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2023 DIGILAW 483 (ALL)

Aayasha v. State of U. P.

2023-02-16

SHAMIM AHMED

body2023
JUDGMENT Shamim Ahmed, J. Heard Shri Bhagwati Prasad Nigam, learned counsel for the applicants and Shri Vijay Prakash Dwivedi, learned AGA-1 for the State and perused the record. 2. This application under section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the impugned summoning order dated 1.9.2022 passed by the 1st Additional Sessions Judge, Hardoi in Application moved by the complainant Rahees under section 319 Cr.P.C. (in Sessions Trial No. 244 of 2018, State v. Salman and others), arising out of case crime no. 103 of 2018 under sections 498-A, 304-B IPC and section 3/4 Dowry Prohibition Act, Police Station Baghauli, District Hardoi, whereby the Application no. 33B under section 319 Cr.P.C. has been allowed and applicants have been summoned to face trial. 3. As per the prosecution case a first information report was lodged by the complainant-opposite party no.2 (father of the deceased) on 28.3.2018 against four accused persons including the applicants under sections 498A,304-B IPC and section 3/4 Dowry Prohibition Act alleging therein that the applicants and other accused persons named in the FIR were not satisfied with the dowry given by the complainant in the marriage of his daughter with accused Salman and from the date of marriage, they used to make additional demand of dowry in the form of Alto Car. They also used to torture his daughter. When the demand of additional dowry could not be fulfilled by the complainant, the accused persons named in the FIR hanged his daughter by killing her on 24-03-2018. 4. Learned counsel for the applicants submits that in the FIR, the complainant/opposite party no.2 has neither made any specific allegation of making additional demand of dowry against the applicants nor has made any specific allegation of causing cruelty to the deceased by the applicants. After lodging of the FIR, inquest of the deceased was conducted by the police. At the time of inquest, the opposite party no.2-complainant had not made any such allegation against the applicants. Thereafter the post mortem of the deceased was conducted. As per the post mortem report of the deceased no other ante mortem injuries were found on the body of the deceased except ligature mark and cause of deceased was asphyxia due to ante mortem injury. 5. Thereafter the post mortem of the deceased was conducted. As per the post mortem report of the deceased no other ante mortem injuries were found on the body of the deceased except ligature mark and cause of deceased was asphyxia due to ante mortem injury. 5. Learned counsel for the applicants further submits that the investigating officer during the course of investigation found that the applicants were living separately from the deceased and her husband since 2014 whereas the alleged incident occurred on 24.03.2018. In this regard, investigating officer annexed the copy of Bahmi Batwara of the applicants from the other accused persons and even recorded the statements of the witnesses of said Bahmi Batwara namely Rajesh, Jaan Mohammad, Manoj Shukla, Bhallu and Mahboob. It was further argued by the learned counsel for the applicants that on the basis of said Bahmi Batwara, investigating officer dropped the names of the applicants who are Jeth and Jethani from the chargesheet and filed the chargesheet against other accused persons. The Investigating Officer while investigating the case found that the applicants were named on the basis of wrong facts in the alleged FIR. 6. Learned counsel for the applicants further submits that the opposite party no.2 who is complainant, has not filed any protest petition against the applicants when their names were exonerated by the investigating officer from the chargesheet even though there was any application moved on behalf of opposite party no.2-complainant under section 173 (1) for further investigation if he was not satisfied with the investigation to the present investigating officer. 7. Learned counsel for the applicants further submits that P.W.1 (father of the deceased) and P.W.2 (mother of the deceased) in their statements recorded before the learned trial court took the name of the applicants with mala fide intention to implicate them falsely while at the time of conducting inquest of the dead body of the deceased they had not made any allegation against the applicants and the applicants were living separately from the deceased on the date of alleged incident, as evident from the extract of Bahmi Batwara and the statements of the witnesses of Bahmi Batawara. Hence, there was no role of the applicants in the commission of alleged offence. Thus the applicants have falsely been implicated in the present case. 8. Learned counsel for the applicants further submits that opposite party no. Hence, there was no role of the applicants in the commission of alleged offence. Thus the applicants have falsely been implicated in the present case. 8. Learned counsel for the applicants further submits that opposite party no. 2 complainant had moved an application under section 319 Cr.P.C. whereupon the trial court without considering the evidence available on record, in a cursory manner and without application of mind passed the impugned order dated 1.9.2022 summoning the applicants to face trial. Aggrieved by the impugned order dated 1.9.2022 the present application has been filed. 9. In support of his contentions, the learned counsel for the applicants has placed reliance on paragraphs 105 and 106 of the Constitution of Bench Judgment of the Hon'ble Apex Court in the case Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 . "105. Power under Section 319 Cr.P.C 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 un-rebutted, 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 Cr.P.C to form any opinion as to the guilt of the accused." 10. Learned counsel for the applicants further submits that the above Constitution Bench judgment was duly considered by the Hon'ble Apex Court in the case of Labhuji Amratji Thakor & others v. The State of Gujarat and another,2019 AIR (SC) 734 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 un-rebutted, 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." 11. Learned counsel for the applicants 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 chargesheet 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 chargesheet 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." 12. Learned counsel for the applicants 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." 12. Learned counsel for the applicants 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." 13. Per contra, learned AGA for the State submitted that applicants were rightly summoned by the court below and there is no illegality in the impugned order. The applicants were involved in the alleged crime and the complainant/opposite party no. Per contra, learned AGA for the State submitted that applicants were rightly summoned by the court below and there is no illegality in the impugned order. The applicants were involved in the alleged crime and the complainant/opposite party no. 2 in his statement recorded under section 161 Cr.P.C. and also before trial court has taken the name of the applicants. Thus the impugned order dated 1.9.2022 passed by the court below is right and just and there is no illegality therein. 14. The matter requires consideration on fact and law both. 15. Learned AGA is granted four weeks' time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter. 16. List this case on 16th May, 2023. 17. Till the next date of listing, the effect and operation of the impugned order dated 01-09-2022 passed by the learned 1st Additional Session Judge, Hardoi in Session Trial No. 244 of 2018, State v. Salman and others, arising out of case crime no. 103 of 2018 under sections 498-A, 304-B IPC & ¾ D.P. Act Police Station Baghauli, District Hardoi, whereby the application No. 33B under section 319 Cr.P.C. for summoning the applicants as accused has been allowed, shall remain stayed in respect of the applicants.