Saurabh Gupta vs State Of U.P. & Others
2012 Latest Caselaw 4071 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 50
 

 
Case :- CRIMINAL REVISION No. - 2922 of 2012
 

 
Petitioner :- Saurabh Gupta
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- R.B. Sahai,V.K. Baranwal
 
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 a counter affidavit and the learned A.G.A. also does not pray for time to file a counter affidavit, as the relevant material is already on record.

By this revision, the revisionist, who is the informant, has challenged the order dated 16.08.2012 passed by the Additional Sessions Judge, Court No.4, Etawah, whereby the application, under Section 319 Cr.P.C., submitted by the prosecution for adding Bharat Bhadauriya, Anand Kumar Gupta and Ankur Gupta as accused so as to face trial along with Sadan Bhdauriya, under Sections 307, 506 I.P.C., has been rejected.

I have perused the record. The facts of the case, as they emerge from the record, are that a First Information Report was lodged on 30.01.2011 by the revisionist (Saurabh Gupta) against Sadan Bhadauriya (charge sheeted), Bharat Singh Bhadauriya, Anand Kumar and Ankur Gupta along with one unnamed person, which was registered as Case Crime No.79 of 2011 at P.S. Kotwali, District Etawah, under Sections 394, 307, 506, 120B I.P.C. It was alleged in the First Information Report that while the informant and his father (Shesh Kumar Gupta) were returning on a motorcycle with cash of Rs.3,00,000/-, at about 8.30 P.M., in the night of 29.01.2011, near the Basic Shiksha Office, Sadan Bhadauriya, Bharat Singh Bhadauriya and another unknown person stopped them and started hurling abuse at informant's father, when they were told not to use abusive language, all the three persons who were armed with knives attacked Shesh Kumar Gupta (the father of the informant)  with an intention to cause his death and took away Rs.3,00,000/-. In the First Information Report it was stated that the informant, out of fear, ran away from the place of occurrence towards the bushes and neither the informant could reach his house nor could immediately lodge the report. It was later found by him that some road traveller had informed the police that his father was lying on the road. In the First Information Report it was also alleged that Anand Kumar and Ankur Gupta were the persons, who instigated the attack on his father. The police carried out investigation and laid charge sheet only against Sadan Bhadauriya, under Sections 307 and 506 I.P.C.

During the course of trial, statement of Saurabh Gupta (informant) was recorded as P.W.3 and the statement of Shesh Kumar Gupta (the injured) was recorded as P.W.4. Saurabh Gupta (P.W.3) turned hostile and stated that when the attack on his father had taken place he could not recognize the assailants as he ran away out of fear and when he returned on spot he could not find his father there and later he found him in the hospital, in an injured condition. He was, accordingly, declared hostile by the prosecution. However, in the statement of Shesh Kumar Gupta (the injured), who was examined as P.W.4, the complicity of the assailants Sadan Bhdauriya, Bharat Singh Bhadauriya and one unknown person was disclosed. He also stated that at some distance Anand Kumar and Ankur Gupta were standing. On the strength of the statement of P.W.4 an application was filed, under Section 319 Cr.P.C., to add Bharat Singh Bhadauriya, Anand Kumar and Ankur Gupta as accused. The court below considering the testimony of the informant (P.W.3), who had turned hostile, rejected the application.

Challenging the order of the court below, the learned counsel for the revisionist contended that from the testimony of P.W.4, who was a person injured, with five incised wounds, the complicity of Bharat Singh Bhadauriya in the commission of offence was clearly disclosed and since it was possible that P.W.3 might not have witnessed the incident completely, the testimony of the injured witness could not have been discarded at this stage which, if left, unrebutted was reasonably sufficient to lead to conviction of Bharat Singh Bhadauriya, therefore, the rejection of the application, under Section 319 Cr.P.C., was not justified in law.

Having considered the submissions made by the learned counsel for the revisionist as also on perusal of the record, I am, prima facie, of the view that the testimony of P.W.4, who is an injured witness with five incised wounds, disclosed the involvement of Bharat Singh Bhadauriya apart from Sadan Bhadauriya (the person charge sheeted) in the incident and, at this stage, it cannot be discarded only because his son had turned hostile.

The Apex Court 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, 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."

Likewise, 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."

It is settled position of law that the evidence, which is required to be considered for the purpose of exercise of power under Section 319 Cr.P.C., is the evidence led in court. The court at the time of consideration of an application, under Section 319 Cr.P.C., has to consider the evidence led before it for the purpose of drawing satisfaction that the evidence, if left unrebutted, would reasonably lead to conviction of the person sought to be added as accused. The court at the stage of considering exercise of power under Section 319 Cr.P.C. is neither required to write a judgment of conviction nor of acquittal. It has only to satisfy itself whether the complicity of the person proposed to be added as an accused appears to be clear, so that he could be tried together with the accused.

Thus, I am of the view that the matter requires to be re-examined by the court below. Accordingly, the order dated 16.08.2012 passed by the Additional Sessions Judge, Court No.4, Etawah in S.T. No.122 of 2011 is set aside and the court below is directed to re-examine the matter, in accordance with law.

It is made clear that the contentions of the learned counsel for the revisionist as also the facts have been noted only for the purpose of deciding this revision. They should not be taken as a finding or statement of fact. The court below shall pass the order on the basis of the record available before it.

With the aforesaid directions, the revision stands disposed of.

Order Date :- 11.9.2012

AKShukla/-