Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1679 (ALL)

Puneet Sharan Tiwari v. State of U. P.

2023-07-13

SURENDRA SINGH I

body2023
JUDGMENT Surendra Singh-I, J. Heard Shri K.S. Tiwari, learned counsel for the applicants, Shri Surendra Kumar Chaubey, learned counsel for opposite party no. 2, Shri Prashant Saxena, learned A.G.A. for the State and perused the material available on record. 2. The present application under section 482 Cr.P.C. has been filed for quashing the order dated 07.01.2023 passed by the Additional Sessions Judge-Ist, Bhadohi at Gyanpur in S.T. No. 55 of 2019, State v. Shaym Dhar Tiwari and others, arising out of Case Crime No. 192 of 2017, under Sections 147, 323, 504, 506, 308 I.P.C., Police Station Koirauna, District Bhadohi. Vide the impugned order, the Trial Court has summoned applicants under Section 319 Cr.P.C. for trial. 3. It has been submitted by the learned counsel for the applicants that the Trial Court has summoned them for trial under the aforesaid sections without any evidence. It has also been submitted that although they were named in the FIR but the Investigating Officer during investigation did not find any evidence against them and did not file charge sheet against them. It has also been submitted that in the FIR lodged by opposite party no. 2, Abhishek Tiwari against applicants and six other accused persons, general role of abusing and beating the informant has been made against the applicants along with other co-accused persons. No specific role has been assigned to them. It is submitted that applicants have been falsely implicated due to previous enmity. It has also been submitted that in the evidence recorded under Section 161 Cr.P.C., the main role of causing injury to opposite party no. 2 and his mother, Meena Tiwari has been assigned to co-accused Kripashankar and applicants are not concerned with the offence under Section 308 I.P.C. It has also been submitted that there was no sufficient evidence on record to summon applicants for trial under Section 319 Cr.P.C. but the Trial Court wrongly summoned them. 4. The applicants have place reliance upon a judgment of the Apex Court in Naveen v. State of Haryana, passed in SLP (Crl) No. 3446 of 2022 on 01.11.2022. 5. Learned counsel for opposite party no. 2 as well as the learned A.G.A. have opposed the application and submitted that applicants are named in the FIR along with six other co-accused having equally participating in the offence. 5. Learned counsel for opposite party no. 2 as well as the learned A.G.A. have opposed the application and submitted that applicants are named in the FIR along with six other co-accused having equally participating in the offence. They have also stated that the Investigating Officer had wrongly dropped their names while filing charge-sheet. It is submitted that after framing of the charge, the prosecution witnesses injured, P.W.-1-Abhishek Tiwari, injured P.W.-2-Smt. Meena Tiwari and eye witness P.W.-3-Jatashankar Tiwari have supported the prosecution case and deposed against the applicants as well as other co-accused of having complicity in the offence during the course of which P.W.-1 Abhishek Tiwari and P.W.-2 Meena Tiwari have received fatal injuries. 6. Learned counsel for opposite party no. 2 have placed reliance upon the judgment of Apex Court in Manjeet Singh v. State of Haryana, 2021 AIR SC 4274. 7. The scope and ambit of Section 319 Cr.P.C. has been well-settled by the pronouncement of Constitution Bench of the Hon'ble Apex Court in Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 and paras 105 and 106 which are relevant for the purpose are reproduced hereunder : "105. Power under Section 319 Cr.P.C, 1973 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 Cr.P.C., 1973. 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 Cr.P.C., 1973. In Section 319 Cr.P.C., 1973, 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., 1973 to form any opinion as to the guilt of the accused." 8. In S. Mohammad Ispahani v. Yogendra Chandak (2017) 16 SCC 226 , this Court has observed and held as under : "35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 of the Cr.P.C. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused." 9. Once that stage has gone, the Court is still not powerless by virtue of Section 319 of the Cr.P.C. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused." 9. In the case of Rajesh v. State of Haryana (2019) 6 SCC 368 , after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in F.I.R. but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 Cr.P.c. and even those persons named in the F.I.R. but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused. 10. From the above rulings of Hon'ble Supreme Court, it can be concluded that the trial court can summon persons who have been charge-sheeted as accused on the basis of examination-in-chief of a witness. It is not necessary that the witness should be cross-examined before such person can be summoned under Section 319 Cr.P.C. The evidence required for summoning such persons under Section 319 Cr.P.C. is more than prima facie case but it is short of such evidence which if not rebutted will result in conviction of the persons summoned for trial. 11. Informant, P.W.-1 Abhishek Tiwari has lodged the first information report giving rise to case crime no. 192 of 2017 against applications, Puneet Sharan Tiwari and Amit Kumar and six other co-accused alleging that they were illegally constructing the toilet on their land. When the accused were prevented from doing so, they started abusing him and beat the applicant with Lathi, Danda and fists and on being calling for help when his mother reached for his rescue, the accused beat her also causing fatal injuries. After investigation, charge sheet has been filed against the applicants and other co-accused persons. After framing of charge, the Court recorded statement of injured, P.W.-1-Abhishek Tiwari, injured P.W.-2-Smt. Meena Tiwari and eye witness P.W.-3-Jatashankar Tiwari. 12. After investigation, charge sheet has been filed against the applicants and other co-accused persons. After framing of charge, the Court recorded statement of injured, P.W.-1-Abhishek Tiwari, injured P.W.-2-Smt. Meena Tiwari and eye witness P.W.-3-Jatashankar Tiwari. 12. From perusal of statements of P.W.-1, P.W.-2 and P.W.-3 it transpires that that on the alleged date, time and place of occurrence applicants-accused along with six other co-accused persons, in furtherance of common intention hurled abuses to the informant and his mother and when he prevented them, they started beating him and his mother with Lathi, Danda and fists causing fatal injuries. The incident was witnessed by P.W.-3 Jatashankar Tiwari. 13. Considering the impugned order in light of the statements of P.W.-1, P.W.-2 and P.W.-3 recorded in the court in the light of law laid down by the Hon'ble Apex Court regarding the summoning of persons who have not been named in the charge-sheet as accused under Section 319 Cr.P.C., I find no illegality, irregularity or jurisdictional error in the impugned order passed by the trial court. 14. The Trial Court has rightly passed the impugned order dated 07.01.2023. There is no error or illegality in the impugned order and therefore, this Court does not find any good ground to interfere in the impugned order. 15. Accordingly, the application under section 482 is rejected. 16. Interim order, if any, granted earlier, stands vacated.