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2022 DIGILAW 210 (UTT)

Akash Yadav v. State of Uttarakhand

2022-07-18

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. The challenge in this revision is made to the order dated 19.9.2018, passed in the Sessions Trial No. 223 of 2017, State vs. Brijesh Singh Yadav and Others, by the court of 3rd Additional Sessions Judge, Rudrapur, District Udham Singh Nagar. By the impugned order, an application filed under Section 319 of the Code of Criminal Procedure, 1973 (for short “the Code”) by the prosecution has been allowed and the revisionists have been summoned. 2. Heard learned counsel for the parties and perused the record. 3. Learned counsel for the revisionists would submit that the order summoning the revisionists is bad in the eyes of law; the informant is not an eye-witness; PW-2 Ashwani Kumar, who has been examined at the trial has though named all the revisionists but, the injured has yet not been examined. 4. It is argued that examination of injured is essential and material evidence in the instant case because although FIR was filed against the revisionists also but, the injured in his statement, given during investigation, did not name the revisionists as the persons, who fired at him. Therefore, merely on the basis of statements of some other persons, the revisionists could not have been summoned under Section 319 of the Code. 5. The informant has filed counter affidavit in this case but, none is present on behalf of the informant today. State did not opt to file any objection in this revision. 6. Learned counsel for the State would submit that the name of the revisionists have been disclosed by the informant in his statement given during trial. Moreover, PW-2 Ashwani Kumar also named the revisionists. 7. A very short question is pending adjudication in this Court for the last four years. The validity of an order passed under Section 319 of the Code. 8. Section 319 of the Code empowers the court to summon any person not an accused, to face trial with the existing accused, if it appears from the evidence that such persons may be so tried. This Section is as hereunder: “319. The validity of an order passed under Section 319 of the Code. 8. Section 319 of the Code empowers the court to summon any person not an accused, to face trial with the existing accused, if it appears from the evidence that such persons may be so tried. This Section is as hereunder: “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 afresh, 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.” 9. A bare perusal of Section 319 of the Code reveals that the court has to first record a preliminary satisfaction that some other person may be tried along with the existing accused. The summoning order should be categorical, as to under what offences the persons have been summoned under Section 319 of the Code. In the instant case, the impugned order does not reveal, as to under what offences the revisionists have been summoned. This is one aspect of the matter. 10. What would be the level of satisfaction to summon a person under Section 319 of the Code? In the case of Hardeep Singh vs. State of Punjab and Others, (2014) 3 SCC 92 , the Hon’ble Supreme Court discussed this point and related issues. This is one aspect of the matter. 10. What would be the level of satisfaction to summon a person under Section 319 of the Code? In the case of Hardeep Singh vs. State of Punjab and Others, (2014) 3 SCC 92 , the Hon’ble Supreme Court discussed this point and related issues. Question No. 4, as formulated in the case of Hardeep Singh (supra) is as hereunder: “Question (iv) - What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?” 11. This has been answered by the Hon’ble Supreme Court in Para 106. Para 106 reads as hereunder: “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 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.” (Emphasis supplied) 12. Although, this answer has been further recorded by the Hon’ble Supreme Court in the Hardeep Singh (supra) in Para 117.5. It is as hereunder: “117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. It is as hereunder: “117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.” 13. Summoning of an accused at the initial stage, when cognizance is taken does not require meticulous examination of the material. A prima facie satisfaction at that stage is recorded, which means some offence is committed and there are grievous doubt that the person summoned is involved in such persons. Beyond it, when the trial proceed at the stage of framing of charges, the satisfaction to frame charge is little higher than the satisfaction which is recorded at the time of recording prima facie satisfaction for summoning an accused. Needless to say, at the time of final adjudication the type of satisfaction which is required is proof beyond reasonable doubt. 14. Summoning of an accused in a criminal trial is not a routine. After all a person has to undergo trial. In the case of Pepsi Food Ltd. and Another vs. Special Judicial Magistrate and Another, (1998) 5 SCC 749 , in paragraph 28, the Hon’ble Supreme Court has discussed the aspect of summoning of an accused and its consequences, which reminds that the order of the Magistrate summoning an accused must reflect that he has applied his mind to the facts of the case under law applicable thereto. Its Para 28 is as hereunder: “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. Its Para 28 is as hereunder: “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 15. In the instant case, though FIR has been lodged against the revisionists also but, fact remains that during investigation the injured did not name the revisionists as the persons, who fired at him. 16. In fact, according to the prosecution case, on 03.06.2017, at 04:30 in the morning, the revisionists and other waylaid the injured and fired at him. The FIR records that at the time of incident the injured was accompanied by Ashwani and Lokesh. The Investigating Officer after investigation concluded that the revisionists were not found involved in the case. 17. As stated, the injured told it to the Investigating Officer that he was waylaid and fired by the charge-sheeted accused, who are Kishan Singh Nepali, Brijesh Yadav and one Sonu Mishra alias Parvesh Mishra. It is important to mention here that Sonu Mishra alias Parvesh Mishra was not named in the FIR. 18. In view of the statements of the witnesses recorded during investigation, this Court is of the view that the kind of satisfaction which is required for summoning a person under Section 319 of the Code is lacking in the instant case. It is important to mention here that Sonu Mishra alias Parvesh Mishra was not named in the FIR. 18. In view of the statements of the witnesses recorded during investigation, this Court is of the view that the kind of satisfaction which is required for summoning a person under Section 319 of the Code is lacking in the instant case. Despite the FIR having been named against the revisionists also, the fact remains that the injured did not name the revisionist. Fact remains that the Investigating Officer did not find involvement of the revisionists. Therefore, this Court is of the view that based on the statement of PW-1, who is informant and not the eye-witness and PW-2 Ashwani Kumar, who is named as an eye-witness in the FIR, the level of satisfaction has not arrived, which is required for summoning a person under Section 319 of the Code. 19. In view of it, this Court is of the view that the order summoning the revisionists is bad in the eyes of law. 20. However, this Court keeps it open that once injured is examined, if occasion arises, the matter may further be considered for summoning any other person for their trial along with the existing accused, if application to that effect is moved in the court. Accordingly, the revision deserves to be allowed and the impugned order dated 19.09.2018, deserves to be set aside. 21. The revision is allowed. The impugned order dated 19.09.2018, is hereby set aside.