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2024 DIGILAW 321 (ALL)

Raju Patel v. State of U. P.

2024-01-31

SURENDRA SINGH I

body2024
JUDGMENT : SURENDRA SINGH-I, J. 1. Heard Sri Dr. C.P. Upadhyay, Advocate assisted by Sri Santosh Kumar Mishra, learned counsel for the revisionist and Sri Alok Sharma, learned A.G.A.-I for the State. 2. This criminal revision has been filed challenging the impugned judgment and order dated 19.05.2023 passed by Additional Sessions Judge/ Fast Track Court No. 1, Maharajganj in S.T. No. 48 of 2017 (State vs. Vishambhar Patel and Others) arising out of Case Crime No. 672 of 2016 u/s 304 r/w 34, 506 I.P.C. Police Station-Kotwali, District- Maharajganj. 3. By the impugned order, the trial Court has allowed the application u/s 319 Cr.P.C. filed by opposite party no. 2/informant, Smt. Heera Devi and summoned revisionist/accused, Raju Patel for trial u/s 304 r/w 34, 506 I.P.C. 4. The prosecution case, in brief, is that informant, Smt. Heera Devi w/o late Gyanesh Yadav had submitted a written report on 10.12.2016 at 23.50 hours in Police Station- Kotwali, District- Maharajganj to the effect that she is original resident of village- Kashmariya, Police Station- Chowk, District-Maharajganj. On 10.12.2016, Vishambhar Patel s/o Bansidhar Patel of her village took her husband to Jhunjhunpur crossing. At about 8 p.m., her neighbour, namely, Durgesh Yadav received a call on his mobile from his co-villager Ganesh that some persons have assaulted and injured her husband. The informant along with co-villagers reached Jhunjhunpur crossing. There when she met P.W.2 Vijay Kumar Jaiswal of her village, then he informed her that accused, Vishambhar Patel, Santosh Patel, Raju Patel, Vimlesh and Bhunwar Patel assaulted and caused injury to her husband, and thereafter, they fled away from the place of occurrence. When she reached at the place of occurance along with co-villagers, she found that her husband was lying there groaning with pain. The villagers accompanying her called upon an ambulance 108 and carried her husband to District Hospital where after examination, the doctor declared that her husband had died. 5. It has been submitted by learned counsel for the revisionist that the trial Court has passed the impugned order without considering the evidence on record. It has next been submitted that the trial Court has passed the impugned order only on the basis of evidence of P.W.1 Smt. Heera Devi. 5. It has been submitted by learned counsel for the revisionist that the trial Court has passed the impugned order without considering the evidence on record. It has next been submitted that the trial Court has passed the impugned order only on the basis of evidence of P.W.1 Smt. Heera Devi. The prosecution has examined P.W.1 Smt. Heera Devi, P.W.2 Vijay Kumar Jaiswal, P.W.3 Subhash Yadav and P.W.4 Durgesh Yadav out of which only P.W.2-Vijay Kumar Jaiswal is said to be an eye-witness and other witnesses have deposed that they came to know about the incident as told by P.W.2 Vijay Kumar Jaiswal. There is contradiction in the statement of witnesses with regard to weapon of offence used by the accused persons as well as who informed the informant about the occurrence, in which her husband received fatal injuries. It has also been submitted that in the First Information Report, it is mentioned that Ganesh Yadav informed the informant, Smt. Heera Devi about the incident whereas in her statement, she has deposed that Rajesh Yadav informed her about the occurrence in which her husband, Gyanesh was fatally assaulted. It has also been submitted that P.W.2 Vijay Kumar Jaiswal has stated that when he tried to save the injured/ deceased Gyanesh Yadav, accused also assaulted him but P.W.2 Vijay Kumar Jaiswal has not been medically examined and no injury report has been submitted. It has further been submitted that P.W.3 Subhash Yadav has not mentioned who informed him about the incident. P.W.4 Durgesh Yadav has stated that both Ganesh Yadav and P.W.2 Vijay Kumar Jaiswal informed him about the occurrence. Therefore, there is contradiction in the statement of witnesses regarding how they came to know about the incident. 6. Per contra, learned A.G.A. has opposed the criminal revision and has submitted that the trial court after considering the evidence on record as well as law laid down by the Hon’ble Supreme Court regarding summoning of persons u/s 319 Cr.P.C. who have not been named in the charge-sheet, has rightly summoned the revisionist for trial. It has also been submitted that the name of the revisionist was mentioned in the First Information Report and sufficient evidence was obtained during investigation against him but the Investigating Officer illegally dropped his name from the charge-sheet. 7. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the entire record. 8. It has also been submitted that the name of the revisionist was mentioned in the First Information Report and sufficient evidence was obtained during investigation against him but the Investigating Officer illegally dropped his name from the charge-sheet. 7. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the entire record. 8. Before examining the merits of the present case, the ambit, scope and power of the Sessions Court under Sections 397 as well as 319 Cr.P.C. should be discussed and ascertained. 9. The Hon’ble Apex Court in Amit Kapoor vs. Ramesh Chander and Another, (2012) 9 SCC 460 in paragraph nos.12 and 13 of its judgment has narrated the scope of revision by the High Court u/s 397 Cr.P.C. which is as follows: “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.” 10. In paragraph nos. 17 and 19 of the aforesaid judgment, the Hon’ble Apex Court has narrated that before framing a charge, what documents should be considered by the trial court. It has also provided about the extent of evidence required for framing of a charge. In paragraph no. 20 of the aforesaid judgment, the Apex Court has compared the power and extent of jurisdiction of the High Court u/s 397 Cr.P.C. and Section 482 Cr.P.C. which is given hereunder: “20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice”, the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.” 11. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.” 11. The Hon’ble Apex Court in Para 117.3 and 117.4 in the case of Hardeep Singh vs. State of Punjab, (2014) 3 SCC 92 has explained the meaning of word ‘evidence’ as used under Section 319 Cr.P.C. The relevant paragraphs of the judgment reads as under: “117.3. In view of the above position the word “evidence” in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Question (ii) - Whether the word “evidence” used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? Answer 117.4. Considering the fact that under Section 319CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.” 12. The Hon’ble Apex Court in Para 117.5 of the case of Hardeep Singh (supra) has also explained the nature of satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused. The relevant paragraph of the judgment reads as under: “117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319CrPC would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.” 13. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.” 13. 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 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. 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.” 14. In S. Mohammad Ispahani vs. Yogendra Chandak, (2017) 16 SCC 226 , this Court has observed and held as under: “35. 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.” 14. In S. Mohammad Ispahani vs. 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.” 15. In the case of Rajesh vs. 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. 16. The Hon’ble Apex Court in the case of Yashodhan Singh and Others vs. State of Uttar Pradesh and Another, (2023) 9 SCC 108 has explained the law purported by the Hon’ble Apex Court in the case of Hardeep Singh (supra) regarding the evidence required the satisfaction of the Court for summoning a person under Section 319 Cr.P.C. The paragraph Nos. The Hon’ble Apex Court in the case of Yashodhan Singh and Others vs. State of Uttar Pradesh and Another, (2023) 9 SCC 108 has explained the law purported by the Hon’ble Apex Court in the case of Hardeep Singh (supra) regarding the evidence required the satisfaction of the Court for summoning a person under Section 319 Cr.P.C. The paragraph Nos. 22.6, 22.7 and 22.8 which are relevant for the purpose are reproduced hereunder: “22.6. It was also observed by this Court in Hardeep Singh vs. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86 that apart from evidence in the strict legal sense recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. Holding that the expression “evidence” must be given a broad meaning, it was observed that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. Such material would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have been suppressed or had escaped the notice of the court. Therefore, any material brought before the court even prior to the trial can be read within the meaning of the expression “evidence” for the purpose of Section 319CrPC. While considering the evidence that emanates during the trial, it was observed by this Court that evidence recorded by way of examination-in-chief and which is untested by cross-examination is nevertheless evidence which can be considered by the court for the exercise of power under Section 319CrPC so long as, it would appear to the court that some other person who is not facing the trial, may also have been involved in the offence. 22.7. Further, Section 319CrPC also uses the words “such person could be tried”, which means not to have a mini-trial at the stage of Section 319CrPC by having examination and cross-examination and thereafter coming to a prima facie conclusion on the overt act of such person sought to be added. 22.7. Further, Section 319CrPC also uses the words “such person could be tried”, which means not to have a mini-trial at the stage of Section 319CrPC by having examination and cross-examination and thereafter coming to a prima facie conclusion on the overt act of such person sought to be added. Such a mini-trial will affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all. As under Section 319(4) Cr.P.C. such a person has the right to cross-examine the prosecution witnesses and examine the defence witnesses and advance his arguments. It was further observed that the power under Section 319CrPC can be exercised even after completion of examination-in-chief and the court does not have to wait till the said evidence is tested on cross-examination, for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other persons, not facing the trial in the offence. 22.8. 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. Therefore, such satisfaction is sine qua non for exercise of power under Section 319CrPC. Ultimately, the exercise of power is for the trial of such persons summoned together with the accused already on trial and not for conviction with the accused. Therefore, at that stage, the court need not form any definite opinion as to the guilt of the accused.” 17. In light of the law laid down by the Hon’ble Apex Court in the above mentioned judgments regarding the ambit and scope of criminal revision under Section 397 Cr.P.C. requirement of evidence for summoning the accused under Section 319 Cr.P.C. and facts and circumstances of the present case and evidence available on the trial Court record is being examined. The First Information Report related to Case Crime No. 672 of 2016, under Sections 147 and 304 I.P.C. was lodged by the informant, namely, Heera Devi w/o Gyanesh Yadav (deceased) on 10.12.2016. In her written report, she has narrated that on 10.12.2016 in the night, the accused, Vishambar Patel, who is resident of her village, took her husband Gyanesh Yadav to Jhunjhunpur crossing. In her written report, she has narrated that on 10.12.2016 in the night, the accused, Vishambar Patel, who is resident of her village, took her husband Gyanesh Yadav to Jhunjhunpur crossing. At about 8 p.m., Ganesh Yadav informed on the mobile of her neighbour Durgesh Yadav that some persons have assaulted and injured her husband, Gyanesh Yadav. On the information given by Durgesh Yadav, informant along with co-villagers reached Jhunjhunpur crossing, where P.W.2-Vijay Kumar Jaiswal informed her that revisionist-Raju Patel and four other named accused persons have beaten and assaulted her husband and thereafter, they fled away from the place of occurrence. When she reached there along with co-villagers, she found that her husband was lying there groaning with pain. P.W.1-Heera Devi has given similar statement before trial Court regarding her husband, leaving her house with co-accused, Vishambar Patel. Her neighbour- Durgesh Yadav informed her about the incident. P.W.2 Vijay Kumar Jaiswal also informed the informant about the name of revisionist along with four other accused persons involved in the alleged crime of assault on her husband. P.W.1-Heera Devi has also narrated in her deposition that P.W.3 Subhash Yadav and Rajesh Yadav informed about the complicity of the accused persons in the assault her husband. P.W.1-Heera Devi is consistent in corroborating the facts given by her in the FIR. On the basis of her written report that when she reached the place of occurrence, P.W.2 Vijay Kumar Jaiswal informed her about the accused persons, who had participated in the aforesaid crime in question. P.W.2 -Vijay Kumar Jaiswal also deposed in his evidence that he saw the participation of revisionist and other co-accused persons in the assault of informant’s husband. P.W.3 Subhash Yadav and P.W.4 Durgesh Yadav have also deposed in their evidence that when they reached at the place of occurrence, they saw the injured, who was lying there groaning with pain. They have also deposed that P.W.2 Vijay Kumar Jaiswal informed them the name of revisionist and four other accused persons, who had participated in the assault on the deceased Gyanesh Yadav. 18. Taking into the consideration of the deposition of P.W.1, P.W.2, P.W.3 and P.W.4 and in the light of law laid down by the Hon’ble Apex Court in the aforesaid decisions, there is prima facie evidence to summon the revisionist, namely, Raju Patel for trial under Sections 304/34 and 506 I.P.C. 19. 18. Taking into the consideration of the deposition of P.W.1, P.W.2, P.W.3 and P.W.4 and in the light of law laid down by the Hon’ble Apex Court in the aforesaid decisions, there is prima facie evidence to summon the revisionist, namely, Raju Patel for trial under Sections 304/34 and 506 I.P.C. 19. From the above discussions, it can be concluded that the Additional Sessions Judge/Fast Track Court No. 1, Maharajganj has after being satisfied with the evidence on record summoned the accused as per provision under Section 319 Cr.P.C. The trial Court has not committed any illegality, irregularity or impropriety in passing the impugned order. Therefore, I do not find any merit in the revision which is liable to be dismissed and is hereby dismissed accordingly. 20. It is hereby made clear that I have not expressed any opinion on the merits of the case and the veracity or deposition of the witnesses. The trial Court is free to give its own findings and may decide the case in question, in accordance with law, without being prejudiced by any observation made in this order.