High Court
Case Details
Court No. - 80 Case :- CRIMINAL APPEAL No. - 3255 of 2022
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 319Cr.P.C. In Section 319Cr.P.C. 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 319Cr.P.C. to form any opinion as to the guilt of the accused. The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, is one which is more than prima facie case which is applied at the time of framing of charges. Object of engrafting Section 319 Cr.P.C. is not allow a person who deserves to be tried to go scot-free. Considering the facts and circumstances of the present case and contradictory the evidence of the PW-1 and PW-2, there is no strong and cogent evidence present for probable conviction. More than a prima facie case does not appear through the evidence against the appellant. On the basis of above discussion, this Court is of the view that there is no illegality, material irregularity in the impugned order and does not require interference by this Court and thus, impugned order is not liable to be set aside on the grounds mentioned in this appeal. This criminal appeal is liable to be dismissed. This criminal appeal has no force and is dismissed. Order Date :- 20.9.2022 Sharad/- Digitally signed by SHARAD KUMAR SRIVASTAVA Date: 2022.09.26 16:58:02 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Appellant :- Smt. Amita Gihar Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Vishnu Shankar Mishra Counsel for Respondent :- G.A.,Arimardan Yadav,Jadu Nandan Yadav Hon'ble Om Prakash Tripathi,J. Heard learned counsel for appellant, learned counsel for opposite party no. 2 and learned A.G.A. for State. This criminal appeal has been preferred against order dated 30.03.2022 passed by Special Judge SC/ST Act, District- Firozabad in Special Sessions Trial No. 559/2019 in Crime No. 779/2018, under Sections 323, 324, 504, 506, 427 I.P.C. and 3(1)(Da) (Dha) of SC/ST Act, P.S.- Shikohabad, District- Firozabad, by which application under Section 319 Cr.P.C. moved by appellant, has been rejected by trial court. The main ground of learned counsel for appellant is that impugned order is perverse and without weight of material of evidence available on record. As a matter of fact, nothing has happened as alleged in the F.I.R. lodged by the appellant against the opposite party nos. 2 to 4 along with co-accused Gurvinder Singh @ Tinku. Trial court has not applied judicial mind, has not considered the material facts and circumstances before rejecting the application of appellant under Section 319 Cr.P.C. statement of injured cannot be lightly discarded. Learned counsel for opposite party and learned A.G.A. submitted that impugned order is perfect in the eye of law. Case has been registered on the basis of application of under Section 156(3) Cr.P.C. About one month after medical examination application under Section 156(3) Cr.P.C. has been moved with ulterior motive. Appellant is working as Headmistress and was also Chairman, Nagar Palika on behalf of B.J.P. There is a civil dispute of the shop. Informant PW-1 has also not stated the name of all the accused entire case has been lodged against the accused with intention to evict him from the shop. From the perusal of statement of PW-1, it appears that name of Sushveer Kumar, Gurvinder Singh and Sandeep have been shown for committing 'maar-peet' with 'lathi-danda' with her husband. When she reached and intervened to save her husband then Gurvinder Singh caused knife injury on her hand. Later on in the cross examination informant has stated that 'maar-peet' took place among Gurvinder, Mandeep. Thus, there is improvement in the statement of the PW-1. PW-2 had stated the name of Mandeep Singh, Gurvinder Singh, Sandeep for causing him injury by 'lathi-danda' and fist. Sushveer Singh has received six contusion and abrasion and injury no. 2 of Amita is incised wound, muscle deep on right side of forearm. Trial court has opined that there is contradiction in the statement of PW-1 and PW-2 with regard to name of the accused and it is also stated that on the basis of contradictory evidence conviction of the other accused is not probable and not good ground to summon the appellants to face trial with the main accused. Learned counsel for appellant placed reliance on Manjeet Singh Vs. State of Haryana and others in Criminal Appeal No. 875/2021 decided on 24.08.2021 which relates to Sections 302, 307, 148, 149, 341 I.P.C. In Hardeep Singh vs. State of UP (2014) 3SCC 92 Apex Court has laid down guiding principles relating to Section 319 Cr.P.C. in paragraph nos.105 and 106. 105. Power under Section 319Cr.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.