Gulab Yadav vs State Of U.P. & Another
2012 Latest Caselaw 3645 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 50
 
Case :- CRIMINAL REVISION No. - 2665 of 2012
 
Petitioner :- Gulab Yadav
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Mohd. Naushad Siddiqui
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Manoj Misra,J.

Affidavit has been filed today, which is taken on record.

Heard learned counsel for the revisionist and learned A.G.A. for the State.

Considering the nature of the order that is being passed, I do not consider it necessary to call for counter affidavit, particularly, when the relevant material is already on record. Learned A.G.A. also does not pray for time to file counter affidavit, as the same would only cause delay in the proceedings.

By this revision, the revisionist, who is the informant and the father of the deceased (Vibha), has challenged the order dated 04.07.2012 passed by the Additional District and Sessions Judge/Special Judge, Chandauli in S.T. No.112 of 2009, whereby the application of the revisionist, under Section 319 Cr.P.C., to add Madhulika as an accused, so as to face trial along with other accused persons, has been rejected.

The facts, in brief, are that the daughter of the revisionist, namely, Vibha was married to Vishwas Mohan. The marriage took place on 18.05.2003. Smt. Vibha died due to burn injuries on 13.07.2008 i.e. within seven years of her marriage. On 13.07.2008 itself a First Information Report was lodged by the revisionist against Vishwas Mohan (the husband), Prem Narain (Sasur), Vedwanti (Saas), Virendra Mohan (Jeth), Bharat Mohan (Jeth), Usha (Jethani) and Madhulika (Nanand). This First Information Report was registered as Case Crime No.10 of 2008, under Sections 498A and 304-B I.P.C. and Sections 3/4 of D.P. Act at Police Station Chakarghatta, District Chandauli. In this First Information Report, allegations were made against all the accused persons with respect to harassment of the deceased for demand of dowry. Pursuant to the First Information Report, the police carried out investigation and laid charge sheet against all the persons accused except Madhulika (Nanand).

It has been contended that the complicity of Madhulika along with other accused persons was disclosed from the initial stage itself and was also affirmed by statements recorded under Sections 161 Cr.P.C. It has been further contended that during the course of trial, statements of P.W.1 (the informant) and P.W.2 (the uncle of the deceased) were recorded and in their statements they clearly alleged that all the seven accused persons, which includes Madhulika, were involved in harassment of Vibha with respect to dowry.

Consequent to the recording of the statement of the aforesaid witnesses, during the course of trial, application was made, under Section 319 Cr.P.C., to add Madhulika as an accused, so as to face trial along with the other accused persons. The court below rejected the said application on the ground that in the statement of P.W.1 as also P.W.2 specific allegation against any particular accused was not made; and since the accused persons, facing trial, as well as other persons, had given affidavit that Madhulika was a student of Banaras Hindu University, and in connection with her education was not residing at the house where Vibha died, therefore, it was not a fit case for exercise of power, under Section 319 Cr.P.C., to add Madhulika as an accused.

Challenging the order passed by the court below, learned counsel for the revisionist submitted that the testimony against Madhulika as also against the other accused persons facing trial is same, therefore, there was no justification to keep Madhulika out of the trial when her complicity was disclosed from the initial stage itself and the law would raise a presumption of her guilt by virtue of Section 113 B of the Indian Evidence Act. Further submission of the learned counsel for the revisionist is that the affidavits of the accused could not have been relied upon for the purpose of rejecting the application, under Section 319 Cr.P.C., inasmuch as the power, under Section 319 Cr.P.C., is to be exercised on the basis of the evidence recorded during trial. Since the evidence, that was recorded during trial, had clearly disclosed the complicity of Madhulika there was no justification for not summoning her to face trial along with the other accused persons.

Reliance has also been placed on a decision of Apex Court in the case of  Suman v. State of Rajasthan and another reported in (2010) 1 SCC 250, wherein the Apex Court in paragraph 27 of the judgment 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."

Relying on the judgment of the Apex Court it was contended that since the complicity of Madhulika was disclosed from the initial stage itself and the testimony against her as well as other accused persons is more or less similar there was no justification to leave her out of the trial.

Having considered the submissions of the learned counsel for the revisionist as also on perusal of the order passed by the court below as well as the material available on record, I am of the view that, prima facie, the evidence against the persons, who are already facing trial, is similar to that against Madhulika. The question whether Madhulika, in connection with her studies, was not residing in the house where the death of Vibha took place, is a matter of defence, which has to be examined during the course of trial. The affidavits of persons accused as well as of others, which have been considered by the court below, at this stage, do not partake the character of evidence, so as to make them relevant for the purpose of exercise or non-exercise of the power under Section 319 Cr.P.C. The record does not show that defence testimony has, as yet, been recorded. In the case of Ranjit Singh Vs. State of Punjab (1998) 7 SCC 149 it has been held that "evidence" envisaged in Section 319 of the Code is the evidence tendered during trial. Similar view has been expressed in a recent decision of the Apex Court in the case of Sarojben Ashwin Kumar Shah and others Vs. State of Gujarat (2011) 13 SCC 316, where in paragraph no.16, the Apex Court observed as follows:-

"16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this :

(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.

(iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word `evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.

(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

(vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion."

In the given circumstances, the affidavits relied upon by the court below, so as to conclude that Madhulika may not be residing in the house where Vibha died, were not relevant, at this stage. Thus, the order passed by the court below is rendered vulnerable.

For the reasons aforesaid, I am of the view that the court below requires to re-consider the application, under Section 319 Cr.P.C. Accordingly, the order dated 04.07.2012 passed by the Additional District and Sessions Judge/Special Judge, Chandauli in S.T. No.112 of 2009 is hereby set aside with a direction to the court below to pass a fresh order, in accordance with law.

It is, however, made clear that this Court has not expressed opinion on the merit of the testimony/evidence. The court below is, therefore, required to re-consider/re-examine the matter strictly in accordance with the settled principles of law.

With the aforesaid directions, the revision stands disposed of.

Order Date :- 23.8.2012

AKShukla/-