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2022 DIGILAW 1011 (ALL)

Jailendra Rai v. State of U. P.

2022-07-06

ASHUTOSH SRIVASTAVA

body2022
JUDGMENT : 1. Heard Sri Manish Tiwary, learned Senior Advocate assisted by Sri Syed Imran Ibrahim, learned counsel for the revisionists, the learned A.G.A. and perused the record. 2. The present criminal revision has been filed assailing the order dated 21.5.2022 passed by the learned Additional Sessions Judge, Court No.6, Varanasi in S.T. No. 1164 of 2021 (State vs. Srinivas and others) arising out of Case Crime No. 985 of 2018, under Sections 307, 504, 506 and 120-B I.P.C., P.S. Lanka, District Varanasi whereby the application under Section 319 Cr.P.C. moved by the O.P. No.2 has been allowed and the revisionists have been summoned to face trial of Case Crime No. 985 of 2018, under Sections 307, 504, 506 and 120-B I.P.C., P.S. Lanka, District Varanasi. 3. It has been vehemently contended by Sri Manish Tiwary, learned Senior Counsel that the order impugned is patently illegal and has been passed against the settled principles of law and as such is not sustainable. The learned Court below has erred in law in omitting to consider the settled position of law to the effect that to summon an accused under Section 319 Cr.P.C. the evidence which has already been tested once during the course of investigation should not be the same and there needs to be something more to enable the Court to exercise the power under Section 319 Cr.P.C. The revisionists are lawyers by profession and practicing in the District Court Varanasi and have been implicated only in their professional capacity. A dispute exists between the O.P. No.2/first informant and one Kripa Shankar Rai and the revisionists have been impleaded as accused only pre-emptively. It is also contended that the exercise of power under Section 319 Cr.P.C. by the Court below is contrary to the law laid down by the Apex Court in the case of S. Mohammad Ispahani vs. Yogendra Chandak and others reported in 2017 (16) SCC 226 . Reliance is further placed on the decisions of the Apex Court reported in 2019 (7) SCC 806 ; 2019 (4) SCC 342 and 2017 (7) SCC 706 . It is accordingly prayed that the revision be allowed and the order dated 21.5.2022 be set aside. 4. Learned counsel for the O.P. No.2 has opposed the revision by submitting that the order dated 21.5.2022 is just and proper and warrants no interference by this Court. It is accordingly prayed that the revision be allowed and the order dated 21.5.2022 be set aside. 4. Learned counsel for the O.P. No.2 has opposed the revision by submitting that the order dated 21.5.2022 is just and proper and warrants no interference by this Court. Reliance is placed on the decision of the Apex Court in the case of Nahar Singh vs. The State of U.P. and another reported in 2022 Live Law (SC) 291. 5. In order to appreciate the rival contentions it would be apt to briefly state the facts of the case leading up to filing of the application under Section 319 Cr.P.C. by the opposite party and the exercise of power under Section 319 Cr.P.C. by the learned Court below. The genesis of the case between the parties arises out of an F.I.R. dated 20.9.2018 lodged by the O.P. No.2 at 4:42 hours in respect of an incident stated to have taken place on 19.9.2018 at 23:00 hours wherein it has been alleged that while she was coming back to her house from work 8 persons apprehended her in her car being driven by her driver. The eight persons incessantly fired at her vehicle in which both she and her driver sustained injuries. The O.P. No.2 has stated to have identified four persons (including the revisionist herein) out of the eight persons. The Investigating Officer on 20.9.2018 (i.e. the date of lodging the F.I.R.) recorded the statement of the first informant/Opposite Party No.2 in which the names of the revisionists were mentioned. On 24.9.2018 the statements of son, husband and elder brother-in-law were got recorded and none of the witnesses mentioned the names of the revisionists. The factum of the existence of long standing enmity with one Srinivas Singh (co-accused) was stated by the witnesses. On 21.10.2018 the statement of the injured driver of the O.P. No.2 was also got recorded under Section 161 Cr.P.C. in which he also stated the names of the revisionists. On 21.12.2018 the Investigating Officer, on the basis of CCTV footage and mobile location etc., concluded that the complicity of the revisionists in the alleged incident was not true and removed their names after confronting the O.P. No.2 of the alibi of the revisionists. On 14.1.2019 the second statement of the O.P. No.2 was also got recorded wherein she reiterated her earlier statement. On 14.1.2019 the second statement of the O.P. No.2 was also got recorded wherein she reiterated her earlier statement. The Investigating Officer on 04.11.2019 submitted charge sheet against three persons, the names of the revisionists did not find place in the charge sheet dated 04.11.2019. On 5.5.2022 the examination in chief commenced and the O.P. No.2 in her depositions as PW-1, merely repeated her version as stated in the FIR, on 10.5.2022 the O.P. No.2 moved an application under Section 319 Cr.P.C. before the Court below with a prayer to summon the revisionists and co-accused Kripa Shankar Rai. The said application has been allowed by the impugned order dated 21.5.2022 and the revisionists have been summoned to face trial. 6. I have heard the learned counsels for the parties and have perused the record. 7. The principles for exercise of power under Section 319 Cr.P.C. by Criminal Courts are well settled. The Constitution Bench of the Apex Court in Hardeep Singh vs. State of Punjab and others reported in 2014 (3) SCC 92 has elaborately considered all contours of Section 319 Cr.P.C. The Apex court held that power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. The Court further held 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. In the judgement their Lordships held as under:- “105. Power under Section 319 Cr.P.C. is a discretionary and an extrardinary 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 6 Page 65exercised 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. 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 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.” 8. A two judge Bench of the Apex Court again reiterated the same ratio in Rajesh and others vs. State of Haryana [ 2019 (6) SCC 368 ]; Ramesh Chandra Srivastava vs. The State of U.P. and another [Cri. Appeal No. 990 of 2021, arising out of SLP (Crl.) No. 6381 of 2020 decided on 13.9.2021. 9. The question as to in what situations the power under the section can be exercised in respect of persons not named in the FIR or named in the FIR but not charge-sheeted or discharged (as in the case at hand) was also considered and it was held that a person whose name does not appear in the FIR or in the charge sheet or whose name appears in the FIR and not in the charge-sheet can still be summoned by the Court provided the conditions under the section stand fulfilled. The Apex Court in the case Hardeep Singh (Supra) observed as under:- “111. Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. The Apex Court in the case Hardeep Singh (Supra) observed as under:- “111. Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Cr.P.C. can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398Cr.P.C. has to be complied with before he can be summoned afresh.” The word ‘evidence’ as used under Section 319(1) of Cr.P.C. was also considered in Hardeep Singh (Supra) and the Court observed as under:- “84. The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The ‘evidence’ is thus, limited to the evidence recorded during trial.” The principles with regard to exercise of power by the Court to summon an accused under Section 319 Cr.P.C. were reiterated in S. Mohammed Ispahani (supra) and it was held that the power under Section 319 Cr.P.C. to summon even those persons who are not named in the charge-sheet to appear and face trial is unquestionable. The Court observed as under:- “28. Insofar as power of the Court under Section 319 of the Cr.P.C. to summon even those persons who are not named in the charge sheet to appear and face trial is concerned, the same is unquestionable. Section 319 of the Cr.P.C. is meant to rope in even those persons who were not implicated when the charge sheet was filed but during the trial the Court finds that sufficient evidence has come on record to summon them and face the trial. In Hardeep Singh’s case, the Constitution Bench of this Court has settled the law in this behalf with authoritative pronouncement, thereby removing the cobweb which had been created while interpreting this provision earlier. As far as object behind Section 319 of the Cr.P.C. is concerned, the Court had highlighted the same as under: “19. The court is 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.” 10. The power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted was reiterated in Rajesh and others vs. State of Haryana reported in 2019 (6) SCC 368 and it was held that persons named in the FIR but not implicated in the charge- sheet can be summoned to face trial, provided during trial some evidence surfaces against the proposed accused. 11. In Saeeda Khatoon Arshi vs. State of U.P. and another reported in 2020 (2) SCC 323 it was held that it is the duty of the Court to give full effect to the words used by the legislature so as to encompass any situation which the Court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution. 12. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. The entire effort is not to allow the real perpetrator of an offence to get away unpunished. The provision of Section 319 Cr.P.C. has been incorporated in the Code of Criminal Procedure in furtherance of the said objective. 13. The entire effort is not to allow the real perpetrator of an offence to get away unpunished. The provision of Section 319 Cr.P.C. has been incorporated in the Code of Criminal Procedure in furtherance of the said objective. 13. Section 319 Cr.P.C. 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 understanding the ambit and spirit underlying the enactment of Section 319 Cr.P.C. 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. Section 319 Cr.P.C. allows the Court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers has to be necessarily not be an accused already facing trial. He can either be a person named in the column 2 of the charge-sheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the Court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence. 14. 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 investigation 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 enquiry even though he may be connected with the commission of the offence. 15. 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 enquiry even though he may be connected with the commission of the offence. 15. Now applying the ratio of the various decisions discussed above to the case at hand, the Court finds that the learned Additional Sessions Judge, Court No.6, Varanasi while exercising the powers under Section 319 Cr.P.C. to summon the revisionists who though were named in the FIR but absolved by the Investigating Officer has taken note of the fact that the revisionists were named in the FIR dated 20.9.2018 and were also assigned a role in the incident. In the statement of the first informant/O.P. No.2 recorded under Section 161 Cr.P.C. on 20.9.2018 and 14.1.2019 the names of the revisionists has appeared. In the statement of driver of the first informant/O.P. No.2, who was also injured in the incident, the name of the revisionists has surfaced. The first informant/O.P. No.2 in her statement recorded before the Court in the capacity of PW-1 has named the revisionists who were stated to be present with fire arms on the date of the incident and incessantly fired upon the car of the first informant and injured both the first informant and her driver. The Court below has opined that the statement of the first informant/injured/O.P. No.2 naming the revisionists establishes the complicity of the revisionists and unrebutted evidence can lead to the conviction of the revisionists. Thus, the ingredients of exercise of power under Section 319 Cr.P.C. in the case at hand are made out. Accordingly, the Court below upon considering the settled legal position regarding the exercise of powers under Section 319 Cr.P.C. has formed the view on the basis of the statement of the PW-1/Informant/injured Opposite Party No.2 that the revisionists be tried together with the other accused and for the said purpose has summoned the revisionists. 16. The Apex Court in the case of Rampal Singh and others Vs. State of U.P. and another reported in 2009(4) SCC 423 while dealing with similar circumstances observed as under:- “17. 16. The Apex Court in the case of Rampal Singh and others Vs. State of U.P. and another reported in 2009(4) SCC 423 while dealing with similar circumstances observed as under:- “17. The ingredients of Section 319 are unambiguous and indicate that where in the course of 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 he has committed. 18. All that is required by the Court for invoking its powers under Section 319 Cr.P.C.is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter. 19. In the instant case, although, the appellants were named in the F.I.R., they were not named as accused in the charge-sheet during the trial. However, P.W.1 in his evidence, has named the appellants as persons who were involved in the incident causing the death of Brijesh Kumar Singh and injuries to Manvender Singh. Despite the above, the trial Court, on two separate occasions, rejected the prayer made by the Respondent No.2 for summoning the appellants herein under Section 319 Cr.P.C. The High Court, after considering the evidence of P.W.1, Kamlesh Singh, thought it necessary for the appellants to be summoned.” 17. In view of the above, I do not find any error in the order dated 21.5.2022 of the learned Additional Sessions Judge, Court No.6, Varanasi, allowing the application of the O.P. No.2 under Section 319 Cr.P.C.and summoning the revisionists to face the trial along with other accused. 18. The criminal revision has no merit and is, accordingly, dismissed leaving it open for the revisionists to avail remedy available to them under the law.