Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1874 (ALL)

Gaurav Sharma v. State of U. P.

2022-11-29

KARUNESH SINGH PAWAR

body2022
JUDGMENT : 1. The petition has been filed under Section 482 CrPC for quashing order dated 28.7.2022 passed by Addl. district & Sessions Judge, Court No.5, Hathras in S.T. No.216 of 2019 State versus Yogesh Baghel and others and the further proceedings thereof, arising out of Case Crime No.126 of 2019 under sections 307, 147, 148, 149, 120-B I.P.C., P.S. Hathras Kowali, district Hathras. 2. Heard Mr. Vibhu Rai, learned counsel for the petitioner and learned A.G.A. for the State as also Mr. Sanjay Kumar Dubey, learned counsel for respondent No.2 who has submitted that he does not want to file any counter affidavit. Both the parties' counsel state that the matter may be finally decided. 3. Learned counsel for the petitioner submits that the petitioner is presently working as Assistant Clerk in Seth Harijan Das Girls Inter College, Hathras (to be hereafter referred to as 'college'). The injured Madan Mohan Gautam was also working as Clerk at that time in the college. It is submitted that regarding forgery committed by the injured in his two appointment letters, a complaint was filed by the applicant to the District Magistrate, Hathras, on which a reply was called from the Manager. Thereafter, the District Inspector of Schools, Hathras directed the Manager on 31.8.2020 to submit a report regarding illegal appointment of injured Madam Mohan Gautam. In the meantime, Madam Mohan Gautam, injured was also involved in appointment of one Rajeshwari on class-IV post on forged and fabricated papers and he had also taken bribe to procure the said appointment in the college. When the said illegality was surfaced, Rajeshwari was removed from service and Madan Mohan Gautam was attached in the government labrary by the District Inspector of Schools. Since Rajeshwari has given huge amount of money for appointment to the injured Madan Mohan Gautam, hence her son Laltu alias Lalit was having enmity against Madan Mohan Gautam. On the date of the incident, i.e. on 12.4.2019, the injured Madan Mohan Gautam was transferred back to the college and joined. On that day, he was attacked by Laltu alias Lalit along with the two co-accused persons. One gun shot injury was shown in the medical examination report. It is submitted that in the first information report, presence of the applicant has not been shown on the spot, although suspicion was raised upon the applicant along with other co-accused persons. On that day, he was attacked by Laltu alias Lalit along with the two co-accused persons. One gun shot injury was shown in the medical examination report. It is submitted that in the first information report, presence of the applicant has not been shown on the spot, although suspicion was raised upon the applicant along with other co-accused persons. The prosecution witness Yashomani Gautam (respondent No.2) who is son of the injured in his statement has alleged that three accused persons fired on his father with an intent to kill, however, presence of the present applicant was not shown at the spot. Again, suspicion was raised by him. Another son of the injured Rajatmani alias Rahul in his statement has clearly mentioned the name of three assailants, i.e. Vishal, Laltu and Kanha and has alleged that all the three assailants were on a Platina motorcycle and fired with an intent to kill at his father Madan Mohan Gautam. The injured Madan Mohan Gautam has also taken the name of aforesaid three accused persons, i.e. Vishal, Laltu and Kanha. He also did not show presence of the applicant at the place of occurrence. In fact, he has not even taken the name of the applicant in any manner. He even stated that he is not aware as to who is behind this conspiracy and this fact can be culled out by interrogation of Vishal, Laltu and Kanha. The co-accused Laltu in his confessional statement has confessed the guilt and has stated that the conspiracy was hatched by him with other two co-accused persons and one motorcycle Platina black colour was also made available by Yogesh Baghel and some cash was also given by him. He has also not taken the name of the applicant in the incident. After conclusion of investigation, charge-sheet was filed by the investigating officer against Yogesh Kumar, Laltu, Vishal Sharma and Kanha. The investigating officer did not find complicity of the applicant. One Bajaj Platina Black motorcycle No.UP86 E 3056 was recovered. Learned counsel for the applicant submits that on 4.2.2020, on a complaint made by the applicant, the Commissioner, Aligarh Region has directed District Magistrate, Hathras to conduct an enquiry in the matter of forgery committed by Madan Mohan Gautam regarding his two appointment letters. One Bajaj Platina Black motorcycle No.UP86 E 3056 was recovered. Learned counsel for the applicant submits that on 4.2.2020, on a complaint made by the applicant, the Commissioner, Aligarh Region has directed District Magistrate, Hathras to conduct an enquiry in the matter of forgery committed by Madan Mohan Gautam regarding his two appointment letters. It is submitted that after the aforesaid letter dated 4.2.2020 was written, P.W.2 Madan Mohan Gautam, injured was examined before the trial court. While being examined before the trial Court, he took a u-turn and for the first time in the prosecution case, second motorcycle was introduced by the injured witness. It is submitted that it is in the statement before the court, P.W.2 injured witness while introducing second motorcycle has stated in his cross-examination that the applicant was riding on the Splender motorcycle which belongs to him. He further stated that five persons were present at the place of occurrence. The Splender motorcycle was driven by Lalit on which Gaurav Sharma, Lalit and Yogesh Baghel were riding and Nitin and Vishal were riding on the Platina motorcycle. It is contended by learned counsel for the applicant that the trial court has failed to consider the fact that the investigating officer after meticulous investigation and on the basis of confessional statement made by Lalit has filed the charge sheet and has recovered the Platina motorcycle. No other motorcycle was recovered by the investigating officer nor was found involved in the crime. Both the sons of injured as well as the injured himself have not assigned the role of firing to the applicant or shown his presence at the spot in their statements under section 161 CrPC. The statement given by the injured Madan Mohan Gautam before the court is nothing but a clear lie and has been used as a tool to exert pressure on the applicant who happens to be the complainant against him and on his complaint, an enquiry has already been ordered by the Commissioner, Aligarh regarding the forgery committed by him in his appointment letter. 4. Per contra, learned A.G.A. and learned counsel for respondent No.2 have opposed the petition. They have submitted that while issuing process under section 319 CrPC, only prima facie case is to be seen. The court cannot go into deeper appreciation of the evidence at this stage. 5. 4. Per contra, learned A.G.A. and learned counsel for respondent No.2 have opposed the petition. They have submitted that while issuing process under section 319 CrPC, only prima facie case is to be seen. The court cannot go into deeper appreciation of the evidence at this stage. 5. A Constitution Bench of Supreme court in Hardeep Singh versus State of Punjab (2014)3 SCC 92 held that power under section 319 CrPC which is a discretionary and an extraordinary power is to be exercised sparingly and only in those cases where the circumstances of the case so warrant and when there are strong and cogent evidence against a person from the evidence led before the court. It has also been held that power is not to be exercised in a casual and cavalier manner. Relevant paras 105 and 106 are extracted below : "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 the case of Brijendra Singh and others versus State of Rajasthan (2017)7 SCC 706 it has been held that the trial court is required to look into the material collected by the investigating officer during the course of investigation before forming prima facie opinion for summoning a person as an additional accused if that material collected by the investigating officer shows another story. 6. In the case in hand, the statement of the injured under section 161 CrPC and the statement of his two sons do not show the presence of the applicant at the place of occurrence. All three material prosecution witnesses have stated that only one Platina motorcycle was used. There is no whisper regarding the second motorcycle. However, at the time of statement and cross examination before the trial court, the injured witness has taken an U-turn and instead of three, has introduced five assailants, one additional motorcycle belonging to the applicant and therefore, the trial court should have at least taken note of their statements given to the investigating officer under section 161 CrPC, on the basis of which, the charge sheet was filed by the investigating officer and name of the applicant was dropped. The fact that the accused Lalit has confessed his guilt in his statement under section 161 CrPC and only one motorcycle was recovered by the investigating officer should have also been taken note of, by the trial court. 7. It is well settled that power under section 319 CrPC is to be exercised primarily for providing or espousing the cause of criminal justice. At the stage of section 319 CrPC, the trial court is duty bound to at least look into the material which persuaded the investigating officer to file a final report/closure report against an accused person. 7. It is well settled that power under section 319 CrPC is to be exercised primarily for providing or espousing the cause of criminal justice. At the stage of section 319 CrPC, the trial court is duty bound to at least look into the material which persuaded the investigating officer to file a final report/closure report against an accused person. The material on the basis of which the closure report against an accused has been filed and his name has been dropped while filing the charge sheet must be taken note of, by the trial court. Merely on a statement given by a prosecution witness and introducing altogether a new fact for the first time during trial which is in stark contradiction to the statement given by that person during investigation under section 161 CrPC, that too by an injured witness, additional accused which in this case is the applicant could not have been summoned. The trial court should have, therefore, noted statement given by the injured witness to the Investigating Officer, the statement of the two sons of the injured as well as the confessional statement of the main accused person and the recovery done by the investigating officer on the basis of which the police report was filed. 8. In the present case, the trial court has not considered the aforesaid material, i.e. the statement of the injured under section 161 CrPC, statement of his two sons under section 161 CrPC, confessional statement of the co-accused person, recovery of only one motorcycle, i.e. Platina and hence by overlooking the evidence collected by the investigating officer which demonstrate that the present applicant was not present at the time and place of occurrence, neither there was any material to indicate his conspiracy in the commission of offence and merely relying on the statement recorded during examination of the injured witness before it which finds no corroboration with the entire prosecution case earlier; rather is in stark contradiction to the earlier prosecution case and the material collected by the investigating officer, therefore, the impugned order cannot be sustained and is liable to be set aside. 9. Accordingly, the petition is allowed and the impugned order dated 28.7.2022 (supra) is set aside.