his family in his house, Govinda son of Jaipal Singh came to his house and asked his son to go to the field of Sukhbir near the canal. Thereafter he went away along with Sumit. Anil son of Jagdish Singh, Bhupendra son of Omvir Singh and Rupendra son of Rishi Om and two other persons were present at the occurrence site. Some hot talks were exchanged between them as there was previous enmity between them regarding litigations. between them. It is also mentioned in the FIR that when Sumit did not return to his house, then opposite party no. 2 went towards the field of Sukhbir along with Shailesh son of Ravendra Singh and Hariom son of Yogendra and when they reached near the field of Sukhbir, they heard noise of 'Bachao-Bachao' after hearing the noise they reached at the place of occurrence where accused persons were beating Sumit. When the complainant tried to save his son then accused persons fired at the complainant. It was also alleged that Anil caught hold his son Sumit and Bhupendra fired at Sumit. It was also mentioned in the FIR that after being hit from the gunshot his son was saying that Bhupendra, Anil along with Rupendra, Govinda and others had fired at him with firearm and when they were carrying the injured to Aligarh for treatment, in the way injured Sumit succumbed to injuries. 4. The police investigated the matter and after completion of investigation, the Investigating Officer has submitted chargesheet against co-accused Bhupendra, Rupendra and Govinda and present applicant along with two other were exonerated. 4. The police investigated the matter and after completion of investigation, the Investigating Officer has submitted chargesheet against co-accused Bhupendra, Rupendra and Govinda and present applicant along with two other were exonerated. It was mentioned in the chargesheet that Anil alias Anil Kumar and two other persons were not found at the place of occurrence at the time of incident. 5. The prosecution has moved an application under Section 193 Cr. P.C. with a prayer that cognizance of the offence against the applicant also be taken, which was rejected by the trial court vide order dated 27.7.2019. The evidence of the prosecution was commenced in the session trial and the evidence of PW1 Autesh Kumar and PW2 Shailesh @ Shilendra were recorded. Both the prosecution witnesses in their statements recorded during trial have stated that the complicity of the present accused Anil @ Anil Kumar in the murder of his son is apparent then an application under Section 319 Cr. P.C. was moved, in which it has been stated that the present accused was named in the first information report and there was sufficient evidence against him but he was not chargesheeted during trial. 6. The trial court after hearing both the parties summoned the present accused along with other co-accused to face the trial vide impugned order dated 25.9.2019. Aggrieved from the impugned order, the present application under Section 482 Cr. P.C. has been filed. 7. The contention of the counsel for the applicant is that the incident is alleged to have taken place on 19.10.2017 at about 6 p.m. and the FIR of the incident was lodged on 20.10.2017 at about 11:45 a.m. He next contended that there is no mention the crime number and the name of the accused persons in the panchayatnama. The injured was admitted to the hospital by driver Abdul Jabbar and it was mentioned that he died due to gunshot injuries. It is a blind murder, which was not seen by anybody and the chargesheeted accused persons have been falsely implicated. The applicant has been summoned on the basis of false evidence. The trial court has not considered the evidence which was collected by the police during investigation and on the basis of which the present applicant was exonerated and by not considering the evidence recorded by the police as ought to have been considered by the trial court. The applicant has been summoned on the basis of false evidence. The trial court has not considered the evidence which was collected by the police during investigation and on the basis of which the present applicant was exonerated and by not considering the evidence recorded by the police as ought to have been considered by the trial court. The manifest illegality and abuse of process has been committed by the trial court in summoning the accused under Section 319 Cr. P.C. 8. The further contention is that the evidence including the statements given before the court and the evidence collected by the Investigating Officer during investigation and while summoning the accused under Section 319 Cr. P.C., the evidence which has been collected during investigation also be considered. 9. On the other hand learned A.G.A. has submitted that the accused was summoned on the basis of the evidence recorded by the trial court during trial and the other material which is available before the trial court. The Hon'ble Apex Court has observed that "The powers of the Court to proceed under Section 319 Cr. P.C. even against those persons who are not arraigned as accused, cannot be disputed. This provision is meant to achieve the objective that real culprit should not get away unpunished. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab & Ors., (2014) 3 SCC 92 , explained the aforesaid purpose behind this provision in the following manner: "8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. xx xx xx 12. Section 319 CrPC 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 CrPC. 13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC? xx xx xx 19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence." It also goes without saying that Section 319 Cr. P.C., which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of Section 207/208 Cr. P.C., the committal etc., which is only a pre-trial stage intended to put the process into motion." In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word 'evidence' used in Section 319(1) Cr. P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial. P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word 'evidence' has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that 'evidence' under Section 319 Cr. P.C. could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr. P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh's case and answered in the following manner: "95. 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 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. 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 CrPC, 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 [ (2014) 3 SCC 321 ], 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. xx xx xx 105. Power under Section 319 CrPC 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 cavalier manner. 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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC 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". In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused." In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: Power under Section 319 Cr. P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr. P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr. P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. In para 14 and 15 of Brijendra Singh and others v. State of Rajasthan reported in (2017) 7 SCC 706 , the Hon'ble Apex Court has held that when we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr. P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr. P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr. P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny." 10. In this case the Investigating Officer has found that the accused Anil @ Anil Kumar was not present at the place of occurrence at the time of incident and that evidence has been ignored by the trial court while summoning the present accused and the trial court went by the depositions of the complainant and some other persons and the evidence recorded during trial was nothing more than the statements which were already there under Section 161 Cr. P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. No satisfaction of this nature has been recorded by the trial court while disposing of the application moved under Section 319 Cr. P.C. 11. The application is allowed and the order of summoning of applicant under Section 319 Cr. P.C. is set aside and in the interest of justice it is directed that the trial court shall pass order on the application moved under Section 319 Cr. P.C. after considering the evidence recorded by the trial court and considering the evidence which was collected by the Investigating Officer during investigation afresh.