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2022 DIGILAW 456 (ALL)

Lalia @ Chandra Prakash v. State of U. P.

2022-03-29

SHAMIM AHMED

body2022
JUDGMENT : [Shamim Ahmed, J.] 1. This criminal revision has been filed by the revisionist Lalia @ Chandra Prakash against the judgment and order dated 22.12.1993 passed by Sessions Judge, Etawah summoning the revisionist under Section 319 CrPC for facing the trial in ST No. 435 of 1990 under Section 307 IPC and further issuing non bailable warrant against the revisionist for his appearance before the Court below. 2. Heard Sri Purushottam Dixit, learned counsel for the revisionist, learned A.G.A. for the State and perused the record. 3. Brief facts of the case are that on 14.5.1990 an FIR was lodged by the informant Ved Prakash that accused Surendra and others had injured his brother Chandra Prakash by opening fire upon him. 4. Learned counsel for the revisionist submits that after investigation the police has submitted the police report against two accused persons namely Surendra son of Baburam and Babu Ram son of Charan Lal only. However, as against the revisionist no police report was filed and the investigation against him was pending. He further submits that thereafter the learned Sessions Judge without perusing the papers on record and without considering the fact of pendency of investigation against the applicant issued the process in exercise of power under Section 319 CrPC and summoned the revisionist. 5. Learned counsel for the revisionist further submits that the Investigating Officer has not found any material against the revisionist nor found his involvement in the instant case was proved. Therefore, his name was dropped in the charge-sheet. 6. Learned counsel for the revisionist further submits that earlier on an application of the prosecution, the revisionist was ordered to be summoned by the Court below under Section 319 CrPC by order dated 29.5.1991 and the same was challenged before this Court. This Court vide order dated 8.10.1991 passed in Criminal Revision No. 1014 of 1991 quashed the said order of summoning and as such the revisionist cannot again be summoned on the application of the prosecution. 7. Learned counsel for the revisionist further submits that the opposite party No. 2, informant filed an application 48-Kha under Section 319 CrPC before the learned Sessions Judge, Etawah, who without going through the legal provisions contained under Section 319 CrPC summoned the revisionist and others for facing the trial vide impugned order dated 22.12.1993. 8. 7. Learned counsel for the revisionist further submits that the opposite party No. 2, informant filed an application 48-Kha under Section 319 CrPC before the learned Sessions Judge, Etawah, who without going through the legal provisions contained under Section 319 CrPC summoned the revisionist and others for facing the trial vide impugned order dated 22.12.1993. 8. Learned counsel for the revisionist further submits that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be sparingly used only in those cases where the circumstances of the case so warrant. In support of his argument, learned counsel for the revisionist has placed reliance on paragraph 105 and 106 of the Constitution Bench judgment of the Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 . Paragraph 105 and 106 of the aforesaid judgment is quoted 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. 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.” 9. Learned counsel for the revisionist further submits that the above Constitution Bench judgment was duly considered by the Hon'ble Apex Court in the case of Labhuji Amratji Thakor and others v. The State of Gujarat and another, 2018 (0) Supreme (SC) 1147 and has placed reliance on paragraph 9 of the aforesaid judgment which is quoted as under : “9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is ''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 present is a case, where the trial Court had rejected the application filed by the prosecution under Section 319 Cr.P.C. Further, in the present case, the complainant in the F.I.R. has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure. After carrying investigation, the Charge-sheet was submitted in which the appellants names were also not mentioned as accused. In the statement recorded before the Police, the victim has named only Natuji with whom she admitted having physical relations and who took her and with whom she went out of the house in the night and lived with him on several places. The mother of victim in her statement before the Court herself has stated that victim girl returned to the house after one and a half months. In the statement, before the Court, victim has narrated the entire sequence of events. The mother of victim in her statement before the Court herself has stated that victim girl returned to the house after one and a half months. In the statement, before the Court, victim has narrated the entire sequence of events. She has stated in her statement that accused Natuji used to visit her Uncle's house Vishnuji, where she met Natuji. She, however, stated that it was Natuji, who had given her mobile phone. Her parents came to know about she having been given mobile phone by Natuji, then they went to the house of Natuji and threatened Natuji.” 10. Learned counsel for the revisionist has further placed reliance on paragraph 13 and 15 of the judgment of the Hon'ble Apex Court in the case of Brijendra Singh and others v. State of Rajasthan, (2017) 7 SCC 706 , which is quoted as under : “13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: Power under Section 319 Cr.P.C. can be exercised by the trial Court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial Court finds that there is some evidence against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The evidence herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. xx xx xx 15. This record was before the trial Court. Notwithstanding the same, the trial Court went by the deposition of 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 was already there under Section 161 Cr.P.C. 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 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. 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 agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny.” 11. Learned counsel for the revisionist has further placed reliance on paragraph 14 and 15 of the judgment passed by the Hon'ble Apex Court in the case of Periyasami and others v. S. Nallasamy, (2019) 4 SCC 342 and has submitted that the earlier judgment, referred above, was duly considered in the present case. Such orders cannot stand judicial scrutiny.” 11. Learned counsel for the revisionist has further placed reliance on paragraph 14 and 15 of the judgment passed by the Hon'ble Apex Court in the case of Periyasami and others v. S. Nallasamy, (2019) 4 SCC 342 and has submitted that the earlier judgment, referred above, was duly considered in the present case. Paragraph 14 and 15 of the aforesaid judgment is quoted as under : “14. In the First Information Report or in the statements recorded under Section 161 of the Code, the names of the appellants or any other description have not been given so as to identify them. The allegations in the FIR are vague and can be used any time to include any person in the absence of description in the First Information Report to identify such person. There is no assertion in respect of the villages to which the additional accused belong. Therefore, there is no strong or cogent evidence to make the appellants stand the trial for the offences under Sections 147, 448, 294(b) and 506 of IPC in view of the judgment in Hardeep Singh case (supra). The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused. 15. The High Court has set aside the order passed by the learned Magistrate only on the basis of the statements of some of the witnesses examined by the Complainant. Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the Complainant is a husband and has initiated criminal proceedings against family of his in-laws and when their names or other identity were not disclosed at the first opportunity.” 12. Learned counsel for the revisionist has submitted that in view of the law laid down by the Hon'ble Apex Court and the facts and circumstances, as narrated above, and from the perusal of the record, the impugned judgment and order dated 22.12.1993 passed by Sessions Judge, Etawah summoning the revisionist under Section 319 CrPC, is against the spirit and directions issued by the Hon'ble Apex Court. 13. Learned AGA has opposed the argument raised by the learned counsel for the revisionist and has submitted that the impugned order dated 22.12.1993, summoning the revisionist under Section 319 CrPC, was rightly passed. 14. Having heard learned counsel for the parties and after perusal of material on record, this Court is of the opinion that the impugned order passed by the Court below under Section 319 CrPC was without considering the material on record. The Investigating Officer has not found any material against the revisionist nor his involvement in the instant case was proved, therefore his name was dropped in the charge-sheet. This Court further finds that earlier on the application of the prosecution, the revisionist was ordered to be summoned by the Court under Section 319 CrPC by order dated 29.5.1991, but this Court vide order dated 8.10.1991 passed in Criminal Revision No. 1014 of 1991 quashed the said order of summoning and as such the revisionist cannot again be summoned on the application of the prosecution. Thereafter, the opposite party No. 2, informant filed an application 48-Kha under Section 319 CrPC before the learned Sessions Judge, Etawah, who without going through the legal provisions contained under Section 319 CrPC summoned the revisionist and others for facing the trial vide impugned order dated 22.12.1993. The power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be sparingly used only in those cases where the circumstances of the case so warrant as held by the Hon'ble Apex Court in the cases of Hardeep Singh, Labhuji Amratji Thakor, Brijendra Singh and Periyasami (supra). 15. Accordingly, the revision is allowed. The impugned order dated 22.12.1993 passed by Sessions Judge, Etawah summoning the revisionist under Section 319 CrPC for facing the trial in ST No. 435 of 1990 under Section 307 IPC, is hereby set aside.