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2024 DIGILAW 2466 (ALL)

Sandeep Kumar v. State of U. P.

2024-12-05

MANOJ BAJAJ

body2024
JUDGMENT : Manoj Bajaj, J. 1. Appellants have filed this appeal under Section 14-A(1) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to challenge the impugned order dated 28.07.2023 passed by the Additional Session Judge, Court No.15, Allahabad in Sessions Trial No. 164 of 2020, arising out of Case Crime No. 550 of 2020, under Sections 147, 148, 452, 323, 504, 506, 354-Kha I.P.C. and Section 3(2)(5)Ka Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Jhunsi, District Allahabad, whereby in exercise of power under Section 319 Cr.P.C., the appellants have been summoned as additional accused. 2. Briefly, the facts leading to the appeal are that on the basis of written complaint by Dharma Devi-opposite party no.2, the first information report bearing Case Crime No. 550 of 2020, (Annexure No.1), was registered, wherein it is alleged that complainant's father-in-law, namely, Bhawani Deen under the influence of liquor in a deceitful manner was made to execute a sale deed in favour of Sunil Kumar son of Bhalli Lal Yadav, and the ancestral property was transferred in favour of the purchaser without the consent of the others, which also included the ancestral house. For the last two years, Sunil Kumar had been harassing complainant and her family members, who every day is forcing them to vacate the property. About six months back, Sunil Kumar along with his accomplices had given beatings to the complainant and her husband, and in this regard, an information was given to the police, but no case was registered. For the last one week, Sunil Kumar along with his associates and family members has been intimidating the complainant. Today, on 14.09.2020 at around 7.00 a.m., Sunil Kumar along with Rajendra Prasad Yadav, Vijay Kumar and Kapil Yadav came to her house and dragged the complainant out on the road, and it turned her partially unclothed, and the assailants also committed obscenity, whereupon complainant’s husband and son came to rescue her, but the accused persons abused and threatened them all. When the neighbours arrived at the spot, the assailants fled away. On these broad allegations, the first information report was registered against four named and one unknown persons for the alleged commission of offences punishable under Sections 147, 148, 425,323, 504, 506 354 (Kha) IPC and Section 3(2)(va) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. On these broad allegations, the first information report was registered against four named and one unknown persons for the alleged commission of offences punishable under Sections 147, 148, 425,323, 504, 506 354 (Kha) IPC and Section 3(2)(va) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. After registration of the case, the investigation was carried out and upon conclusion of the same charge sheet under Section 173(2) Cr.P.C. was filed on 11.11.2020 only against Sunil Kumar, whereas the appellants were declared innocent. 4. Thereafter, the trial court analyzed the final report and proceeded to frame charges against the sole accused Sunil Kumar. During trial the complainant/opposite party no.2 was examined as P.W.-1 on 10.05.2023, and thereafter an application under Section 319 Cr.P.C. dated 25.07.2023 was moved by complainant for summoning appellants as additional accused, which has been allowed vide impugned order dated 28.07.2023. Hence this appeal. 5. Learned counsel for the appellants has argued that the allegations made in the FIR itself would show that the complainant has set up a false case to question the action of her father-in-law, who had disposed of his immovable property in favour of co-accused Sunil Kumar. The appellants were unnecessarily dragged in the said case through the FIR, and during investigation no incriminating evidence was collected by the Investigating Officer to show the involvement of the appellants, therefore, they were declared innocent in the final charge sheet under Section 173(2) Cr.P.C. dated 11.11.2020. 6. Mr. Rajiv Lochan Shukla, learned counsel for the appellants has argued that the evidence on record is not enough for exercise of power under Section 319 Cr.P.C., but the trial court has erroneously exercised the jurisdiction under Section 319 Cr.P.C. while summoning the appellants as additional accused. Mr. Shukla, learned counsel for the appellants relies upon the decision of Hon’ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab and others , (2014) 3 SCC 92 and urged that the principles and guidelines laid down by Hon’ble Supreme Court in the context of exercise of power under Section 319 Cr.P.C. have not been strictly followed by the trial court, while passing the impugned order. He submits that the impugned order is not based upon proper appreciation of material on record, therefore, the interference is warranted by this Court in exercise of appellate powers. He submits that the impugned order is not based upon proper appreciation of material on record, therefore, the interference is warranted by this Court in exercise of appellate powers. He prays that the impugned order be set aside and the application under Section 319 Cr.P.C. filed by prosecution be dismissed, in the interest of justice. 7. The prayer is opposed by Mr. Tandon, learned counsel for the opposite party no.2, who has argued that the complainant had been maintaining consistent stand from the very beginning, who had specifically named the appellants as an accused in the FIR also. He further submits that the case of the complainant is also supported by other witnesses, who are independent, but the Investigating Officer had wrongly exonerated the appellants, and filed charge sheet only against co-accused Sunil Kumar. Learned counsel for the opposite party no.2 relies upon the decision of Hon’ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab and others , (2014) 3 SCC 92 to contend that the expression "evidence" as appearing in Section 319 Cr.P.C. is to be construed liberally and at this stage the statement of complainant would alone be enough for exercising the power under Section 319 Cr.P.C., if, it suggests involvement of other accused persons in alleged commission of crime. According to Mr. Tandon, learned counsel for the complainant, the trial court has carefully analyzed the prosecution case and the evidence adduced during trial, therefore, the impugned order dated 28.07.2023 does not call for any interference. He prays that the appeal be dismissed. 8. Learned State Counsel has also argued on the similar lines, who while opposing the prayer submitted that in evidence P.W.-1/complainant has specifically named the appellants in commission of the alleged crime, and the trial court has justifiably exercised the jurisdiction under Section 319 Cr.P.C. to summon the appellants as additional accused. According to the learned State counsel, the impugned order is validly passed, who further prays that the appeal be dismissed. 9. Learned counsel for the parties have been heard and with their assistance the case file has been perused carefully. 10. According to the learned State counsel, the impugned order is validly passed, who further prays that the appeal be dismissed. 9. Learned counsel for the parties have been heard and with their assistance the case file has been perused carefully. 10. Time and again, the Hon’ble Supreme Court as well as various High Courts have consistently examined the scope of Section 319 Cr.P.C., which empowers the trial court to summon any other person as an accused in a pending trial, where the evidence recorded during trial suggests the involvement of such person in commission of the alleged crime. The said provision reads as under:- “ 319. Power to proceed against other persons appearing to be guilty of offence.— (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (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 . 11. A reading of the above would show that this Section vests extraordinary power with the trial court to summon any other person as an accused to face trial along with other accused, who are before the trial court, but invariably the Hon’ble Supreme Court as well as different High Courts have held that this discretionary power should be exercised sparingly and with circumspection. At this juncture, when the trial has already commenced, the degree of satisfaction required to be recorded by the trial court while summoning any other person as additional accused, should be more than the standards required at the stage of framing of charges. In other words, the evidence on record must strongly suggest more than a "prima facie" case against such a person and his involvement in commission of the crime. Reference in this regard can be made to the decision of larger Bench of Hon’ble Supreme Court rendered in Hardeep Singh Vs. State of Punjab and others , (2014) 3 SCC 92 , wherein the Question (iv), was answered in the following manner:- “ Question (iv)- What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C.? Ans.-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. 12. Now, while reverting back to the facts and circumstances of the case in hand, this Court finds that no doubt the complainant/opposite party no.2 (P.W.-1) had indeed mentioned the names of the appellants in the first information report, but after completion of investigation the said stand of the complainant was disbelieved by the Investigating Officer for lack of support/corroboration. During the course of hearing, the stand of Mr. Shukla, learned counsel for the appellants that ten independent witnesses who allegedly came to rescue P.W.-1 never mentioned the presence of the appellants in their respective statements under Section 161 Cr.P.C., has not been refuted by Mr. Tandon, learned counsel for the complainant. Though, according to Mr. Tandon, learned counsel the deposition of P.W.-1 recorded during the trial proceedings is enough for summoning the appellants as an additional accused. 13. But, this Court does not find any force in the arguments advanced by Mr. Tandon, learned counsel for the complainant. Though, according to Mr. Tandon, learned counsel the deposition of P.W.-1 recorded during the trial proceedings is enough for summoning the appellants as an additional accused. 13. But, this Court does not find any force in the arguments advanced by Mr. Tandon, learned counsel for the complainant as the deposition of complainant before the court cannot be construed as a new piece of evidence, which emerged for the first time and was not previously available when either the first information report was registered or the investigation was carried out. The expression “Evidence” as contained in Section 319 Cr.P.C. would not include a vague statement, and essentially the deposition of prosecution witness has to be tested in its substance. 14. The decision in Hardeep Singh (supra) was again followed by Hon’ble Supreme Court in Labhuji Amratji Thakor and others Vs. State of Gujarat and another , (2019) 12 SCC 644 , wherein it was held that the process under Section 319 Cr.P.C. cannot be issued by the trial court in a casual manner, as in view of the decision in Hardeep Singh’s case (supra), the trial court is required to analyze the substance of the evidence recorded during trial. The relevant observations are reproduced below: “ 13. The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that the Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C.The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e. "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 ." 15. During the course of hearing, it has also not been disputed by Mr. During the course of hearing, it has also not been disputed by Mr. Tandon, learned counsel for the complainant that after submission of final report, whereby the appellants were declared innocent, the complainant did not take any steps, as neither any complaint nor protest petition was filed by the complainant. A perusal of the impugned order dated 28.07.2023 reveals that the trial court has not at all considered the facts and circumstances of the case, and has also ignored the law on the subject while exercising extraordinary jurisdiction to summon the appellants. The impugned order does not refer to any new evidence, its nature, much less any valid reasoning for exercise of this discretionary power. Thus, the impugned order dated 28.07.2023 suffers from grave illegality and warrants interference by this Court. 16. Resultantly, the appeal succeeds and the impugned order dated 28.07.2023 is hereby set-aside. The application filed under Section 319 Cr.P.C. by the prosecution is hereby dismissed.