Pramod Rai vs State Of U.P. & Another
2012 Latest Caselaw 3949 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?'AFR'
 
Court No. - 50
 

 
Case :- CRIMINAL REVISION No. - 2852 of 2012
 

 
Petitioner :- Pramod Rai
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Ravindra Tripathi
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Manoj Misra,J.

I have heard learned counsel for the revisionist and the 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 a reply or the records of the court below, as the relevant material has already been brought on the record. The learned A.G.A. also does not pray for time to file a counter-affidavit, as the same would only delay the proceedings.

By this revision, the revisionist, who is the informant,  has challenged the order dated 30.06.2012 passed by the Additional Sessions Judge, Court No.1, Gorakhpur in Session Trial No. 270 of 2011, whereby the application of the revisionist, under Section 319 Cr.P.C., to add Vijay Narayan Rai as accused, has been rejected.

The contention of the learned counsel for the revisionist is that with regard to unnatural death of the sister of the revisionist, a first information report was lodged as Case Crime No. 19 of 2011 at P.S. Sikriganj, District Gorakhpur against Bhagwat Rai (Sasur), Onkar Rai (Husband), Amit Rai (Dewar), Smt. Anita Rai (Saas) and Vijay Narayan Rai (Uncle-in-law), under Sections 498-A and 304 B I.P.C. It has been contended that in the first information report, it was alleged that the sister of the informant had informed the revisionist that her father-in-law (Bhagwat Rai), husband (Onkar Rai), mother-in-law (Smt. Anita Rai) and uncle-in-law (Vijay Narayan Rai) were harassing her with a demand of Rs. 50,000/- as dowry as well as threatened her that if that amount is not paid to her, she would be killed. It has been contended that the police carried out investigation, and laid charge-sheet against all the accused persons except Vijay Narayan Rai (the uncle-in-law). It has been contended that during the course of trial, from the statement of the informant (P.W.1), the complicity of Vijay Narayan Rai was disclosed in the commission of offence and it was, prima facie, established that he was also involved in demand of dowry and the harassment of the deceased. It has further been contended that the court below rejected the application, under Section 319 Cr.P.C., by taking into consideration the material collected during investigation which might have suggested that in connection with his occupation, the uncle-in-law (Vijay Narayan Rai) was residing separate. It has been contended that for the purpose of exercising power under Section 319 Cr.P.C., the evidence led before the court alone has to be considered. It has also been contended that since in the testimony recorded before the court it was disclosed that Vijay Narayan Rai, who was the uncle-in-law of the deceased, had been engaged, alongwith other accused persons, in harassing the deceased with regard to demand of dowry, the presumption of Section 113-B of the Indian Evidence Act would be applicable. Accordingly, it has been contended that the court below was not justified in rejecting the application, under Section 319 Cr.P.C. Reliance has also been placed on a judgment of the Apex Court in the case of Suman v. State of Rajasthan and another reported in (2010) 1 SCC 250 where, 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."

Before examining the weight of the submissions made by the learned counsel for the revisionist, it would be useful to examine the law governing the exercise of power under Section 319 Cr.P.C. The apex court in the case of Sarojben Ashwin Kumar Shah and others Vs. State of Gujarat (2011) 13 SCC 316, summarized the law in this regard, in paragraph 16, 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."

Having considered the submissions of the learned counsel for the revisionist as also the law noticed above, I am of the view that the conclusion of the investigating agency that Vijay Narayan Rai resided separately in connection with his business, is a plea to be taken in defence, as such, it cannot be taken into consideration at this stage. The statements recorded under Section 161 Cr.P.C. are not to be taken into consideration at this stage. The plea of alibi is to be taken and tested during the course of trial. The apex court in the case of Rajendra Singh v. State of U.P. reported in (2007) 7 SCC 378 while examining a case arising out of proceedings under Section 319 Cr.P.C., where the Sessions Judge had added accused in exercise of its power, under Section 319 Cr.P.C., whereas the High Court had interfered with the said order, in paragraph 11 thereof, observed as follows:-

"11. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 CrPC being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained."

Thus, it is clear that the power under Section 319 Cr.P.C. is to be exercised on the basis of the evidence led during the course of trial.

In the instant case, I find that the court below was swayed by the report of the Investigating Agency that the person sought to be added as accused resided separately even though there was no such evidence led before the Court.

Accordingly, I am of the view that the matter requires reconsideration by the court below. Thus, the order dated 30.06.2012 passed by the Additional Sessions Judge, Court No.1, Gorakhpur in S.T. No. 270 of 2011 is, hereby, set aside. The court below is directed to re-examine the matter, in accordance with law.

It is made clear that this Court has not expressed any opinion with regards to the merit of the matter. The contentions raised by the learned counsel for the revisionist have been noticed only for the purpose of deciding this revision. These contentions may not be taken as statement of facts. The court below while passing a fresh order shall exercise its powers, without being in any way prejudiced by any observation made in this order, and shall verify the facts on the basis of record available before it.

With the aforesaid directions, the revision stands disposed of.

Order Date :- 4.9.2012

Sunil Kr Tiwari