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2024 DIGILAW 512 (UTT)

Devendra Singh v. State of Uttarakhand

2024-07-26

RAVINDRA MAITHANI

body2024
JUDGMENT : RAVINDRA MAITHANI, J. 1. Since both these revisions arise from the same Sessions Trial, they are heard together and are being decided by this common judgment. 2. The challenge in these revisions are made to the Judgment and Order dated 17.02.2021, passed in Sessions Trial No. 217 of 2019, State vs. Vikram Samra and others, by the court of Additional Sessions Judge, Khatima, District Udham Singh Nagar (“the case”). By the impugned order, the revisionists have been summoned under Section 319 of the Code of Criminal Procedure, 1973 (“the Code”) for answering the accusation under Sections 147, 148, 149, 452, 307 IPC read with Sections 149 and 506 IPC. 3. Heard learned counsel for the parties and perused the record. 4. The case is based on an FIR No. 203 of 2019, dated 14.06.2019, Police Station Sitarganj, District Udham Singh Nagar, lodged by Santra Devi W/o PW1 Sunil Yadav. 5. According to the FIR, on 13.06.2019, at about 03:00 PM, 7–8 persons suddenly entered into the godown of the informant in a motorcycle and in a car. They had masked their faces. They attacked PW1 Sunil Yadav by sharp edged weapons, sword, etc. Out of these 7–8 persons, two had country made pistol/pistol. PW1 Sunil Yadav sustained serious injuries. Due to the alarm that was raised at the time of incident, the informant reached to save her husband, many other persons also gathered there. Thereafter, the FIR records that the assailants managed to escape. One of them, Jodha Singh, according to the FIR, was identified by the informant. In the FIR, suspicion has been raised on the revisionists Gurpreet Singh alias Mantu and Vipin Mittal that due to professional rivalry they might have caused the attack on PW1 Sunil Yadav. 6. In this matter, after investigation charge-sheet was submitted against four persons. Charge-sheet was not submitted against the revisionists. According to the charge-sheet, Jodha Singh’s implication was found false and the persons, who were suspected in the FIR, their involvement were also not found in the incident. This charge-sheet is the basis of the case. 7. In the case, on 02.03.2020, statement of PW1 Sunil Yadav, the victim was recorded. Charge-sheet was not submitted against the revisionists. According to the charge-sheet, Jodha Singh’s implication was found false and the persons, who were suspected in the FIR, their involvement were also not found in the incident. This charge-sheet is the basis of the case. 7. In the case, on 02.03.2020, statement of PW1 Sunil Yadav, the victim was recorded. It is, thereafter, an application under Section 319 of the Code was filed by the prosecution with the averments that as per the statement of PW1 Sunil Yadav, the revisionists were also involved in the attack on him on 13.06.2019. After hearing the parties, by the impugned order, the revisionists have been summoned, as stated hereinabove. Aggrieved by it, the instant revision has been filed. 8. Learned Senior Counsel appearing the revisionist Vipin Mittal would submit that the revisionist Vipin Mittal was at his shop at the relevant time; he was not at all involved in the incident. Learned Senior Counsel would also submit as follows: (i) The revisionist was not named in the FIR as one of the assailants. (ii) The revisionist was not named as an assailant either by the informant or by the PW1 Sunil Yadav, the victim in their statements under Section 161 of the Code. (iii) The victim had taken `35 Lacs for business purposes from the revisionist Vipin Mittal and in return thereof a cheque was given, which when presented, was dishonoured. Thereafter, the revisionist Vipin Mittal had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against PW1 Sunil Yadav, the victim. Thereafter, it is stated that the name of the revisionist was recorded in the FIR as suspect, who might have been involved in the attack on PW1 Sunil Yadav. (iv) Naming the revisionist by PW1 Sunil Yadav as suspect in the FIR is based on enmity; on this ground, PW1 Sunil Yadav gives the statement. 9. Learned counsel appearing for the revisionists Devendra Singh, Ranjeet Singh and Gurpreet Singh alias Mantu would submit that they were not named in the FIR as assailants. Learned counsel would submit that the incident allegedly took place on 13.06.2019 at 03:00 PM, of which, an FIR was lodged almost after 24 hours on 14.06.2019 at 02:30 PM. But, it is argued that the revisionists are not named as assailants in the FIR. Learned counsel would submit that the incident allegedly took place on 13.06.2019 at 03:00 PM, of which, an FIR was lodged almost after 24 hours on 14.06.2019 at 02:30 PM. But, it is argued that the revisionists are not named as assailants in the FIR. He would submit that, had the revisionists been identified they would have been named in the FIR. 10. Learned counsel appearing for the revisionists Devendra Singh, Ranjeet Singh and Gurpreet Singh alias Mantu would also submit that even the statement of PW1 Sunil Yadav does not make out any prima facie case against the revisionists because in his statement he has stated that he had regained consciousness in the hospital on the same date; he and his wife, the informant had immense opportunity to lodge an FIR against the revisionists by naming them, but it has not been done. 11. On the other hand, learned counsel for the informant, would submit that the impugned order is in accordance with law. It does not warrant any interference. He would submit that in the FIR, suspicion has been raised against the revisionists Gurpreet Singh alias Mantu and Vipin Mittal as the persons, who caused the attack. Learned counsel would submit that two vehicles were also involved in the offence. The Investigating Officer did not record the statement of PW1 Sunil Yadav, as told to him. Similarly, it is argued that the statements of the victim and the informant were also not recorded, as stated by them to the Investigating Officer. He would also submit that the PW1 Sunil Yadav during investigation had revealed that the revisionists Gurpreet Singh alias Mantu, Vipin Mittal and Ranjeet Singh were inimical to him due to professional rivalry. 12. Learned counsel for the informant would also submit that merely based on the statement of charge-sheeted accused Vikram Samer, charge-sheet has been filed and even weapon of offence was not recovered by the Investigating Officer. It is argued that at this stage of disposal of application under Section 319 of the Code, a meticulous examination of the evidence or appreciation is not required to be done. Merely, prima facie case is to be seen which it is argued is made out in the instant case. 13. It is argued that at this stage of disposal of application under Section 319 of the Code, a meticulous examination of the evidence or appreciation is not required to be done. Merely, prima facie case is to be seen which it is argued is made out in the instant case. 13. In support of his contention, learned counsel for the informant has placed reliance in the principle of law, as laid down in the cased of: (1) Manjeet Singh Vs. State of Haryana and others, 2021 SCC Online SC 632 (2) Sandeep Kumar Vs. State of Haryana and another, 2023 SCC Online SC 888 (3) Chetram and another Vs. Ranjeet and others, 2024 SCC Online SC 592 14. In the cases of Chetram, Sandeep Kumar and Manjeet Singh (Supra), FIR was filed against named person, but some of them were not charge-sheeted. When evidence was recorded, the named charge-sheeted persons’ involvement was also revealed in the court. Thereafter, on an application under Section 319 of the Code, they were summoned. Under those circumstances, principle of law has been laid down. In the case of Sandeep Kumar (Supra), the Hon’ble Supreme Court inter alia observed that, “The merits of the evidence has to be appreciated only during the trial, by cross examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319, though this is precisely what the High Court has done in the present case. Moreover, the High Court did not appreciate the important fact that the charges being faced by the accused were under Sections 458, 460, 323, 285, 302, 148 and 149 of IPC. Thus, one of the charges being Section 149, which is of being a member of an unlawful assembly, for attracting the offence under Section 149 IPC, one simply has to be a part of an unlawful assembly.” 15. In fact, in the case of Sandeep Kumar (Supra), the Hon’ble Supreme Court has referred to the judgment in the case of Manjeet Singh (Supra). In the case of Manjeet Singh (Supra), the Hon’ble Supreme Court inter alia observed that “At the stage of exercising the powers under Section 319 CrPC, the court is not required to appreciate and/or enter on the merits of the allegations of the case. In the case of Manjeet Singh (Supra), the Hon’ble Supreme Court inter alia observed that “At the stage of exercising the powers under Section 319 CrPC, the court is not required to appreciate and/or enter on the merits of the allegations of the case. The High Court has lost sight of the fact that the allegations against all the accused persons right from the very beginning were for the offences under Sections 302, 307, 341, 148 & 149 IPC.” 16. In the case of Chetram (Supra), the above principles of law have been followed. 17. Section 319 of the Code reads as follows: “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.” 18. A bare reading of the above provision makes it clear that some person, who is not accused may be proceeded against with if, it appears from the evidence that such person not being the accused has committed any offence for which he could be tried together with the accused. The words “it appears” are very important. What could be the standard of this opinion. 19. The words “it appears” are very important. What could be the standard of this opinion. 19. It is settled law that at the stage of considering an application under Section 319 of the Code, meticulous examination of evidence or in other words appreciation of evidence, in the deeper detail is always to be avoided. But, still evidence has to be seen at each stage of a criminal trial. At the time of initial summoning the level of satisfaction that is required to summon an accused is “prima facie case.” At the stage of framing of charge, the level of satisfaction is little higher than the initial level of satisfaction i.e. required for summoning an accused. Needless to say, at the time of ascertaining the guilt, the level of satisfaction that is require is to prove beyond reasonable doubt. 20. The provisions of Section 319 of the Code have been interpreted by the Hon’ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 . The Hon’ble Supreme Court in that case formulated various questions so as to define the scope of Section 319 of the Code. One of the questions i.e. question no. 4 is as follows:- “Question (iv) - What is the degree of satisfaction required for invoking the power under Section 319 CrPC?” 21. This has been answered at two places; in the body of judgment at Para 106 the Hon’ble Supreme Court observed as follows: “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 CrPC. 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 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.” There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.” 22. A bare reading of above paragraph reveals that 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. While summing of the conclusion, this has further been answered by the Hon’ble Supreme Court in paragraph 117.5 of the judgment, which reads as follows: “117.5. Though under Section 319(4)(b) CrPC 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 319 CrPC would be the same as for framing a charge” 23. In view of settled law, the level of satisfaction i.e. required to summon a person at the stage of 319 of the Code should be more than the prima facie case and it should be same as for framing a charge. 24. The revisionists have also been summoned to answer the accusation under Section 307 IPC. In the Sessions Trial charges are framed at the stage of 228 of the Code, which reads as follows: “228. Framing of charge. 24. The revisionists have also been summoned to answer the accusation under Section 307 IPC. In the Sessions Trial charges are framed at the stage of 228 of the Code, which reads as follows: “228. Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which: (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report. (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 25. As stated, hereinbefore, the level of satisfaction for initial summoning of an accused is prima facie case, but at the time of framing of a charge the court should record a finding that it is of the opinion that there is a ground for presuming that the accused has committed an offence. It is lesser in decree than to prove beyond reasonable doubt i.e. required to ascertain the guilt or otherwise of an accused. 26. In the instant case, according to the FIR, 7-8 persons suddenly entered into the godown of the informant and attacked PW1 Sunil Yadav, the victim, who happens to be the husband of the informant. What is important to note is that according to the FIR, the assailants have masked their faces. The informant writes in the FIR that she had been able to identify one of the assailants Jodha Singh. The FIR raises doubt or the involvement of the revisionists Gurpreet Singh alias Mantu and Vipin Mittal because according to the FIR, they had professional rivalry with the informant. 27. The informant writes in the FIR that she had been able to identify one of the assailants Jodha Singh. The FIR raises doubt or the involvement of the revisionists Gurpreet Singh alias Mantu and Vipin Mittal because according to the FIR, they had professional rivalry with the informant. 27. In his statement under Section 161 of the Code, PW1 Sunil Yadav has not named any person, who attacked him. He has stated that the assailants had masked their faces by clothes; therefore, he could not identify them. In answer to the questions put by the Investigating Officer, the PW1 Sunil Yadav had then stated that he had enmity with the revisionists Gurpreet Singh, Vipin Mittal and Ranjeet Singh. 28. Similarly, the informant in her statement given to the Investigating Officer has stated that the assailants had masked their faces with clothes and they attacked her husband mercilessly. She named one Jodha Singh, as one of the assailants. The Investigating Officer put a specific question to the informant, as to whether she could identify Jodha Singh? She said that one of the assailants was looking like Jodha Singh. The Investigating Officer in the charge-sheet records that a suspects involvement was not found in the incident. The revisionists have not been charge-sheeted. This is the backdrop of this instant case. 29. PW1 Sunil Yadav was examined in the court. He described as to what had happened on 13.06.2019. According to him, he had some disputes with the revisionist Vipin Mittal. 30. PW1 Sunil Yadav in his statement in the court tells that the revisionists along with other persons came in his godown and attacked him. He had named everyone of them. 31. The Court is cautious at this stage that evidence is not to be appreciated. But then, prima facie satisfaction has to be recorded and as stated, at the stage of 319 of the Code, the satisfaction should be little higher than the prima facie satisfaction. To that extent the matter has to be looked into. It may not be termed as meticulous appreciation of evidence or scrutiny. In his cross-examination at Para 13 and 15 PW1 Sunil Yadav has categorically stated that he had regained consciousness in the hospital on the same date and there he revealed the names of the assailants to the police. But, he says that he did not reveal them to his wife and doctor. 32. In his cross-examination at Para 13 and 15 PW1 Sunil Yadav has categorically stated that he had regained consciousness in the hospital on the same date and there he revealed the names of the assailants to the police. But, he says that he did not reveal them to his wife and doctor. 32. FIR states that the assailants had masked their faces. This is what the informant and the victim, PW1 Sunil Yadav had told to the Investigating Officers. If the assailants had masked their faces, how could they be identified? If PW1 Sunil Yadav had regained consciousness in the hospital and he knew as to who were the assailants, why he did not disclose it to his wife, who lodged the FIR almost after 24 hours? The statement of PW1 Sunil Yadav does not make out prima facie case against the revisionist. Therefore, this Court is of the view that it is not the case which would warrant summoning of the revisionists under Section 319 of the Code. The court below did commit an error. Accordingly, the impugned judgment and order dated 17.02.2021, passed in the case is bad in the eyes of law. It deserves to be set aside and revisions allowed. 33. The revisions are allowed accordingly. 34. The impugned order is set aside qua the revisionists. 35. Let a copy of this judgment alongwith record be forwarded to the court below for compliance.