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2020 DIGILAW 1319 (ALL)

Ramesh v. State of U. P.

2020-11-11

VIPIN CHANDRA DIXIT

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JUDGMENT : VIPIN CHANDRA DIXIT, J. 1. This criminal revision has been filed against the order dated 4.2.2017 passed by Special Judge, SC/ST (P.A.) Act, Hamirpur in Special Case No. 24 of 2013 by which application filed by revisionist under Section 319 of Cr.P.C. was rejected. 2. The brief facts of the case are that the revisionist had lodged an F.I.R. on 7.10.2012 against 10 accused namely (1) Dev Singh, (2) Satish, (3) Brajesh, (4) Arun, (5) Santosh, (6) Omkar, (7) Rajesh, (8) Sunil, (9) Santosh and (10) Awadhesh, which was registered as Case Crime No. 462 of 2012, under Sections 147, 148, 149, 342, 302, 504, 506 I.P.C. and Sections 3(1)(x) and 3(2)(v) SC/ST Act in P.S. Kurara, District Hamirpur. It was alleged in the F.I.R. that the accused persons had committed murder of informant's brother Jaitpal. The Police after investigation had submitted charge-sheet against (1) Dev Singh, (2) Satish, (3) Santosh, (4) Sunil, (5) Awadhesh and (6) Santosh but no charge-sheet was submitted against other four accused namely (1) Brajesh, (2) Arun, (3) Rajesh and (4) Omkar. The trial was proceeded and the prosecution had examined two witnesses of fact namely Ramesh (informant) as PW-1 and Jagannath as PW-2. After the evidence of PW-1 and PW-2 the informant/revisionist had moved an application on 16.5.2016 (although provision was not mentioned) under Section 319 of Cr.P.C. to summon and try the opposite party nos. 2, 3, 4 and 5 (whose name were not in charge-sheet) along with other co-accused. The learned trial court after considering the evidence of PW-1 and PW-2 and other materials brought on record, had rejected the application which is Paper No. 43-Ka under Section 319 Cr.P.C. vide order dated 4.2.2017, which is impugned in the present criminal revision. 3. Heard Sri. Anil Kumar, learned counsel for the revisionist, Sri. Raj Kamal Srivastava, learned A.G.A. for the State and Sri. Vijay Bahadur Shiv Hare, learned counsel for opposite party nos. 2 to 5. 4. The learned counsel for revisionist/informant has submitted that the opposite party nos. 2 to 5 were also accompanying with other co-accused and committed the murder of his brother Jaitpal but the Investigating Officer did not submit a charge-sheet against them whereas from the evidence of PW-1 and PW-2 the offence against opposite party nos. 2 to 5 are fully proved and they are also liable to be tried along with other co-accused. 2 to 5 were also accompanying with other co-accused and committed the murder of his brother Jaitpal but the Investigating Officer did not submit a charge-sheet against them whereas from the evidence of PW-1 and PW-2 the offence against opposite party nos. 2 to 5 are fully proved and they are also liable to be tried along with other co-accused. The trial court has committed illegality in rejecting the application filed under Section 319 Cr.P.C. by the impugned order. It is further submitted by learned counsel for the revisionist that the entire facts and circumstances of the case had not been properly considered by the trial court and the application was rejected in a very casual manner. 5. On the other hand, learned A.G.A. for the State as well as learned counsel for opposite party nos. 2 to 5 have submitted that the trial court after considering the entire evidence of PW-1 and PW-2 has rightly passed the order dated 4.2.2017. From the evidence of PW-1 and PW-2 the involvement of opposite party nos. 2 to 5 in the incident was not established. It is further submitted that opposite party nos. 2 to 5, who are sons of accused Dev Singh were named in the F.I.R. and during investigation the Investigating Officer has not found any reliable evidence against them therefore charge-sheet has not been submitted against them. It is further submitted by learned counsel for opposite party nos. 2 to 5 that PW-1 and PW-2 are real brothers and are interested witnesses and their evidence are not reliable. It is further submitted that the Police neither had filed charge-sheet against opposite party nos. 2 to 5 nor has submitted the final report against them as they are absconders. Lastly, it is submitted that the trial court after prima-facie satisfaction that the involvement of opposite party nos. 2 to 5 are not established from the evidence of PW-1 and PW-2, had rightly rejected the application under Section 319 Cr.P.C. filed by the revisionist. 6. Learned counsel for opposite party nos. 2 to 5 has further submitted that the powers given under Section 319 of Cr.P.C. are discretionary powers of the court and are to be exercised sparingly and the trial court after having thoroughly examined the record found no substance in the application filed under Section 319 Cr.P.C. and has rightly rejected the same. 7. 2 to 5 has further submitted that the powers given under Section 319 of Cr.P.C. are discretionary powers of the court and are to be exercised sparingly and the trial court after having thoroughly examined the record found no substance in the application filed under Section 319 Cr.P.C. and has rightly rejected the same. 7. Before considering the merits of the contention of rival parties it is necessary to refer to Section 319 Cr.P.C. which 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. By bare reading of Section 319 Cr.P.C. it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with other accused. 9. 9. The provisions of Section 319 Cr.P.C. have been enacted in the Code of Criminal Procedure with a view to achieve objective that the real culprit should not get away unpunished and the court is empowered to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence then he may be summoned to face the trial along with other co-accused. 10. The Full Bench of Hon'ble Apex Court in the case of Hardeep Singh vs. State of Punjab and Others, 2014 (1) JIC 539 (SC) has laid down the principles in respect of summoning the persons who were not charge-sheeted during investigation but from the evidence they were found guilty for committing such an offence. The relevant paragraphs 96, 97, 107, 108 are quoted hereunder:- “96. 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 Cr.P.C. though the test of prima-facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judges Bench of this Court in Vikas vs. State of Rajasthan, 2013 (11) SCALE 23 , 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. 97. In Rajendra Singh (Supra), the Court observed: “Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is “may” and not “shall.” The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression “appears” indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not.” 107. The expression “appears” indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not.” 107. 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 cavalier manner. 108. 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 un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused.” 11. The power of trial court under Section 319 Cr.P.C. in respect to arraign any person as an accused during the course of enquiry or trial is also dealt with by Hon'ble the Apex Court in the case of Babubhai Bhimabhai Bokhiria and Another vs. State of Gujarat and Others, (2014) 5 SCC 568 , the relevant paragraph 8 is quoted hereunder:- “8. 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. The same view has been taken by Hon'ble Apex Court in latest decision reported in Shiv Prakash Mishra vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 . The relevant paragraph 10 is quoted herein-below: “10. The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash vs. State of Rajasthan: (SCC p. 55, para-9) “9...........the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are “it appears from the evidence”......“any person”......“has committed any offence.” It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court.” 13. It has been repeatedly held by the Hon'ble Apex Court in series of cases that the power to summon an accused is an extra-ordinary power conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against other persons against whom action has not been taken. The powers conferred to the trial court under Section 319 Cr.P.C. are discretionary and it should not be applied mechanically. 14. The powers conferred to the trial court under Section 319 Cr.P.C. are discretionary and it should not be applied mechanically. 14. The trial court had recorded the findings while passing the impugned order that the Investigating Officer while submitting the charge-sheet disclosed 20 witnesses in which several witnesses are the witnesses of fact whereas only statement of Ramesh and his brother Jagannath were recorded as PW-1 and PW-2 and other witnesses of facts still have to be examined. From the evidence of two real brothers of the deceased the involvement of opposite party nos. 2 to 5 in the commission of crime are not prima-facie established. The powers of trial court under Section 319 Cr.P.C. are discretionary in nature and after considering the evidence and material which are brought on record, the trial court prima-facie was satisfied that the involvement of opposite party nos. 2 to 5 are not established and has rejected the application filed by the informant/revisionist. 15. The Hon'ble Apex Court in the case of Ashish Chadha vs. Asha Kumari and Another, (2012) 1 SCC 680 has laid down the law that it is the trial court which has to decide whether evidence on record is sufficient to make out a prima-facie case against the accused. The relevant paragraph 21 is referred as under:- “21. In this connection, we may usefully refer to the observations of this court in Munna Devi vs. State of Rajasthan and Another (SCC p.632, para-3). “3. We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.” 16. The Hon'ble Apex Court laid down the law that the High Court while exercising the revisional jurisdiction has no authority to appreciate the evidence in the manner as the trial court and the appellate court are required to do. The revisional powers under the Code of Criminal Procedure cannot be exercised in a routine and casual manner and while exercising the revisional power the High Court has no authority to appreciate the evidence and it could be exercised only when it is shown that there is legal bar against the continuance of the criminal proceedings. In the present case the trial court had considered the rival submissions of parties and has prima-facie satisfied that there is no cogent evidence available to summon the opposite party nos. 2 to 5 along with other co-accused persons. The revisionist had failed to point out any illegality or irregularity in the order passed by trial court rejecting the application under Section 319 Cr.P.C. 17. The power conferred to the trial court to summon an accused under Section 319 Cr.P.C. is an extra-ordinary power and it should be used very sparingly and not be applied mechanically. In the present case the trial court has not committed any illegality or infirmity in rejecting the application after prima-facie satisfaction that the evidence adduced by the prosecution did not establish the involvement of opposite party nos. 2 to 5 in the crime. The evidence brought on record during trial does not prima-facie show the complicity of opposite parties no. 2 to 5 in the occurrence and the trial court has rightly refused to summon them as accused. 18. After considering the rival submissions of the parties as well as material brought on record, the impugned order does not suffer from any illegality or irregularity and the learned trial court has not committed any error in rejecting the application filed by revisionist under Section 319 Cr.P.C. The revisionist has failed to point out any infirmity or illegality in the order. The present criminal revision lacks merits and deserves to be dismissed. 19. Accordingly, the criminal revision is dismissed.