Smt. Zeenat Parveen & Another vs State Of U.P.& Another
2012 Latest Caselaw 3104 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Case :- CRIMINAL REVISION No. - 63 of 2008
 

 
Petitioner :- Smt. Zeenat Parveen & Another
 
Respondent :- State Of U.P.& Another
 
Petitioner Counsel :- Brij Raj Mishra,V. Singh
 
Respondent Counsel :- Govt. Advocate,Brij Raj Singh
 

 
Hon'ble Arvind Kumar Tripathi (II),J.

Heard Sri Brij Raj Singh, learned counsel for the respondent No. 2 and learned AGA for respondent No. 1. None present for revisionists, so the impugned judgement and order was perused.

It appears that an FIR was lodged by Abdul Wahid in police station Khurja, District Bulandshahr, under sections 498A, 323, 504, 506, 304B IPC and Section 3/4 D.P. Act regarding death of his daughter Nigar Parveen by her matrimonial relation for demand of dowry. The investigating officer, after investigation, submitted charge sheet only against Zaheer @ Chhotey and Mugirul under sections 498A, 304B, 323, 504, 506 IPC and Section 3/4 D.P. Act. He found that Reshma and Zeenat were wrongly implicated. He found that these are married nanad of the deceased. Reshma lives in Gangdundwara and Zeenat is living in Khurja along with their family. After framing of charge, P.W.1 Abdul Wahid was examined and after his examination-in-chief, an application under section 319 Cr. P.C. Was moved to summon Smt. Reshma and Zeenat to face the trial. Learned court below after hearing the prosecution, summoned Smt. Reshma and Zeenat to face trial under section 498A, 304B IPC and Section 3/4 D.P. Act. by the impugned order, against which this criminal revision has been preferred.

As the revisionist is not present and was not heard, so it is necessary to reiterate his grounds of revision. It has been mentioned in the ground of revision that Zahir @ Chhote was living with his wife separately in a rented house in Mohalla Saraimurtja, P.S. Kotwali Khurja, District Bulandshahr, in a rented house no other family members were living with her child and her husband. Applicant No. 1 Smt. Zeenat was living with her husband in house No. 107, Khurja, District Bulandshahr for last 20 years and her husband is a teacher in an an Intermediate College in Khurja and she has no concern with Zahir. Revisionist No. 2 Smt. Reshma is married with Rashid and living at village Ganeshpur, P.S. Ganj Dundwara, District Etah at the time of incident. The dead body was found in rented room of Iqubaluddin on the 1st floor. In the post-mortem examination report, a ligature mark with a gap of 3.5 cm. on right side of neck was found and it clearly shows that she has committed suicide. Both the revisionists lived at different places, so there was no question of demand of dowry or torture by the revisionists. There was no material against the revisionists in respect of any torture or demand of dowry by them, since both revisionists are living with her husband for last several years in different places.

Learned counsel for the respondent arguments is that the order passed by the lower court is correct as from the evidence or record, he found prima facie case for summoning the revisionist to face trial.

In Joginder Singh v. State of Punjab (1979) 1 SCC 345), the Apex Court while dealing with the ambit and scope of section 319 Cr. P, C., held that the court has power to add any person as accused, if there is sufficient evidence indicating his involvement in the offence.

In Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983 (1) SCC 1), the Apex Court after referring to the decision of Joginder Singh's case (supra) observed that the power under section 319 Cr. P. C. is an extra ordinary power, which should be used very sparingly only, if compelling reasons exists for taking cognizance against the other person against whom some action has not been taken.

In the case of Rakesh & another vs. State of Hariyana, 2001 SCC (Crl) 1090, the Apex Court extended the meaning of the term 'evidence' used in section 319 Cr. P. C. to include not only the evidence given during the inquiry or trial but also the evidence collected during the investigation and forming part of the case diary. The Apex Court overruled the submission that the term 'evidence' used in section 319 Cr. P. C. would mean "evidence which is tested by cross- examination' by holding that the question of testing the evidence by cross-examination would arise only after addition of the accused.

But in the case of Mohd. Shafi v. Mohd. Rafiq & Anr., (2007) 4 SCR 1023, the Apex Court expressed a contrary opinion and propounded that the trial judge in terms of Section 319 Cr. P. C. was required to arrive at his satisfaction only after the cross-examination of the witnesses is over with no exception.

Another Division Bench of the Apex Court in the case of Hardeep Singh vs. State of and Punjab and another 2008 (16) SCALE 276, doubted the correctness of the judgment rendered in the case of Mohd. Shafi v. Mohd. Rafiq & another (supra) and referred the following two questions to a Larger Bench:

(i) When the power under sub-section (1) of section 319 of the Code of addition of accused can be exercised by a Court? Whether application under section 319 is not maintainable unless the cross-examination of the witness is complete?

(ii) What is the test and what are the guidelines of exercising power under sub-section (1) of section 319 of the Code? Whether such power can be exercised only, if the Court is satisfied that the accused summoned in all likelihood would be convicted?

However, in Hardeep Singh's case (supra) the Apex Court held that at the stage of issuing summons or process, a court has to see whether there is a prima facie case against the person sought to be summoned or against whom process is sought to be issued.

A Three Judge Bench of the Apex Court in the case of Y. Saraba Reddy vs. Puthur Rami Reddy (2007) 4 SCC 773, propounded that the term evidence under section 319 Cr.P.C. contemplates the evidence of witnesses given in the court and not the materials contained in the charge sheet or the case diary. In this way, the Three Judge Bench of the Apex Court has taken a view which is different from the view expressed in the case of Rakesh (supra) by a Two Judge Bench of the Apex Court. Therefore, the view expressed in Y. Saraba Reddy's case would prevail.

In the case of Sarabjit Singh and another vs. State of Punjab and another 2009 (66) ACC 32, which was decided much after the decision rendered in the cases of Rakesh (supra), Mohd. Shafi (supra) and Hardeep Singh (supra), another Division Bench of the Apex Court held that indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would 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 sparingly. The Apex Court further observed that an order under section 319 Cr.P.C., therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person. Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. After making these observations, the Apex Court further held that the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.

In Sarabjeet Singh's case, the Apex Court further observed that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the Court must be satisfied that there exists a strong suspicion. While framing charge in terms of section 227 Cr.P.C., the court must consider the entire materials on record to form an opinion that the evidence, if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under section 319 Cr.P.C. is the question. The answer to these questions should be rendered in the affirmative. Unless, a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (I) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.

Another Division Bench of the Apex Court in the case of Brindaban Das and others vs. State of West Bengal, 2009 (66) ACC 273, propounded the same principle and held that in matters relating to invocation of powers under section 319 Cr.P.C., the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. The Apex Court further observed that the fulcrum on which the invocation of section 319, Cr.P.C. rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned.

In the case of Michael Machado & Anr. V. Central Bureau of Investigation & Anr., (2000) 3 SCC 262, the Apex Court propounded that power under section 319 Cr.P.C. vested in the Court should be used sparingly and the evidence on which the same was to be invoked should indicate a reasonable prospect of conviction of the person sought to be summoned.

The prospects of conviction as one of the requirement for summoning a person as accused under section 319 Cr.P.C. has been propounded even in the case of Krishnappa vs. State of Karnataka, 2004 (7) SCC 792. It has been held in that case that invocation of the power under section 319 Cr.P.C. should not have been resorted to, since the chances of conviction on the basis of the evidence on record was remote. Applying the principles laid down in the cases of Ram Kishan Rohtagi and Michael Machado, the Apex Court further ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused.

In the case of Harbhajan Singh & Another Versus State of Punjab & Another, 2009 (13) SCC 608, a division bench of the Apex Court has held that only because the correctness of a portion of the judgment in the case of Mohd. Shafi (supra) has been doubted by another bench, the same would not mean that we should wait for the decision of the larger bench, particularly when the same instead of assisting the appellants runs counter to their contention. The Division Bench further held that decision of this Court in the case of Mohd. Shafi (supra), therefore, in our opinion, is not an authority for the proposition that in each and every case the Court must wait till the cross-examination is over. The observation of the Apex Court in this regard is reproduced as follows:

"We would assume that in all cases the court may not wait till cross-examination is over for the purpose of exercising its jurisdiction. In the aforementioned decision, the learned Judges had referred to a judgment of this Court in the case of Rakesh & Anr. v. State of Haryana (2001) 6 SCC 248 wherein it was held that even without cross-examination on the basis of a prima facie material which would enable the Sessions Court to decide whether the power under Section 319 of the Code should be exercised or not stating that at that stage evidence as used in Section 319 of the Code would not mean evidence which is tested by cross-examination.

..... The decision of this Court in the case of Mohd. Shafi (supra), therefore, in our opinion, is not an authority for the proposition that in each and every case the Court must wait till the cross-examination is over."

A survey of the aforesaid decisions clearly reveals that the power under section 319 Cr.P.C. is an extra ordinary power, which may be used very sparingly only if compelling or cogent reasons exist against the person sought to be summoned. The term 'evidence' used in section 319 Cr.P.C. does not necessarily mean the evidence which is tested by cross examination. The view expressed in the case of Mohd. Shafi (supra) in this regard, has not been subsequently followed by the Apex Court in the cases of Sarabjeet Singh (supra). The view expressed in the case of Sarabjeet Singh (supra) has also been expressed in the case of Rakesh (supra), Hardeep (supra) and Harbhajan (supra), therefore, a summoning order can not be set aside on the ground that the statements of the witnesses relied on by the court for passing the summoning order, have not been subjected to cross examination. It is true that a Division Bench of the Apex Court in Hardeep Singh's (supra) has referred the questions specified in paragraph 11 of this judgment to a Larger Bench but another Division Bench of the Apex Court in Harbhajan Singh's case (supra) has observed that the same would not mean that we should wait the decision of the Larger Bench. The accused sought to be summoned, has no right to be heard on the application under section 319 Cr.P.C., therefore, he has no right to cross-examine the witnesses being examined for the purpose of section 319 Cr.P.C.. The accused already facing the trial may or may not like to make cross-examination of the witnesses in regard to the complicity of the person sought to be summoned. Sometimes such accused may act even contrary to the interest of such persons. However, the court may, in its discretion, allow the accused already facing the trial to cross examine the witness or witnesses in relation to the complicity of the person sought to be summoned so as to enable it to render a just and proper order under section 319 Cr.P.C.. In this view of the matter, there is no compulsion to get part or full cross-examination of the witnesses done before passing a summoning order under section 319 Cr.P.C. In appropriate cases if the complicity of a person not facing the trial and is not before the court as accused, comes in light in the statement of a witness, it is also open to the court to put relevant questions to the witness to ascertain prima facie correctness of the statement regarding complicity of that person. The Trial Judges and Magistrates have to play pivotal roles in the matter and should not act mere as silent spectators. Therefore, the summoning order under section 319 Cr.P.C. can not be quashed only on the ground that the witnesses have not been cross examined.

In the cases of Sarabjeet (Supra), Brindawan Das, Michael Machado (supra) and Krishnappa (supra), it has been clearly held that summoning order should be passed only when the evidence, if uncontroverted, is of such a nature as to reasonably lead to conviction of the person sought to be summoned. The standard of evidence required for summoning an additional accused should be higher than the evidence required for framing charges because the jurisdiction under section 319 Cr.P.C. is to be exercised sparingly in an extra ordinary situation. Whether or not any evidence is of such a quality as to record conviction if it remains uncontroverted, is a variable question depending upon the facts and circumstances of each case and no hard and fast rule can be laid down in this regard. However, the court considering the evidence for the purpose of section 319 Cr.P.C. is not legally required to evaluate the evidence as it is ordinarily done while rendering the final judgment but the court has to see whether or not, the evidence on record appeals to the reason for the purposes of section 319 Cr.P.C. and the story narrated by the witnesses against the person sought to be summoned is not improbable and absurd and a conviction is possible on such statements, if uncontroverted. A non observance of this legal requirement would render the summoning order illegal.

In the instant case the court below while passing the order under section 319 Cr.P.C., has not recorded any specific finding as to whether or not the evidence adduced under section 319 Cr.P.C. if unrebutted, would be sufficient to record a conviction against the petitioners. In absence of such finding, the impugned order can not be sustained.

For the reasons discussed above, the revision is allowed. The impugned order dated 22.10.2007 is set aside. The matter is remanded to the learned trial court to reconsider the application under section 319 Cr.P.C. in the light of the aforesaid observations and pass an appropriate order in accordance with law expeditiously.

(Arvind Kumar Tripathi-II,J)

Order Date :- 20.07.2012.

v.k.updh.