High Court
Case Details
Neutral Citation No. - 2024:AHC:148733 Court No. - 76 Case :- APPLICATION U/S 482 No. - 28581 of 2024 Applicant :- Smt Praveen Opposite Party :- State Of Up And 3 Others Counsel for Applicant :- Firoz Haider Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application u/s 482 Cr.P.C. has been filed for quashing of the order dated 28.03.2024, passed by the learned Additional District & Sessions Judge, F.T.C. No. 2, Muzaffar Nagar in S.T.
Facts
No. 806 of 2022, arising out of case crime no. 54 of 2022, under Sections 498-A, 304-B, 201 IPC and Section 3/4 of D.P. Act, P.S. Nai Mandi, District Muzaffar Nagar, whereby the application filed by applicant/informant under Section 319 Cr.P.C. for summoning of opposite party nos. 2 to 4 has been rejected.
Legal Reasoning
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. 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." 11. The above view was followed in Brijendra Singh as under:- "13. In order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: .... However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge- sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity." 8. Keeping in view the above-cited law, in the instant matter it appears from record that the first information report was lodged against Mir Hasan, Noor Hasan, Mehandi Hasan, Shakila, Liyaqat and Smt. Shabana. After investigation, charge-sheet was submitted only against Mir Hasan, Shakila and Liyaqat, who are husband, mother-in-law and father-in-law of deceased. The opposite party nos. 2 to 4, namely, Noor Hasan, Mehandi Hasan and Smt. Shabana were exonerated. Opposite party no. 2 Noor Hasan is brother-in-law (Jeth), opposite party no. 3 Mehandi Hasan is brother-in-law (Devar) and opposite party no. 4 Smt. Shabana is sister-in-law (Jethani) of the deceased. Merely because opposite party nos. 2 to 4 were residing in the same premises, it cannot be a ground for summoning them as accused. No specific allegation has been made against opposite party nos. 2, 3 and 4. Being brothers- in-law and sister-in-law of deceased, they were not going to be benefited by fulfillment of any dowry demand. The trial court has considered entire facts and evidence in correct perspective and rejected the application under Section 319 Cr.P.C. by a reasoned order dated 28.03.2024. Considering aforesaid position of law and
Arguments
3. It has been argued by learned counsel for the applicant that the impugned order is against facts and law and thus, liable to be set aside. Applicant is informant of the case and her daughter was married with co-accused Mir Hasan and that on 14.02.2022 her husband and his family members have committed her murder. The first information report was lodged against accused persons, namely, Mir Hasan, Shakila, Liyaqat, Noor Hasan, Mehandi Hasan and Smt. Shabana. It was submitted that opposite party nos. 2 to 4, namely, Noor Hasan, Mehandi Hasan and Smt. Shabana were exonerated by the police during investigation in an arbitrary manner and charge-sheet was submitted only against co-accused Mir Hasan, Liyaqat and Shakila, who are husband, father-in-law and mother-in-law of deceased. During trial of the said accused persons, informant has moved an application under Section 319 Cr.P.C. for summoning of opposite party nos. 2 to 4 as accused but the said application has been rejected in an arbitrary manner. It has been submitted that all the accused persons were residing together and at the time of incident there were only two rooms in the house of accused persons and thus, all the accused persons, including opposite party nos. 2 to 4, were involved in the incident. After causing death of deceased, the accused persons have cremated her and postmortem was conducted by taking out her body from graveyard. Learned counsel has referred statements of witnesses and submitted that a case is made out against opposite party nos. 2 to 4 to face trial in the aforesaid case. 4. Learned AGA has submitted that there is evidence that all the accused persons, including opposite party nos. 2 to 4, were living together and that a case for summoning of opposite party nos. 2 to 4 is made out. 5. I have considered the rival submissions and perused the record. 6. By the impugned order, the application filed by informant under Section 319 Cr.P.C. has been rejected. Before considering the matter on merits, it would be apt to refer the provisions of Section 319 Cr.P.C. which read 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. ...... (4) Where the Court proceeds against any person under sub- section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, 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."By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused." 7. In case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another, (2019) 7 SCC 806, the Hon'ble Apex Court has considered several earlier judgements and it was held as under:- "9. The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, "the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are "it appears from the evidence "....." any person "....." has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court." 10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly which reads as under:- "105. Power under Section 319 CrPC 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.
Decision
facts of the matter, it cannot be said that the impugned order is suffering from any such material illegality or perversity so as to require any interference by this Court. The present application under Section 482 Cr.P.C. lacks merit and thus liable to be dismissed. 9. The application under Section 482 Cr.P.C. is hereby dismissed. Order Date :- 11.9.2024 Anand