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2024 DIGILAW 152 (ALL)

Umesh @ Umesh Kumar v. State Of U. P.

2024-01-12

SURENDRA SINGH-I

body2024
JUDGMENT : Heard Sri Vijay Kumar Pandey, learned counsel for the revisionist, Sri Muktesh Kumar Singh, learned counsel for the opposite party nos. 2 to 5 and learned A.G.A. for the State. 2. This criminal revision has been filed against the order dated 07.12.2022 passed by Additional Sessions Judge-IVth, Jaunpur in Sessions Trial No. 320 of 2012, State Vs. Indrasen & others. 3. By the impugned order, the learned Additional Sessions Judge has rejected 43- [k application filed by the revisionist u/s 319 Cr.P.C. for summoning opposite party nos. 2 to 5 as additional accused for trial. 4. It has been submitted by learned counsel for the revisionists that without considering the evidence on record, the trial court has rejected the revisionist’s application u/s 319 Cr.P.C. It has also been submitted that on the basis of complaint dated 09.08.2010, N.C.R. No. 120 of 2010 u/s 323, 504 I.P.C. was lodged against accused, Indrasen s/o Ram Yash, Rana Pratap s/o Ram Yash, Praveen alias Mulayam s/o Indrasen and Anil Kumar s/o Rajendra. The revisionist/informant on 16.09.2010 submitted application u/s 155 (2) Cr.P.C. in which he mentioned the name of four other accused, namely, Akhand Yadav, Chandrabhan and Nar Singh, sons of Ram Yash, Vikas son of Indrasen, Arun alias Pintu Yadav son of Chandrabhan but after investigation, the Investigating Officer submitted charge-sheet only against four accused against whom N.C.R. was registered in the police station. The Investigating Officer illegally did not submit charge-sheet against the opposite party nos. 2 to 5 whose names were mentioned in the informant’s application u/s 155 (2) Cr.P.C. It has also been submitted that the informant P.W.1 Umesh Kumar in his evidence dated 16.02.2017 and P.W.2 Ram Swarath in his evidence dated 01.09.2021 has mentioned that opposite party nos. 2 to 5 participated in the commission of the offence. 5. Per contra, learned counsel for the opposite party nos. 2 to 5 has submitted that the trial court after considering the evidence on record has rightly rejected the application u/s 319 Cr.P.C. for summoning opposite party nos. 2 to 5 as additional accused in the case. The informant P.W.1 Umesh Kumar has not mentioned name of opposite party nos. 2 to 5 in his written report on the basis of which aforesaid N.C.R. was lodged against the accused, Indrasen, Rana Pratap, Praveen alias Mulayam and Anil Kumar. 2 to 5 as additional accused in the case. The informant P.W.1 Umesh Kumar has not mentioned name of opposite party nos. 2 to 5 in his written report on the basis of which aforesaid N.C.R. was lodged against the accused, Indrasen, Rana Pratap, Praveen alias Mulayam and Anil Kumar. It has also been submitted that after a gap of about 1 month after submitting the written report, the informant P.W.1 Umesh Kumar has falsely named the opposite party nos. 2 to 5 as accused in the offence. It has also been submitted that after a gap of about 7 years, the revisionist/informant in his evidence as P.W.1 has assigned opposite party nos. 2 to 5 the role in the commission of offence, which is an afterthought and cannot be relied upon. It has also been submitted that P.W.1 Umesh Kumar and P.W.2 Ram Swarath both are accused in the criminal case lodged by the opposite party nos. 2 to 5 against the revisionist and his companions. Therefore, as a counterblast and to pressurize the opposite party nos. 2 to 5, the revisionist has falsely named opposite party nos. 2 to 5 as accused in his application u/s 155 (2) Cr.P.C. which he had submitted after a gap of more than 37 days of the occurrence. Since no evidence was available against opposite party nos. 2 to 5, the Investigating Officer did not file charge-sheet against them. 6. The revisionist/informant, Umesh Kumar had not mentioned in his written report dated 09.08.2010 complicity of opposite party nos. 2 to 5 in the crime. He has for the first time mentioned their names as accused in his application u/s 155 (2) Cr.P.C. submitted in the Court on 16.09.2010. 7. Thus, after a gap of 37 days from the date of occurrence, the revisionist/informant P.W.1 Umesh Kumar in his statement recorded on 16.09.2017 and P.W.2 Ram Swarath in his statement recorded on 01.09.2021 had implicated opposite party nos. 2 to 5 as being involved in the commission of offence. The revisionist/informant, Umesh Kumar in his application u/s 155 (2) Cr.P.C. has assigned general role to opposite party nos. 2 to 5 in the commission of the offence. Similarly, P.W.1 Umesh Kumar and P.W.2 Ram Swarath have only assigned general role to the aforesaid accused in the commission of offence. The revisionist/informant, Umesh Kumar in his application u/s 155 (2) Cr.P.C. has assigned general role to opposite party nos. 2 to 5 in the commission of the offence. Similarly, P.W.1 Umesh Kumar and P.W.2 Ram Swarath have only assigned general role to the aforesaid accused in the commission of offence. Admittedly, on the basis of the first information report lodged on the side of opposite party nos. 2 to 5, charge-sheet u/s 323, 325, 504, 506, 308 I.P.C. arising out of Case Crime No. 742 of 2010 has been filed against revisionist/informant P.W.1 Umesh Kumar, P.W.2 Ram Swarath and their companions. 8. The trial court in its impugned order has stated that since informant, Umesh Kumar in his written report dated 09.08.2010 had not implicated opposite party nos. 2 to 5 in the commission of offence and their names surfaced on 16.09.2010 only for the first time in the informant’s application u/s 155 (2) Cr.P.C. submitted in the Magistrate’s court and since P.W.1 Umesh Kumar and P.W.2 Ram Swarath who are accused in the first information report lodged on behalf of opposite party nos. 2 to 5, have assigned only general role to the persons mentioned in the application u/s 319 Cr.P.C., there is not sufficient evidence for summoning them u/s 319 Cr.P.C. for trial. 9. 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 Vs. State of Punjab and others, (2014) 3 SCC 92 and paras 105 and 106 which are relevant for the purpose is 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. 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. 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." 10. In S. Mohammad Ispahani Vs. Yogendra Chandak (2017) 16 SCC 226 , the Hon’ble Apex Court has observed 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." 11. In the case of Rajesh Vs. 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." 11. In the case of Rajesh Vs. State of Haryana (2019) 6 SCC 368 , after considering the observations made by the Apex Court in Hardeep Singh (supra) referred to hereinabove, the Apex 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. 12. 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. 13. Considering the law propounded by the Hon’ble Apex Court in the aforesaid cases, facts and circumstances of the case and the evidence available on record, this Court finds no illegality, irregularity or impropriety in the impugned order passed by the trial court. 14. There is no merit in the criminal revision. It is liable to be dismissed. 15. The criminal revision is dismissed, accordingly. 16. Let a copy of this order be sent to the concerned trial court for necessary action.