High Court
Case Details
Reserved on- 18.04.2023 Delivered on- 03.05.2023 Court No. - 93 Case :- CRIMINAL APPEAL No. - 9811 of 2022
Legal Reasoning
Appellant :- Smt.Basanti Devi Respondent :- State Of U.P. And 15 Others Counsel for Appellant :- Virendra Singh Parmar,Hariom Singh Counsel for Respondent :- G.A.,Rudra Kant Mishra Hon'ble Mrs. Jyotsna Sharma,J. 1. Heard Sri Virendra Singh Parmar and Sri Hariom Singh, learned counsels for the appellant, Sri Rudra Kant Mishra, learned counsel for the respondents, Sri O.P. Mishra, learned A.G.A. for the State and perused the material on record. 2. The appellant- Basanti Devi has challenged the order dated 08.08.2022 passed in Special Sessions Trial No.75 of 2018 (State vs. Jai Raj and Others) by which the learned trial court dismissed the application moved under section 319 Cr.P.C. 3. The relevant facts are as below:- The appellant/first informant- Basanti Devi filed an F.I.R. with regard to the incidents, which according to her took place on 20.06.2018 at about 10:00 pm, thereafter on 23.06.2018 time unknown and on the date of filing F.I.R. as well. It is alleged in the F.I.R. that at about 10:00 pm on 20.06.2018, somebody knocked on her door; her daughter Purnima opened the door and found Rahul son of Jai Raj with his companions standing there; they forcibly entered in the house, dragged her daughter out; when the first informant tried to save her daughter, they dragged her out too by catching hold of her tuft of hair and physically assaulted her; she sustained injuries on her knees, fingers and other parts of the body. When her husband and son rushed to save them, they too were assaulted and injuries were caused to them; they abused all the family members using derogatory words relating to their caste. Some of them (as named in the F.I.R.) assaulted them and rest were exhorting them to attack. Two days thereafter, i.e., on 23.06.2018, Kundan Giri and Chandan Giri came to her house and threatened that one of them shall be surely eliminated. Munni wife of Joginder and Manju wife of Sanjay also abused and threatened them on the date of filing the F.I.R. On the basis of this F.I.R., case was registered against 17 persons named therein and investigated upon. Charge-sheet came to be filed only against two persons, i.e., Jai Raj and Savita Devi and not against rest of the accused persons. Two of the prosecution witnesses Basanti Devi (P.W.1) and Lallan Ram (P.W.2) were examined, thereafter an application for summoning rest of the accused persons under section 319 Cr.P.C. came to be moved; however the same has been dismissed by the order impugned dated 08.08.2022. Now the first informant is before this Court in appeal. 4. It is contended on behalf of the appellant that application under section 319 Cr.P.C. has been dismissed against the weight of evidence available on record; the prosecution witnesses (P.W.1 and P.W.2) have deposed against respondent nos.2 to 16 and have named all of them; there is clear cut evidence disclosing participation of the respondent nos.2 to 16 in the offence. The learned trial court has ignored the evidence and dismissed the application and has passed an arbitrary order, hence the same is liable to be set-aside. 5. On behalf of the respondents, these facts are stressed that at the stage of the investigation, sufficient evidence against them was not found and therefore the Investigating Officer did not file any charge-sheet against them. The appellant filed an F.I.R. against 17 persons alleging that they physically assaulted her and caused injuries. Had this been the case, the injured would have sustained a number of injuries. It is pointed out by the counsel for the respondents that the appellant has not submitted copy of any injury report. It is further contended that the trial court is not expected to proceed mechanically and to summon the accused persons without having sufficient material against them. 6. The Supreme Court in Hardeep Singh vs. State of Punjab decided on 10.01.2014, while throwing light on the purpose behind the introduction of section 319 Cr.P.C. held that the entire effort should be not to allow the real perpetrator of the offence to get away unpunished; there is certain aim to achieve behind incorporation of provisions of section- 319 Cr.P.C. The Court said that the courts are sole repository of justice and a duty is cast upon it to uphold rule of law but this is not to mean that this discretionary power may be exercised just because a witness has said something against proposed accused persons. The Court said that the power under section 319 Cr.P.C. is extraordinary in nature and should be exercised sparingly and only in those cases where the circumstances of the case so warrant and where strong and cogent evidence is available. Such power should be exercised not in casual and cavalier manner. 7. In my view, there must be material of substantial nature so as to invoke confidence of the Court; there must be sufficient grounds acting as prompting factors which drives the Court to exercise those powers. Definitely, the evidence need not be of such nature as may be required to declare them guilty but must be of such merit which cannot be ignored at that stage. The adequacy and quality of evidence can surely be seen and assessed in the manner that it must stand on a footing better than what is required for framing of charge and may be lesser than what is required for pronouncing a judgement of conviction. In other words, stronger evidence than mere probability of complicity must be there, before the Court decides to exercise this pleanary power. There must be closer scrutiny of evidence to find out the role and participation in the crime. If 2 of 3
Decision
the answer is better than mere probability, then Court may decide to jump into action. The words “satisfaction” shall be meaningless if the Court decides to depend upon empty words, destitute of substance. The cardinal rule is satisfaction of a Judge as has been held by the Hon’ble Supreme Court in Hardeep Singh’s case. The relevant part of the impugned order is as below:- "उपरो्ሹ वि(cid:8)(cid:8)ेचना से मेरे ्ቛारा सा्ቌी पी०डब्लू०-1 (cid:8)ावि(cid:23)नी मुक(cid:23)मा ए(cid:8)ं पी०डब्लू०-2 ल्ቤन राम के साቌኚय को इस ्ቚकार का उत्कृ ्ቖ साቌኚय नहीं पाया जा रहा है विक उनके साቌኚय के आधार पर धारा-319 (cid:23)ण्ड ्ቚवि+या संविहता के सम्बन्ध में माननीय उ्ሴतम न्यायालय ्ቛारा ्ቚा(cid:8)धाविनत विबन्(cid:23)ुओं को वि(cid:8)्ቫस्त विकया जा सके । अतः उपयु 8्ሹ समस्त वि(cid:8)(cid:8)ेचना के आधार पर अभि:योजन के ्ቛारा ्ቚस्तुत ्ቚा्ቕ8ना प्ቔ अन्त्ቇ8त धारा-319 (cid:23)ण्ड ्ቚवि+या संविहता वि(cid:23)नांविकत 06.06.2022 विनरस्त विकये जाने योग्य है।" 9. I went through the statements given by the witnesses, namely, Smt. Basanti Devi as P.W.1, Lallan Ram as P.W.2 and also through the impugned order. The learned trial court, after consideration of oral evidence given by the witnesses, has given an opinion that those statements do not invoke the confidence of the court; the learned trial court found inherent improbabilities in the statements; the opinion given by the trial court, in my view, is neither perverse nor against the weight of evidence; one has to simply go through the answers given by P.W.1 on the questions asked by defence; the on oath statements appear to be devoid of substance; the evidence does not appear to be reliable; I cannot but agree with the conclusion drawn by the learned trial court; in nutshell, it can be said that there are not sufficient grounds so as to satisfy the Court for exercising its powers under section- 319 Cr.P.C.; the application has been dismissed giving cogent reasons for the same. 10. I do not find any good ground to interfere in the impugned order. Hence, this criminal appeal is hereby dismissed. Order Date :- 03.05.2023 Saif Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad 3 of 3