Smt. Dayawati & Another vs State Of U.P. & Another
2012 Latest Caselaw 3515 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 50
 

 
Case :- CRIMINAL REVISION No. - 2568 of 2012
 

 
Petitioner :- Smt. Dayawati & Another
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Mohit Singh
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Manoj Misra,J.

Heard learned counsel for the revisionists and learned A.G.A. for the State and Sri Dhiraj Srivastava, Advocate for the respondent no.2.

By this revision, the revisionists have challenged the order dated 23.07.2012 passed by the Additional Sessions Judge, court No.4, Ghaziabad in S.T. No.1768 of 2009, whereby, in exercise of power under Section 319 Cr.P.C., the revisionists have been summoned to face trial along with other accused Satish.

The facts, in brief, are that a report was lodged by the opposite party no.2 against Satish son of Ram Niwas, Dayawati (revisionist no.1) and Rajbala (revisionist no.2), which gave rise to Case Crime No.46 of 2009 at P.S. Bahadurganj, District Ghaziabad. However, upon investigation, police laid charge sheet only against Satish. During trial, statement of P.W.1 (Satish-the informant), P.W.2 (Km. Neetu, daughter of informant) and P.W.3 (Smt. Kusum, wife of informant), who were all injured in the incident, were recorded. On the strength of their statements, the court below by its order dated 12.03.2012 summoned Dayawati and Rajbala @ Brijbala in exercise of its power under Section 319 Cr.P.C. Aggrieved by the order dated 12.03.2012, a Criminal Revision No.1125 of 2012 was filed before this Court, which was disposed of with direction to the court below to pass a fresh order, strictly in accordance with law. Pursuant to the direction of this Court, the court below passed a fresh order, after considering the evidence led before it as also various judgments of the Apex Court, thereby holding that there is sufficient evidence on record, in the form of the statement of P.W.1, P.W.2 and P.W.3, to draw satisfaction about the involvement of the revisionists in the crime for which they must be tried together along with the other accused.

Challenging the said, order the present revision has been filed.

The contention of the learned counsel for the revisionists is that the power under Section 319 Cr.P.C. should be exercised only on the strength of the statement made during the course of trial and not by taking note of any statement made during investigation. It has been contended that the court below while exercising its power under Section 319 Cr.P.C. has also taken note of the statements made during the course of the investigation. In this regard, reliance has been placed on a judgment of the Apex Court in the case of Y Saraba Reddy Vs. Puthur Rami Reddy and another reported in (2007) 2 SCC (Cri) 412.

The second submission of the learned counsel for the revisionists is that in the report, the name of the accused has been stated as Rajbala whereas in the statement there is an improvement to disclose the name of the accused as Brijbala alias Rajbala. It has been contended that all these facts go to show that the testimony of the prosecution was not entirely reliable, therefore, the power under Section 319 Cr.P.C. was not to be exercised.

The third contention of the learned counsel for the revisionists is that the court below while exercising its power under Section 319 Cr.P.C. has not specifically recorded a finding that the evidence led before it would reasonably lead to conviction of the persons sought to be added as accused.

Dealing with the first submission of the learned counsel for the revisionists, there is no dispute to the proposition that the term "evidence" as it occurs in sub-section (1) of Section 319 means evidence led in Court. In the instant case the power has been exercised on the strength of the statement of witnesses P.W.1, P.W.2 and P.W.3, who were all examined in Court. However, merely because a reference is made by the Court to some material in the case diary, it cannot be said that the court exercised its power in an irregular manner, when it is apparent that the satisfaction was drawn on the strength of evidence led before it.

With regard to the second submission of the learned counsel for the revisionists that there has been improvement in the testimony of the prosecution with regards to the name of the persons involved in the incident, I am of the view that this aspect of the matter is required to be tested at a later stage.  At the stage of exercise of power under Section 319 Cr.P.C., the testimony is to be taken on its given face value. Accordingly, the second submission also has no force.

As regards the third submission of the learned counsel for the revisionists that the court below, while exercising its power under Section 319 Cr.P.C., ought to have recorded satisfaction that the evidence led before it would reasonably lead to conviction, I am of the view that where the complicity of the person sought to be added as an accused is disclosed from initial stage itself then such satisfaction may, in a suitable case, even be inferred even though not expressed in specific words. In the instant case, the complicity of the persons sought to be added as accused was disclosed from the initial stage itself and their complicity was affirmed during the course of trial, by none other, than the witnesses who were injured in the incident.

Thus, I am of the view that it cannot be said that the evidence if taken at its face value would not reasonably lead to conviction of the persons sought to be added as accused.

The Apex Court in the case of Suman v. State of Rajasthan and another reported in (2010) 1 SCC 250, in paragraph 27 of the judgment, the Apex Court observed as under:-

"27. In view of the settled legal position as above, we hold that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 Cr.P.C. if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. As a corollary, we hold that the process issued against the appellant under Section 319 Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her."

Further in the case of  Ram Pal Singh and others v. State of U.P. and another reported in (2009) 4 SCC 423, in paragraph Nos. 18, 19 and 20 of the judgment, the Apex Court observed as under:-

"18. All that is required by the Court for invoking its powers under Section 319 Cr.P.C.is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.

19. In the instant case, although, the appellants were named in the F.I.R., they were not named as accused in the charge-sheet during the trial. However, P.W.1 in his evidence, has named the appellants as persons who were involved in the incident causing the death of Brijesh Kumar Singh and injuries to Manvender Singh. Despite the above, the trial Court, on two separate occasions, rejected the prayer made by the Respondent No.2 for summoning the appellants herein under Section 319 Cr.P.C. The High Court, after considering the evidence of P.W.1, Kamlesh Singh, thought it necessary for the appellants to be summoned.

20. Although, certain other observations made by the High Court regarding the orders passed by the Trial Court could and should have been avoided, we are also of the view that the High Court had not committed any error in directing that the appellants be summoned to stand trial along with the co-accused, in view of the evidence of P.W.1 during the trial itself."

In the case of  Har Bhajan Singh and  another Vs. State of Punjab and another (2009) 13 SCC 608, the apex court while dealing  with the exercise of power under section 319 Cr.P.C,  in para 9 and 10, observed,  as follows:-

"9. In this case, the deceased made a dying declaration. In the said dying declaration not only Sarabjit Singh but also the appellants herein were named as the persons who were responsible for her death. Correctness of the said dying declaration at this stage is not and cannot be questioned. It may be true that the appellants were not charge-sheeted but it is now well settled, by reason of various decisions of this Court, that only because no charge-sheet has been submitted against certain persons, the same by itself, would not be a sufficient ground for the court at a later stage, namely, upon consideration of the evidence adduced before it by the prosecution to decline to exercise its jurisdiction to add other persons as accused for trying them for offences which appear to it to have been committed by them.

10.   The dying declaration together with statements made by the prosecution witnesses show commission of an offence. Appellants took side of Sarabjit Singh. They not only asked the deceased to marry him but even threatened her as also her parents that in case of refusal, she would be `defamed'. It is not possible, keeping in view the nature of evidence which was made available before the learned Addl. Sessions Judge, to arrive at a conclusion that the said evidence, even if given face value and taken to be correct in its entirety; had not disclosed commission of an offence or on the basis thereof a judgment of conviction cannot be recorded at all. Appellants had raised certain defences. The same ultimately may or may not be accepted. But, indisputably, at this stage, the evidence adduced discloses some offence."

From the decisions noted above, it is clear that at the stage of exercise of power under Section 319 Cr.P.C., the evidence led before the Court, during the course of trial, is to be taken at its given face value. In the instant case, the court below drew satisfaction, with regards to the involvement of the revisionists in the offence, on the statements of witnesses who were injured in the incident. Accordingly, I do not find any legal infirmity, illegality, impropriety or jurisdictional error in the order passed by the court below. 

At this stage, learned counsel for the revisionists made a prayer that the persons proposed to be added as accused are ladies and that the main accused has already been enlarged on bail, therefore, some protection may be provided to them.

Considering the submission of the learned counsel for the revisionists, it is hereby provided that in case the revisionists appear before the court concerned and apply for bail, within three weeks from today, their bail application shall be considered and disposed of, expeditiously, in accordance with law.

Subject to the aforesaid observations, the revision application is dismissed.

Order Date :- 14.8.2012

AKShukla/-