Sanjeev Kumar Alias Sanjeev And ... vs State Of U.P. And Others
2014 Latest Caselaw 3875 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

              								            A.F.R.
 
Court No. - 13
 

 
Case :- CRIMINAL REVISION No. - 1162 of 2009
 

 
Revisionist :- Sanjeev Kumar Alias Sanjeev And Others
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Revisionist :- Mahesh Gautam
 
Counsel for Opposite Party :- Govt. Advocate,S.K. Pandey
 

 
Hon'ble Karuna Nand Bajpayee,J.

This Criminal revision has been preferred against the judgment and order dated 26.11.2008 passed by Addl. Sessions Judge/FTC Court No.2, Mathura in S.T. No.545 of 2006 (State Vs. Ramesh Chandra) whereby several additional accused including the accused revisionist nos.1, 2 and 3 namely, Sanjeev Kumar Alias Sanjeev, Munish Kumar alias Munish and Bhuvnesh Kumari have been summoned to face trial u/s 379 I.P.C.

List has been revised. Despite repeated calls none has appeared on behalf of revisionists. Sri S.K.Pandey, learned counsel for opposite party no.2 is present along with learned A.G.A. In the wake of heavy pendency of the cases in this Court where dockets are already bursting on their seams there is no reason to further procrastinate the matter. This Court, therefore, deems it fit to proceed in the matter on the basis of the record and with the assistance of the learned A.G.A.

It appears that the F.I.R. was lodged on 15.12.2005 by opposite party no.2- Vikram Singh with regard to the incident dated 22.4.2005 wherein several accused were nominated by name. But it seems that after investigation into the case, charge-sheet was not submitted against the accused-revisionists even though they had been nominated in the F.I.R. by the complainant. It further transpires that only one accused Ramesh was charge-sheeted. Thereafter when the trial began the statements of witnesses were recorded. As the witnesses had deposed and reiterated about the complicity of the accused-revisionists in the offence along with other co-accused who had been nominated in the F.I.R., an application u/s 319 Cr.P.C. was moved by A.D.G.C. The court was satisfied on the basis of the evidence that prima facie offences were made out and therefore, proceeded to summon certain additional accused, which included the revisionists, to face trial along with the accused who was already facing the trial. Aggrieved by the order of summoning the present revision has been filed.

The grounds of revision reveal that the impugned order has been sought to be assailed on several grounds. One of the grounds taken is to the effect that the revisionist no.1 Sanjeev Kumar alias Sanjeev is doing Ph.D in the Department of Medicine, All India Institute of Medical Sciences (AIIMS), New Delhi, while revisionist No.2 Munish Kumar alias Munish is working as Analyst-C, in Sri Ram Institute for Industrial Research, University Campus, New Delhi and revisionist No.3 Bhuvnesh Kumari is working as Sub Deputy Inspector of Schools (SDI) in district Agra. The contention seems to be that it is highly improbable that the co-accused Ramesh will ask his sons and daughter to participate in the unlawful activity of the nature which has been described in the F.I.R. Apart from this, it has also been submitted that an application u/s 319 Cr.P.C. moved at the earlier stage had already been rejected by the trial court and therefore without any substantial change in the nature of evidence available before the court the subsequent application ought not to have been allowed. Several other submissions have also been made and the ownership of the land has also been seriously challenged.

Learned counsel for the respondent in rebuttal has argued that at the stage of summoning of the accused only a prima facie satisfaction of the court is required and the ultimate reliability of evidence should not be gone into by the Court which may be appropriately adjudicated upon only at the stage of passing of the final verdict with regard to the innocence or guilt of the accused. According to respondent counsel the impugned order is well sustainable in law, as the witnesses produced in the trial have categorically nominated the accused-revisionists as participant in the alleged offence.

I have considered rival submissions made at bar and have perused the record.

Before adverting to the factual aspects of the case, it may be necessary to refer to some of the relevant case laws with regard to sufficiency of material on the point of summoning and also as to when the summoning of the accused may be quashed by the Court.

With regard to the appropriateness of exercise of power u/s 319 Cr.P.C. and correct manner of its use, in a recent pronouncement given by the constitution Bench the Apex Court in the case of Hardeep Singh etc.etc. Vs. State of Punjab and Ors.etc.etc. 2014(1) SCALE 241 in Criminal Appeal No.1750 of 2008, the entire scope u/s 319 Cr.p.C. have been vividly expatiated upon and it has been observed as follows:

...............

" Para 98. Power under section 319 Code of Criminal Procedure is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

Para 99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Code of Criminal Procedure In Section 319 Code of Criminal Procedure the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words " for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Code of Criminal Procedure to form any opinion as to the guilt of the accused."

From the aforesaid observations given by the constitution bench it is crystal clear and it does not admit of any controversy that though the standard to judge the evidence on the anvil of its ultimate reliability and testing the same on the cross of proof beyond reasonable doubt is not required at the stage of exercising the power u/s 319 Cr.P.C. but there is a an implicit requirement of a higher standard of courts satisfaction which is essentially different from the standard and the degree of satisfaction required to persuade the court to summon the accused to face the trial at the initial stage of 204 Cr.P.C.

With regard to the circumstances in which the criminal proceedings or the order of summoning passed u/s 204 Cr.P.C. may be quashed it may be of relevance to recall the decision given in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 wherein the Hon'ble Apex Court had held as follows:

"....................... Thus it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. It was observed by the Hon'ble Apex Court in Bhajan Lal's case as follows:-

"The following categories can be stated by way of illustration wherein the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.

It is true that normally the court does not enter into a roving inquiry regarding all the pros and cons of the evidence at the stage of summoning of the accused either u/s 204 Cr.P.C. or u/s 319 Cr.P.C. but it does not go to mean that even if the allegations made are bristling with high improbability the court should feel compelled to summon the accused just on the basis of the ipse-dixit of the witnesses who have chosen to implicate their rivals just because of their personal rancour and vengeance.

Accused-revisionists nos. 1 and 2 are the sons while accused-revisionist no.3 is the daughter of co-accused Ramesh Singh who is already facing trial and it is quite apparent on the face of record that just in order to wreak vengeance the entire family members have been implicated in the blanket manner. According to the complainants version accused Ramesh Chandra along with the a multitude of other co-accused persons came over the field which allegedly belonged to the complainant and forcibly committed theft by cutting and taking away his crop. It indeed sounds very unpalatable and is rather difficult to stomach the story that just in order to cut the crop and commit theft of the same the highly educated sons and daughter who are pursuing their higher academic careers at various highly acclaimed advance Centres of research and who are so highly placed in society should be called upon by their father to embroil themselves in committing such a crime of cutting away the crop as has been alleged. The involvement of the daughter is indeed even more incredible specially in the nature of offence which has been alleged.

It appears that the impugned order has been passed in a very mechanical manner and the trial court has simply not cared to look into the absurdity of the allegations made by the complainant. The court seems to have erred on the side of judicial credulity. It indeed looks to be a case of indiscriminate false implication and it seems to be the same reason as to why the revisionists were not charge-sheeted by the investigating officer. The court below aught to have been more judiciously discrete while summoning the accused-revisionists as the alleged facts are such which no man of ordinary prudence would ever feel persuaded to believe as true. The malice behind prosecution too is apparent on the face of record and this court cannot lend its judicial countenance to the perpetuation of the criminal proceeding which is so obviously the sequel of complainants personal ire against the father of the accused-revisionists.

In the aforesaid facts and circumstance of the case, I find good reasons to allow the revision. The principles of law with regard to the appropriateness of summoning the accused u/s 319 Cr.P.C. have neither been correctly appreciated nor rightly applied which renders the order under challenge incorrect. The impugned order with regard to the summoning of the accused revisionists, therefore, stands set aside.

It may be observed that this order is confined to only so far as the summoning of accused revisionists nos. 1, 2 and 3 are concerned and the matter with regard to other co-accused who have been summoned by way of the impugned order has not been looked into by this court..

Order Date :- 1.8.2014

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