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2022 DIGILAW 1190 (ALL)

Shiv Sahai Shukla v. State of U. P.

2022-07-29

DINESH KUMAR SINGH

body2022
JUDGMENT : (Dinesh Kumar Singh, J.) Application No. 09 of 2022 1. This application seeks amendment in prayer clause of the application. 2. Heard. 3. Allowed. Let necessary amendment be carried out. On Memo 1. Heard Mr. Ayodhya Prasad Mishra, learned counsel for the applicants as well as Mr. Anurag Varma, learned Additional Government Advocate, representing respondent no. 1-State, and gone through the record. 2. By way of this application under Section 482 CrPC the applicant have prayed (as per amended prayer) for quashing of the order dated 21.04.2009 passed by the learned Special Judge, SC/ST Act, Gonda in Sessions Trial No.142 of 2004 arising out of Crime No.015 of 2004 , under Sections 498-A and 304-B IPC read with Section 3/4 D.P. Act. It is stated at the Bar that applicant no. 1 has expired. 3. An FIR vide Crime No.015 of 2004, under Sections 498-A, 304-B IPC read with Section 3/4 D.P. Act at Police Station Kaudiya, District Gonda on a written complaint of uncle of the deceased, Pammi; it was alleged that the deceased was married to Vinay Kant, alias Babu; marriage took place 5 years before the date of incident; it was further alleged that the accused, named in the FIR, i.e. husband, father-in-law, mother-in-law, two elder brother-in-laws and sister-in-laws were not satisfied with the dowry given at the time of marriage, they were demanding hero-honda motorcycle and one golden chain as additional dowry; all these accused would torture and subject the deceased to cruelty for the additional dowry; on 28.02.2004, information was given to the complainant that the deceased had died and when the family members, including the complainant, reached at the place of incident, they found the deceased lying dead. It was alleged that the in-laws, named in the FIR, had killed the deceased for the dowry demand. 4. The police, after investigating the offence, filed charge-sheet only against the husband, Vinay Kant, alias Babu for the affence under Sections 498-A and 304-B IPC read with Section 3/4 D.P. Act. PW-1, complainant (uncle of the deceased) and PW-2, father of the deceased, were examined. These two witnesses reiterated their allegations made by them under Section 161 CrPC. After their statement/evidenced got recorded in the Court, an application under Section 319 CrPC came to be filed for summoning the applicants as additional accused to face trial. 5. PW-1, complainant (uncle of the deceased) and PW-2, father of the deceased, were examined. These two witnesses reiterated their allegations made by them under Section 161 CrPC. After their statement/evidenced got recorded in the Court, an application under Section 319 CrPC came to be filed for summoning the applicants as additional accused to face trial. 5. The learned trial Court vide order dated 28.11.2005, rejected the said application on the ground that there was no credible and cogent evidence available on record against the applicants to summon them as additional accused regarding their involvement in commission of the offence. It was further held that the charge was framed against the husband of the deceased under Sections 498-A and 304-B IPC read with Section 3/4 Dowry Prohibition Act and in alternative under Section 302 IPC. In view thereof, there was no cogent and credible evidence available against the applicants. The learned trial Court dismissed the application under Section 319 CrPC filed on behalf of the complainant. This order dated 28.11.2005 was challenged before this Court by way of filing Criminal Revision No.653 of 2005. 6. This Court vide the said order dated 26.11.2008 allowed the said criminal revision on the ground that the law on the subject was already settled that if the evidence collected during the course of trial goes un-rebutted and was sufficient to prove the offence, the charge should be framed. It was further said that the evidence of PW-1 and PW-2 was of such nature that if the same would go un-rebutted, it would be sufficient to prove the guilt of the persons for their summoning, on an application under Section 319 CrPC may be filed. In view thereof, this Court quashed the order passed by the learned Special Judge dated 28.11.2005 and remanded the matter back to the learned trial Court to take a fresh decision on the application under Section 319 CrPC. 7. On remand, the learned trial Court has passed the impugned order, holding that that the applicants have been specifically named in the evidence of the PW-1 and PW-2, who have said that the applicants were also living in the same house along with the deceased and her husband. It has been said that the applicants used to demand dowry and torture and harass the deceased for dowry demand. It has been said that the applicants used to demand dowry and torture and harass the deceased for dowry demand. The learned trial Court took into consideration observations of this Court in the order dated 26.11.2008 passed in Criminal Revision No.653 of 2005 and held that under these circumstances and, also considering the observation of the High Court, it would be appropriate to summon the applicants as additional accused to face trial. 8. On behalf of the applicants, it has been submitted that the learned trial Court has got swayed by the observation of this Court contained in the order dated 26.11.2008 passed in Criminal Revision No. 653 of 2005; the learned trial Court did not apply its independent mind to the evidence available on record; there is no cogent and credible evidence against the applicants to summon them as additional accused in exercise of extra-ordinary power vested under Section 319 CrPC; the learned trial Court has itself observed that considering the observations of this Court contained in order dated 26.11.2008, it would be appropriate to summon the applicants as additional accused. It has also been submitted on behalf of the applicants that the complainant and father of the deceased had reiterated their stands, which they took in their statements recorded under Section 161 CrPC; there is no other evidence or material which was available before the learned trial Court and, therefore, there was no evidence against the accused, which can be said to be cogent and credible for summoning the applicants as additional accused. It has also been submitted by the learned counsel for the applicants, Mr. Ayodhya Prasad Mishra that the Supreme Court in the case reported in (2012) 10 SCC 741 (Geeta Mehrotra and another Vs. State of Uttar Pradesh and another) has noticed the growing tendency of implicating whole family and distant relatives in such cases. He has submitted that the husband of the deceased is already facing trial for the offences and no purpose would be served to summon the applicants as additional accused to face trial as there is no cogent and credible evidence, which would lead to their conviction. 9. On the other hand, on behalf of respondent-State, Mr. He has submitted that the husband of the deceased is already facing trial for the offences and no purpose would be served to summon the applicants as additional accused to face trial as there is no cogent and credible evidence, which would lead to their conviction. 9. On the other hand, on behalf of respondent-State, Mr. Anurag Varma, learned AGA, has opposed the application and submitted that this application under Section 482 CrPC is not maintainable inasmuch as there is remedy of revision available against the order passed under Section 319 CrPC. Mr. Varma has further submitted that the evidence of PW-1 and PW-2 is of such nature which would lead to conviction of the applicants, who have been summoned as additional accused vide the order impugned. It has also been submitted that it cannot be said that evidence of PW-1 and PW-2 is not cogent and credible. He has drawn attention of this Court towards the order passed by the learned trial Court wherein it has been observed that the applicants live with the husband of the deceased in the same house and, they tortured and harassed the deceased for additional dowry demand. Mr. Varma, therefore, submits that the learned trial Court has rightly exercised jurisdiction vested under Section 319 CrPC for summoning the applicants to face trial as additional accused and there is no merit and substance in the present application, which may be dismissed. 10. I have considered the submissions advanced by the learned counsel for the parties. 11. This Court vide order dated 26.11.2008 passed in Criminal Revision No. 653 of 2005 remanded the matter back on the ground that satisfaction, which needs to be seen at the time of framing of charge, should be seen at the time of summoning a person as an additional accused in exercise of power under Section 319 CrPC and on that ground the case was remanded back to the learned trial Court. The impugned order would show that the learned trial Court had got swayed by the observations of this Court. Except one observation that the applicants were living together with the husband of the deceased and deceased at the relevant time, it can be said that the trial Court has applied its judicial mind to the evidence available on record. The impugned order would show that the learned trial Court had got swayed by the observations of this Court. Except one observation that the applicants were living together with the husband of the deceased and deceased at the relevant time, it can be said that the trial Court has applied its judicial mind to the evidence available on record. The investigating officer, after considering the evidence collected during the course of investigation, did not find the allegations credible against the applicants and, therefore, no charge-sheet was filed against them. Same allegations have been reiterated by the PW-1 and PW-2 in their examination before the Court. If one compares statements of PW-1 and PW-2 given to the investigating officer under Section 161 CrPC and their evidence before the Court, he would find that there is no difference and the same versions have been reiterated before the Court as well. 12. The Supreme Court in (2014) 3 SCC 92 (Hardeep Singh v. State of Punjab and others) in paras 105 and 106, while dealing with the scope and ambit of Section 319 CrPC, has held as under:- "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. 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”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused." 13. The powers under Section 319 CrPC is discretionary and extraordinary,, which needs to be exercised sparingly and not in casual and caviler manner for summoning a person as additional accused. There has to be cogent and credible evidence, which, if goes un-rebutted that would lead conviction of the accused. 14. In (2017) 7 SCC 706 (Brijendra Singh and others Vs. State of Rajasthan) the Supreme Court, while considering the judgment passed in the case of Hardeep Singh (supra) regarding satisfaction that is required for invoking the powers under Section 319 CrPC, in para15 has held as sunder: "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 CrPC 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. 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." 15. Considering the aforesaid two judgments of the Supreme Court, this Court is of the considered view that except for the statements of PW-1 and PW-2, who are uncle and father of the deceased, there is nothing on record, which would be treated to be cogent and credible evidence against the applicants for their summoning as additional accused to face the trial. The two witnesses have reiterated their stands as taken by them in their statements recorded under Section 161 CrPC. The husband is already facing trial. In this view of the matter, the impugned order passed by the learned trial Court is unsustainable and, therefore, the same is hereby set-aside. 16. Allowed.