Research › Search › Judgment

Allahabad High Court · body

2021 DIGILAW 1469 (ALL)

Neeraj Singh v. State of U. P.

2021-12-02

RAJESH SINGH CHAUHAN

body2021
JUDGMENT : RAJESH SINGH CHAUHAN, J. 1. Heard Sri. Vinod Kumar Pandey, learned counsel for the petitioners, Sri. Ran Vijay Singh, learned AGA for the State and Sri. Santosh Kumar Yadav “Warsi” learned counsel for opposite party no. 2. 2. Sri. Warsi has filed counter affidavit, the same is taken on record. 3. By means of this petition, the petitioners have assailed the order dated 22.10.2021 passed by the Additional Sessions Judge, Court No. 4, Sultanpur on the application under Section 319 Cr.P.C. in Sessions Trial No. 116 of 2015, State vs. Sachin and Others, arising out of Case Crime No. 307 of 2014, under Sections 302, 323, 504 and 506 IPC, Police Station Motigarpur, District Sultanpur by means of which the petitioners have been summoned in the aforesaid case. 4. Learned counsel for the petitioners has contended that the present petitioners were not charge sheeted but the learned trial court concerned while appreciating the statements of PW-1, Sudhakar Tiwari and PW-2 Durgesh Tiwari, the injured, who have indicated the involvement of the present petitioners in the incident in question, summoned the petitioners under Section 319 Cr.P.C. Learned counsel for the petitioners has drawn attention of this Court towards Annexure No. 7 and 8 to the petition, which are medical prescription/report of Atul Medical Care Centre situated at Saidkhanpur Road, Kotwa Sarak, Barabanki wherein it has been indicated that both the petitioners were admitted in the Hospital w.e.f. 21.10.2014; 09.40 P.M. to 25.10.2014; 01.40 P.M. Therefore, he has submitted that when the present petitioners were admitted in one private hospital, how can they be remain present at the place of incident on 23.10.2014. Not only the above, Doctor concerned i.e. Dr. Y.R. Singh has recorded his statement (Annexure No. 10) and verified and reiterated the same thing, which has been indicated in the medical certificate. 5. Therefore, on the basis of aforesaid facts and circumstances, learned counsel for the petitioners has submitted that this is a case where the present petitioners have been wrongly summoned under Section 319 Cr.P.C. He has also submitted that even in the statement recorded under Section 161 Cr.P.C. of both the aforesaid prosecution witnesses, they have not suggested that the present petitioners were present. However, while recording their statements before the court, they have named the present petitioners. However, while recording their statements before the court, they have named the present petitioners. So, the learned court below has committed manifest error of law and fact both in summoning the petitioners under Section 319 Cr.P.C. inasmuch as before issuing summon under the aforesaid section, plea of alibi of the present petitioners should have been considered. So as to strengthen the aforesaid argument, learned counsel for the petitioners has drawn attention of this Court towards a decision of the Apex Court in Brijendra Singh and Others vs. State of Rajasthan, 2017 (100) ACC 601, referring Paras 14 and 15 thereof. For the convenience, Paras 14 and 15 are being reproduced herein-below: “14. 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 km. 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 the appellants plea of alibi was correct. 15. This record was before the Trial Court. Notwithstanding the same, the trial court went by the depositions of the 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 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. Thus, 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 a 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 the agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny.” 6. He has also submitted that following the aforesaid proposition of law, this Court has granted interim order in some of identical cases. 7. Learned AGA has opposed the prayer of this petition by submitting that the summon issued under Section 319 Cr.P.C. may not be treated at par with the summons issued while taking cognizance on the charge sheet. While issuing summons under Section 319 Cr.P.C. learned court below has got strong prima facie satisfaction to summon the person concerned. Even at that stage, the discharge cannot be moved. However, after appearing before the learned court below pursuant to the aforesaid summon and at the time of framing of charges, the person summoned may take all pleas regarding his non-involvement in the issue in question. 8. Sri. Warsi has also adopted the aforesaid submission of Sri. Ran Vijay Singh, learned AGA. 9. However, after appearing before the learned court below pursuant to the aforesaid summon and at the time of framing of charges, the person summoned may take all pleas regarding his non-involvement in the issue in question. 8. Sri. Warsi has also adopted the aforesaid submission of Sri. Ran Vijay Singh, learned AGA. 9. Having heard learned counsel for the parties and having perused the material available on record, I am also of the considered opinion that prima facie satisfaction of the court concerned while issuing summons under Section 319 Cr.P.C. is so strong. Under Section 319 Cr.P.C. this is the power of the court to proceed against other persons appearing to be guilty of the offences and satisfaction to this effect is derived from the material available on record including the incriminating material and statement of the witnesses. 10. Even there is no statutory prescription to provide any prior opportunity of hearing to the persons under Section 319 Cr.P.C. before passing summoning order under Section 319 Cr.P.C. 11. In the case so cited by the learned counsel for the petitioners i.e. Brijendra Singh (supra), the Hon'ble Apex Court has noticed the statements so recorded under Section 161 Cr.P.C. of various persons and on the basis of such statements recorded under Section 161 Cr.P.C. the Apex Court was of the view that the plea of alibi should have been considered before issuing summons under Section 319 Cr.P.C. But, in the present case, the learned court below has issued summon under Section 319 Cr.P.C. on the basis of statements of prosecution witnesses and one of such witnesses is injured witness, therefore, the facts and circumstances considered by the Apex Court in re; Brijendra Singh (supra) would not be applicable in the present case. The law is trite on the point that the facts and circumstances of individual case may not be cited in another case, if the facts and circumstances of both the cases are not identical and similar. The law is trite on the point that the facts and circumstances of individual case may not be cited in another case, if the facts and circumstances of both the cases are not identical and similar. The Apex Court vide judgment and order dated 24.8.2021, Manjeet Singh vs. State of Haryana and Others, Criminal Appeal No. 875 of 2021, in Para-14.1 has observed as under: “14.1 Now thereafter when in the examination-in-chief the appellant herein - victim - injured eye-witness has specifically named the private respondents herein with specific role attributed to them, the Learned trial Court as well as the High Court ought to have summoned the private respondents herein to face the trial. At this stage it is required to be noted that so far as the appellant herein is concerned he is an injured eyewitness. As observed by this Court in the cases of State of M.P. vs. Mansingh, (2003) 10 SCC 414 , Abdul Sayeed vs. State of M.P. (2010) 10 SCC 259 and State of Uttar Pradesh vs. Naresh, (2011) 4 SCC 324 , the evidence of an injured eye-witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. As observed hereinabove while exercising the powers under Section 319 Cr.P.C. the Court has not to wait till the cross-examination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial under Section 319 Cr.P.C.” 12. Having considered the aforesaid facts and circumstances and case laws so referred above, I do not find any infirmity or illegality in the order dated 22.10.2021 passed by the Additional Sessions Judge, Court No. 4, Sultanpur in Sessions Trial No. 116 of 2015. 13. Therefore, liberty is given to the present petitioners to appear before the court concerned pursuant to the summoning order dated 22.10.2021 within three weeks and file appropriate application of bail and if such application is filed, the same may be considered and disposed of with expedition, preferably on the same day. 14. It is needless to say that the present petitioners would submit their defence and bona-fide before the learned court below at the appropriate stage and such bona-fide shall be dealt with and considered by the learned court below properly. 15. The petition is consigned to record.