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Allahabad High Court · body

2024 DIGILAW 990 (ALL)

Vijay Shankar Verma v. State Of U. P.

2024-04-08

SURENDRA SINGH I

body2024
JUDGMENT : Surendra Singh-I, J. 1. By means of instant revision filed under Section 397/401 Cr.P.C., the revisionist has assailed the impugned order dated 11.5.2022 passed by the Ist Additional Sessions Judge Basti in Sessions Trial No. 35 of 2015 (State Vs. Ram Suresh and others)) under Section 306 IPC P.S. Paikoliya, District Basti. By the impugned order, the trial court has rejected the revisionist’s application 52 (Kha) filed under Section 319 Cr.P.C. for summoning the opposite party no.2 to 4 as an accused for trial. 2. It is has been averred by learned counsel for the revisionist that the trial court has passed the impugned order against the weight of evidence on record and the without application of judicial mind, the order is illegal, improper and bad in the eye of law and it is liable to be quashed by this Court. 3. It has been submitted that the revisionist’s sister Chandrakanti was subjected to dowry death for which, revisionist’s father Mani Ram Verma lodged the First Information Report against Ramsuresh husband of her daughter, her mother-in-law Mewati Devi and opposite party nos. 2 Gopal (devar), opposite party no.3 Umesh (devar) and opposite party no.4 Chotelal (father) under Sections- 498-A, 304-B and Section 3/4 of Dowry Prohibition Act. The Investigating Officer illegally expunged the names of the opposite party nos. 2 to 4 and filed a charge-sheet only against husband of the deceased Ramsuresh and her mother-in-law Mewati Devi under Section 306 IPC. During trial P.W.- 1 Mani Ram Verma and P.W.-2 Harish Chandra have deposed that apart from husband and mother-in-law the opposite party nos. 2 to 4 were also involved in the commission of murder of the revisionist’s sister, therefore, revisionist moved an application under Section 319 Cr.P.C. against the opposite party nos. 2 to 4 for facing trial along with husband and mother-in-law of the deceased, thereafter, revisionist father Maniram Verma filed an application under Section 319 Cr.P.C. which was rejected vide its impugned order dated 11.5.2022 by the trial court without an application of judicial mind. 4. Per contra, learned counsel for opposite party no. 2 to 4 had opposed the criminal revision and submitted that the informant had named them in the FIR merely on the ground that they were relatives of deceased husband. 4. Per contra, learned counsel for opposite party no. 2 to 4 had opposed the criminal revision and submitted that the informant had named them in the FIR merely on the ground that they were relatives of deceased husband. No specific role were assigned against them in the FIR, during investigation, no evidence was found against them, the Investigating Officer has rightly exonerated their names and did not filed charge-sheet against them. 5. I have heard learned counsel for the revisionist, learned counsel for the opposite party nos. 2 to 4 and learned AGA for the State as well as perused the material available on record. 6. Before considering the legality of the impugned order dated 11.5.2022 passed under Section 319 Cr.P.C. the statutory provisions under Section 319 Cr.P.C. and law relating to it as propounded by the Hon’ble Apex Court to be considered which is quoted 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 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. 7. 7. Section 319 Cr.P.C., the provisions of Section 319 empowers to court to proceed against any person not shown or mentioned as accused in charge-sheet if it appears from the evidence that such persons committed an offence for which he could be tried together with the main accused against whom he should have been charge sheeted and against whom trial is taken place. 8. 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 judgement 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. 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. 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 CrPC.” 9. In paragraph nos.17 and 19 of the aforesaid judgement, 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 judgement, 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.” 10. 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 judgement reads as under:- “117.3. 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 judgement reads as under:- “117.3. In view of the above position the word “evidence” in Section 319 CrPC 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) CrPC 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 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC 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.” 11. 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 judgement reads as under:- “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. 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.” 12. 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. 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.” 12. 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." 13. 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." 13. 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." 14. 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. 15. 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 [Hardeep Singh v. 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 CrPC. 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 319 CrPC. 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 319 CrPC 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 319 CrPC also uses the words “such person could be tried”, which means not to have a mini-trial at the stage of Section 319 CrPC 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 319 CrPC also uses the words “such person could be tried”, which means not to have a mini-trial at the stage of Section 319 CrPC 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) CrPC, 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 319 CrPC 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 319 CrPC. 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.” 16. The learned trial court has taken into consideration the statement under Section 161 Cr.P.C. of independent witnesses. The fact that P.W.-1 Maniram Verma father of the deceased and P.W.-2 Harishchandra who is deceased uncle were not eye witness in the incident, P.W.-1 Maniram Verma did not visit the place of occurrence but he visited the hospital where her daughter was under going treatment for her burn injuries and died thereafter. Hence, later on succumbed to the burn injuries on 1.9.2014, the trial court has given following other reasons for rejecting application filed under Section 319 Cr.P.C. P.W.-1 and P.W.2 were not eye witnesses in the incident. P.W.-1 Maniram Verma reached district Hospital after receiving information of his son-in-law Ram Suresh. Hence, later on succumbed to the burn injuries on 1.9.2014, the trial court has given following other reasons for rejecting application filed under Section 319 Cr.P.C. P.W.-1 and P.W.2 were not eye witnesses in the incident. P.W.-1 Maniram Verma reached district Hospital after receiving information of his son-in-law Ram Suresh. P.W.-2 Harischandra got the information of burning and death of the deceased Chandrakanti from P.W.-1 Maniram Verma. P.Ws 1 and 2 have stated that earlier they have not made any complaint regarding harassment of Chandkanti by her in-laws and O.P. No.2 to 4, the P.Ws. 1 and 2 have not assigned any specific role to the opposite party no. 2 to 4. 17. The incident had taken place after more than seven years of marriage of the deceased, the Investigating officer have collected the evidence of aforesaid witnesses under Section 161 Cr.P.C. to the effect that on the date of occasion, the Opposite party no.2 to 4 had not visited the place of occurrence only deceased’s husband mother-in-law were present on the place of occurrence. The aforesaid witnesses have given the statement under Section 161 Cr.P.C. to the effect that deceased was under depression for not having a son, she had quarrel with her mother-in-law. Her mother-in-law scolded her, thereafter, she sprayed kerosene oil on herself and lit it with fire. 18. The opposite party No. 2 Gopal and opposite party No. 3 Umesh are devar and opposite party No. 4 Chotelal is the father-in-law of the deceased Chandrakanti. No specific allegations of involvement in the alleged crime is imputes against them. 19. The apex court held in the case of Kahkashan Kausar @ Sonam vs The State of Bihar and Others, 2022 (6) SCC 5991, has held that in such cases relatives of husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime is made out. 20. The statutory provisions under Section 319 Cr.P.C. as has been explained by the judgments of Hon’ble Apex Court requires stronger quality of evidence then merely prima facie case against the accused. The quality of evidence should be more stronger than prima facie case which is required for convicting the accused of any offence. The power provided in Section 319 Cr.P.C., it is extraordinary discretionary power which should be used sparingly and with due circumspection . 21. The quality of evidence should be more stronger than prima facie case which is required for convicting the accused of any offence. The power provided in Section 319 Cr.P.C., it is extraordinary discretionary power which should be used sparingly and with due circumspection . 21. Considering the impugned order in light of evidence on record, the statutory provisions as interpreted by the Hon’ble Apex Court, I do not find any illegality or infirmity in the impugned order passed by the trial court . 22. The Criminal Revision is dismissed accordingly.