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2022 DIGILAW 24 (UTT)

Priya Sharma v. State of Uttarakhand

2022-02-25

RAVINDRA MAITHANI

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JUDGMENT : Ravindra Maithani, J. Challenge in the petition is made to the following:- (i) the order dated 03.11.2017, passed in the Criminal Case No. 420 of 2012 Deepak Bahtham Vs. Vivek Sharma and others under section 379 IPC (“the case”) by the court of Judicial Magistrate, Narendra Nagar, District Tehri Garhwal. By this order an application under Section 319 of the Code of Criminal Procedure, 1973. (“the Code”) filed by the respondent no. 2 (“the complainant”) has been allowed and the petitioners Smt. Priya Sharma and Rahul Sharma have been summoned to answer the accusation under section 379 IPC. (ii) the order dated 27.09.2018 passed in the Criminal Revision No. 29 of 2017 Rahul Sharma and another Vs. State of Uttarakhand and another by court of Additional District and Sessions Judge, District Tehri Garhwal. By it, the impugned order dated 03.11.2017 has been upheld. 2. Facts, briefly stated, are as follows:- The complainant filed an application under Section 156 (3) of the Code for investigation, on which, a police report was sought. The police reported that no offence as such is made out. It is, thereafter that the application under Section 156 (3) of the Code was registered as a complaint. After inquiry, under Section 200 and 202 of the Code, vide order dated 14.03.2013, four persons were summoned to answer the accusations under Section 379 IPC. The trial continued. At the stage of recording of evidence under section 244 of the Code, five witnesses were examined, namely, PW1 Deepak Bothem, PW2 Shubham, PW3 Harshit Goel, PW4 Manik Goel and PW5 Sri Krishna. Thereafter, the complainant moved an application under Section 319 of the Code with the request that there is evidence against the petitioners as well and they may be tried along with the accused. Therefore, the petitioners may also be summoned to answer the accusations under Section 379 IPC. By the impugned order dated 03.11.2017, the application was allowed and the petitioners were summoned to answer the accusations under Section 319 IPC. The order dated 03.11.2017 was unsuccessfully challenged by the petitioners, in Criminal Revision No. 29 of 2017, Rahul Sharma and another Vs. State of Uttarakhand and another, in the court of Additional District and Sessions Judge, Tehri Garhwal. 3. Heard learned counsel for the parties and perused the record. 4. The order dated 03.11.2017 was unsuccessfully challenged by the petitioners, in Criminal Revision No. 29 of 2017, Rahul Sharma and another Vs. State of Uttarakhand and another, in the court of Additional District and Sessions Judge, Tehri Garhwal. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioners would submit that while summoning an accused under Section 319 IPC, the level of satisfaction should be more than a prima facie case, which is required at the stage of initial summoning of an accused. Learned counsel raised the following points in his arguments:- (i) After the stage of section 244 of the Code, the Magistrate has to form an opinion as to whether charge may be framed or the accused may be discharged. It is argued that what if, the main accused are discharged? It is argued that in such case, the summoning of the petitioners at this stage, would be a futile exercise. (ii) At the stage of section 244 of the Code, though, the Magistrate may exercise jurisdiction under Section 319 of the Code to summon any person, but, it should not be a routine and mechanical exercise. (iii) At the stage of inquiry under Sections 200 and 202 of the Code, similar evidence was available, which then was not found sufficient to summon the petitioners to answer the accusations under Section 379 IPC. Therefore, it is argued that the same set of evidence with some more persons, appearing as a witness, may not be a ground to summon the petitioners now. (iv) Offence under Sections 379 IPC is punishable with the imprisonment for three years in period, the limitation for taking cognizance of the offence under Section 468 of the Code is three years. Allegedly, the offence was committed on 24.12.2012 and the summoning under Section 319 of the Code has been done on 03.11.2017, which is beyond limitation. 5. Learned counsel for the petitioners has referred to a judgment in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 . In the case of Hardeep Singh (supra), the Hon’ble Supreme Court has interpreted the scope of Section 319 of the Code. 5. Learned counsel for the petitioners has referred to a judgment in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 . In the case of Hardeep Singh (supra), the Hon’ble Supreme Court has interpreted the scope of Section 319 of the Code. What would be the level of satisfaction to summon any person to face trial, it has been observed by the Hon’ble Supreme Court in paragraph 106 of the judgment, which is 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 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.” (emphasis supplied) 6. At paragraph 117.5, when answering the questions, the Hon’ble Supreme Court has made distinction between the degree of satisfaction that is required for initially summoning the accused and the subsequent summoning. It is as hereunder:- “117.5. Though under Section 319(4)(b) CrPC 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 CrPC would be the same as for framing a charge “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”. 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.” (emphasis supplied) 7. On the other hand, learned counsel appearing for complainant would submit that if during the course of any inquiry or trial any evidence is appeared against any other person, such person may be summoned as an accused to face the trial. It is argued that at the stage of section 244 of the Code, witnesses have stated about the petitioners; even examination in chief may be treated as evidence for summoning a person under Section 319 of the Code. Learned counsel appearing for the complainant would also submit that the order is not barred by limitation because the complainant had already filed a report within limitation. It is argued that no interference is warranted in this matter. 8. The level of satisfaction for summoning a person under Section 319 of the Code is definitely higher than that which is required at the time of summoning of an accused at the initial stage. At the initial stage, the satisfaction required is prima facie case. It simply means that some offence has been committed in which there are grave doubts that the person to be summoned is involved. In view of the judgment in the case of Hardeep Singh (supra), for summoning a person under Section 319 of the Code, the level of satisfaction should be lower than what is required at the time of framing of charge, but higher than what is required at the time of initial summoning of a person. It should be stronger evidence that mere probability of his complicity. It should be stronger evidence that mere probability of his complicity. The test to be applied is, as held in the case of Hardeep Singh (supra), that “the test that has to be applied is one which is more than prima facie case which as exercised at the time of framing of the charge, but sort of satisfaction to an extent that the evidence it goes unrebutted would lead to the conviction.” 9. Section 319 of the Code is applicable at both stages i.e. at inquiry and at trial. The stage under Section 244 of the Code is the stage of inquiry. Section 245 of the Code, deals with the situation, when an accused may be discharged. Such discharge may be made only when no case against the accused has been made out, which, if unrebutted, would warrant his conviction. But, this level of satisfaction is not required for summoning an accused under Section 319 of the Code, as held in the case of Hardeep Singh (supra). What is required is slightly lower than it, but above the prima facie case. Therefore, merely on the assumption that what would happen at the stage of 245 of the Code, it cannot be said that a Magistrate may not exercise its jurisdiction under Section 319 of the Code at the stage of 244 of the Code. 10. An issue with regard to the limitation has been raised. It is argued that the cognizance is barred under Section 468 of the Code. Section 468 of the Code prescribes certain contingencies beyond which cognizance could not be taken. It is as hereunder:- “468. Bar to taking cognizance after lapse of the period of limitation.—(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.” 11. A bare reading of the provisions of Section 468 of the Code makes it abundantly clear that it deals with taking cognizance of an offence. Taking cognizance of an offence is something different than summoning of an accused. Summoning may be subsequent to taking of cognizance. A reference may be made to Section 319 (4) (b) of the Code, which reads as hereunder:- “319. Power to proceed against other persons appearing to be guilty of offence.- ………………………………………………………………… ………………………………………………………………… (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.” 12. In the instant case, the Court had taken cognizance of the offence within the period of limitation. The application under Section 156 (3) of the Code was filed against the petitioners also and that was within limitation. Initially, the court took cognizance and summoned the other persons on 12.04.2013. The date of taking cognizance is 12.04.2013. In fact, for the purpose of computing the period of limitation, it is not the date, when the Magistrate takes cognizance, instead when the complaint is filed in the court, as held in the case of Japani Sahoo Vs. Chandra Shekhar Mohanty (2007) 7 SCC 394 . 13. Therefore, merely because a person is summoned under Section 319 of the Code beyond the period of limitation, it cannot be said that cognizance is taken against him beyond limitation provided the cognizance of the offence has been taken within limitation. Chandra Shekhar Mohanty (2007) 7 SCC 394 . 13. Therefore, merely because a person is summoned under Section 319 of the Code beyond the period of limitation, it cannot be said that cognizance is taken against him beyond limitation provided the cognizance of the offence has been taken within limitation. In the instant case, cognizance had almost been taken within the period of limitation. Therefore, this argument has less force. 14. The question which falls for consideration is the kind of satisfaction which is required for summoning a person under Section 319 of the Code and further as to whether that satisfaction was arrived at judicially in the instant case. 15. It may be noted that in this case, at the stage of inquiry under Section 200 and 202 of the Code, two witnesses were examined. In fact, the complainant was examined under Section 200 of the Code. He is not an eyewitness. He named the petitioners as well in his examination under Section 200 of the Code. The other witness who was examined under Section 202 of the Code is PW5 Sri Krishna. He did not name the petitioners. The father of the complainant Girish Batham was also examined as a witness at the stage of inquiry under Section 202 of the Code and he named both the petitioners under Section 202 of the Code. As stated, the petitioners were not summoned after inquiry under Sections 200 and 202 of the Code. 16. Now, the question arises, if on the similar set of the evidence recorded during inquiry under Sections 200 and 202 of the Code, the petitioners were not summoned, what was the extra material at the stage of Section 244 of the Code, which made the court to believe that the petitioners may be tried alongwith the existing accused. At the cost of repetition, this Court may like to record that for summoning a person under Section 319 of the Code, the level of satisfaction should be slightly higher than merely a prima facie case. 17. At the stage of inquiry under Section 244 of the Code, the complainant and Sri Krishna who were examined under Sections 200 and 202 of the Code have been examined as PW1 and PW5. Three more witnesses were also examined, namely, PW2 Shubham, PW3 Harshit Goel, PW4 Manik Goel. 17. At the stage of inquiry under Section 244 of the Code, the complainant and Sri Krishna who were examined under Sections 200 and 202 of the Code have been examined as PW1 and PW5. Three more witnesses were also examined, namely, PW2 Shubham, PW3 Harshit Goel, PW4 Manik Goel. They all have stated about the petitioners as well as one more Manoj. Simply, the quantity had increased. At the stage of inquiry under Sections 200 and 202 of the Code also, the complainant had stated the petitioners as well as one more person and his father Girish Batham had stated about the petitioners. They were not summoned then. Now, the question to be answered is as to whether merely quantifying the number of witnesses can raise the level of satisfaction? Definitely it can not. 18. There is another aspect of the matter. All the witnesses who were examined under Sections 200 and 202 of the Code have also stated about one more person Manoj, as an accused. But, the application under Section 319 of the Code was moved by the complainant only against the petitioners leaving Manoj. Why? Why court did not consider that aspect? In fact, the impugned order, passed in the case does not record that the level of satisfaction which was arrived at by the court below was higher than the level of satisfaction, as required for establishing the prima facie case. 19. Therefore, this Court is of the view that there has been no reason to summon the petitioners under Section 319 of the Code and the impugned orders deserve to be set aside and petition allowed. 20. The petition is allowed. 21. The impugned orders dated 03.11.2017 and 27.09.2018 are set-aside. Consequently, the application under section 319 of the Code filed by the complainant is dismissed.