High Court
Case Details
A.F.R. Court No. - 89 Case :- CRIMINAL REVISION No. - 4576 of 2022 Revisionist :- Satish And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Shashi Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Syed Aftab Husain Rizvi,J.
Legal Reasoning
Heard learned counsel for the revisionists, learned A.G.A. for the State and perused the record. This criminal revision is directed against the order dated 23.9.2022 passed by learned Additional District and Sessions Judge, Court No. 4, Bulandshahar in S.T. No. 737 of 2021 (State Vs. Sharafat Ali and others) Case Crime No. 295 of 2020, under section 307, 323 IPC, P.S. Jahangirabad, District Bulandshahar. By the impugned order learned trial court exercising the powers under section 319 Cr.P.C. on the application of prosecution has summoned the revisionists- accused to face trial with other co-accused. The O.P. No. 2 lodged an FIR that on 27.6.2020 at about 2:30 p.m. Sharafat and Satish suddenly opened fire on her mother Nagina. Thereafter, Sabir, Satish, Basheer, Satendra and Dharmveer assaulted her with lathi, danda, fists and kicks. The co-villagers and the husband of Nagina picked Nagina from the spot and admitted her in Bulandshahar hospital. She was referred to Meerut Medical College due to her serious condition. After investigation the I.O. submitted charge-sheet only against Sharafat and Sabir. During course of trial three witnesses complainant Shahana, P.W. 1, injured Nagina, P.W. 2 and Raju, husband of Nagina, P.W. 3 were examined. At this stage an application under section 319 Cr.P.C. was moved by the prosecution to summon the remaining accused named in the FIR. The learned trial court after hearing both the parties by the impugned order has summoned the revisionists-accused. Learned counsel for the revisionists contended that the I.O. has recorded the statement of complainant, injured, husband of injured and other witnesses. He also obtained CDR to ascertain the location of the accused Dharmveer, Satish and Sharafat and their location was not found on the spot. He also recorded the statement of Lekhpal Dev Kumar who stated that the wife of revisionist no. 1 moved an application to the District Magistrate with regard to possession of the disputed land and upon the spot the Revenue Inspector and police reached there and after measurement the possession was handed over to revisionist no. 1. It is also contended that medical examination of the injured Nagina was conducted at C.H.C. Jahangirabad. Four injuries were noted and X-ray was advised. It was conducted by the S.B.B.P. Hospital and no radiological bony abnormality was found. As no foreign body was found it can be safely referred to that injured has not suffered any fire arm injury. During course of trial three witnesses were examined by the prosecution. On the basis of it the court below on an application moved under section 319 Cr.P.C. summoned the revisionists. While passing the summoning order the trial court apart from the evidence recorded before the trial court also considered the evidence collected during course of investigation which is not permissible as held in catena of decisions. Only material collected by trial court during inquiry or trial can be used to arraign the additional accused. It is further contended that the Hon'ble Apex Court reiterated time and again that the power under section 319 Cr.P.C. is a discretionary and extra ordinary power which should be exercised sparingly. The crucial test 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 in likelihood the newly added accused would be conducted as has been held in case of Hardeep Singh Vs. State of Punjab and others. The power under section 319 Cr.P.C. cannot be exercised in a casual and in a cavalier manner, it should be exercised only when strong and cogent evidence occurs against a person and further to add a person as additional accused under section 319 Cr.P.C. stronger evidence is required then near probability of complicity of that person. This is the test that has to be applied as laid down in various case laws. While in present case if the summoning order is tested upon the touch stone then it appears that no satisfaction has been recorded which is required. It is further contended that it is also settled law that the material evidence which has been laid before the court has been taken into consideration and not the statement recorded under section 161 Cr.P.C. could be utilized while exercising power under section 319 Cr.P.C. as has been done in the present case, as such the same is liable to be set-aside. The learned trial court summoned the revisionists in mechanical manner and failed to consider the ratio of law as laid down in the case laws cited in the impugned order in its true perspective. It is further contended that Hon'ble Apex Court in latest decision in case of Shiv Prakash Mishra Vs. State of U.P. and another reported in 2019 (109) ACC 632 (SC) was pleased to observe and the relevant paragraph 9 is quoted herein below:- 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 Vs. State of Rajasthan: (SCC p. 55, para 9). "9......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." Lastly it is contended that prosecution story has not been corroborated as there are material contradictions even in the statement recorded during trial and further medical evidence does not corroborates the prosecution story. The impugned summoning order is not sustainable being illegal. Learned A.G.A. contended that revisionists are named in the FIR and there are specific allegations against them that they participated in the crime and assaulted the victim. One person has suffered injury. Her medico legal report is part of record. The complainant, injured and other witnesses have corroborated the prosecution story. Three witnesses have been examined during course of trial. They also corroborated the evidence of trial. The I.O. has wrongly exonerated the revisionists- accused. There is sufficient material on record against revisionists-accused. The learned trial court after appreciating the entire material on record has found that there is sufficient material and has passed the summoning order. There is no illegality in the impugned summoning order. It is undisputed that the revisionists-accused are named in the FIR. There are clear and specific allegations that they took part in the assault. The mother of the complainant has suffered injuries in the incident. Her medico legal report is part of record. In her statement under section 161 Cr.P.C. the complainant and injured both have fully corroborated the version of the FIR. Before the trial court they have been examined and in that statement they have also again reiterated the allegations of the FIR and fully corroborated the prosecution story. Nagina, P.W. 2 is an injured witness and it is settled law that testimony of injured witness can not be discarded unless there are cogent reasons. The I.O. merely on the basis of C.D.R. has recorded the conclusion that revisionists were not present at the place of occurrence at the time of incident. While the injured witness as well as complainant have fully corroborated their presence at the spot and that they have took part in the incident and assaulted the injured causing her injuries. The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. The relevant paras 98 and 99 are as follows: "98. Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary 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
99. Thus, we hold that though only a prima face 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. In Section 319, Cr.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 319, Cr.P.C, to form any opinion as to the guilt of the accused." The facts of this case are distinguished from the case law of Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC page 706 because in that case the I.O. has collected the plethora evidence about the alibi of the accused while in this case there is no such kind of evidence which can be used to discredit the statement of injured witness. The learned trial court has narrated the entire facts and allegations made in the application, the evidence available on record and after being satisfied that there is sufficient material on record has passed the impugned summoning order. The impugned summoning order is detailed and reasoned one. There is no perversity or illegality in the impugned summoning order. The revision is devoid of merit and is hereby dismissed. Order Date :- 13.1.2023 Masarrat Digitally signed by :- MASARRAT HUSAIN High Court of Judicature at Allahabad