Allahabad High Court
Navneesh vs State Of U.P. & Ors. on 16 December, 2011
Bench: Vinay Kumar Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
RESERVED
Case :- CRIMINAL REVISION No. - 2312 of 2010
Petitioner :- Navneesh
Respondent :- State Of U.P. & Ors.
Petitioner Counsel :- V.K. Srivastava,S.K. Srivastava
Respondent Counsel :- Govt. Advocate,Syed Wajid Ali
Hon'ble Vinay Kumar Mathur,J.
The revisionist has filed the instant criminal revision, aggrieved and dissatisfied with the order dated 20.5.2010 passed by Additional Sessions Judge/FTC-2, Saharanpur in S.,T. No. 621 of 2010, State of U.P. Versus Anang Pal and others under Sections 452, 323, 324,325, 506 and 308 IPC, P.S. Nakud, District- Saharanpur whereby the revisionist has been summoned as an accused exercising jurisdiction under Section 319 Cr.P.C.
I have heard learned counsel for the revisionist, learned AGA for the State and leaned counsel representing O.P. No.2 and have also perused the record.
Learned counsel for the revisionist has submitted that the revisionist though was named in the FIR, was not charge-sheeted as no incriminating material against him could be found. Further he was a student and had appeared in examination on the date of the alleged incident, therefore, there was no possibility of his participation in the alleged incident. Learned counsel has further submitted that the statement of Shiv Kumar alone has been recorded who is an interested witness. There is a cross-version of the alleged incident and the persons from the side of the revisionist, have also sustained injuries. The impugned order is completely illegal and manifestly erroneous as the court below has only found a prima facie case to have been made out against the revisionist and has failed to consider as to whether on the basis of the available evidence against the revisionist whether there were sufficient chances for his conviction.
In support of his contention, learned counsel has placed reliance on Sarabjit Singh and another Vs. State of Punjab and another 2009 (66) ACC 32, Lal Suraj alias Suraj Singh and another Vs. State of Jharkhand 2009 (67) ACC 733 and also upon two judgments of Hon'ble Single Judge of
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this Court, in Revision No.5058 of 2010, Seth Pal alias Bhoop Singh Vs. State of U.P. and another dated 22.11.2010 and Rajendra Kumar Vs. State of U.P. And another reported in 2011 (72) ACC 380.
Learned AGA has defended the impugned order.
Learned counsel for O.P. No.2 while defending the impugned order has submitted that the injury reports filed on behalf of the revisionist show that they have also allegedly sustained some injuries, but the same are of no material consequence. Learned counsel has further contended that during the cross-examination of P.W.1, Shiv Kumar has stated that a criminal case under Section 420 IPC has been filed against Anang Pal and his daughter in law and others. This establishes inimical relations between the parties. There is no illegality in the impugned order and the same has been passed after due consideration of all the aspects involved. Learned counsel has relied upon judgment of Har Bhajan Singh and another Vs. State of Punjab and others reported in 2009 (67) ACC 339.
From the perusal of the impugned order, it is clear that the learned court below has examined and analysed evidence available before it from the angle of to satisfying itself that a prima-facie case against the revisionist is made out. It has not considered the aspect as to whether on the basis of available evidence whether there is feasibility of conviction of revisionist or not. In Sarabjit Singh and another Versus State of Punjab and Another the Hon'ble Supreme Court has discussed several judgments of the Apex Court, including Municipal Corporation of Delhi Vs. Ram Krishna Rohtagi (1983) 1 SCC 1, Shashikant Singh Vs. Tarkeshwar Singh (2002) 5 SCC 738, Rakesh Vs. State of Haryana (2001) 6 SCC 248, Ranjit Singh Vs. State of Punjab (1975) 7 SCC 149, Mohd. Shafi Vs. Mohd. Rafiq and another 2007 (58) ACC 254 and has observed that before an additional accused can be summoned for facing trial, the nature of evidence should be such which could make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised. The Apex Court has
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also observed that the courts are required to apply stringent test, one of the tests being whether the evidence on record is such which would reasonably lead to conviction of the persons sought to be summoned. In Lal Suraj alias Suraj Singh Vs. State of Jharkhand, the Hon'ble Supreme Court in addition to referring the principles as propounded in Sarabjit Singh's case (Supra) has also held that sufficiency of material and the fact that he can be tried together with other accused should also be seen. It has also held that the opinion of the Investigating Officer is not the final word.
The Hon'ble Single Judge in Rajendra Kumar Vs. State of U.P. and another and Sethpal Vs. State of U.P. and another has also relied upon the cases of Mohd. Shafi Vs. Mohd. Rafiq and Sarabjit Singh and another Vs. State of Punjab and another and has held that likelihood of conviction of the revisionist ought to have been examined by court below. The judgments of Hon'ble Singh Judge though have no binding effect, have persuasive value.
As regards the case law of Har Bhajan Singh and another and State of Punjab relied upon by the learned counsel for O.P. No.2, I am of view that the case law does not help the opposite party because while in the instant case the learned court below has not taken into account all the aspects while passing the impugned order and has consequently passed the order without due and proper application of its mind whereas in the case relied upon by the learned counsel for O.P. No.2, all materials which were available on record, had been taken into consideration while passing the order rejecting the application under Section 319 Cr.P.C. in that case.
In view of the settled legal position in the matter, I am of view that it was incumbent upon the learned court below while passing the impugned order to have taken into account all the material that was available with it for arriving at conclusion and it ought to have also satisfied itself that for invoking extra ordinary powers of summoning a person as an accused under Section 319 Cr.P.C., it had not only to satisfy itself that a prima facie case is made out but also had to examine the matter from the angle as to whether there was possibility of recording a judgment of conviction against him on the basis of
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available evidence or not.. Since the court below has committed a manifest error by not considering this aspect at all, therefore, its order is not sustainable and deserves to be set aside.
Consequently, the revision is allowed. The order dated 20.5.2010 passed by Additional Sessions Judge/ FTC-2, Saharanpur in ST No. 621 of 2010, State of U.P. Vs. Anang Pal under Sections 452, 323, 324, 325,506 and 308 I.P.C. P.S. Nakud, district- Saharanapur summoning the revisionist as an accused invoking the provision of 319 Cr.P.C. is set aside and the matter is remanded back to the Additional Sessions Judge/FTC-2 Saharanpur for deciding the application under Section 319 Cr.P.C. afresh in the light of the observations made in the body of the judgment.
Dec. 16 , 2011
V.Sri/-
