Rakesh Nath Tiwari vs State Of U.P. And Anr.
2014 Latest Caselaw 4179 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 14
 

 
Case :- CRIMINAL REVISION No. - 2082 of 2014
 

 
Revisionist :- Rakesh Nath Tiwari
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Brijesh Sahai, P.B. Singh
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

Supplementary affidavit filed today is taken on record.

Heard Shri Satish Trivedi, learned Senior Counsel for the revisionist and learned AGA for the State.

This revision has been preferred against the judgment and order dated 19.07.2014 passed by the learned Additional Sessions Judge, Court No. 6, Allahabad in Sessions Trial No. 1612 of 2011 arising out of Case Crime No. 15 of 2011 (State vs. Vidhan Chandra and others), under sections 307, 325, 504, 506 IPC, PS Manda, district Allahabad, rejecting the application moved under section 319 Cr.P.C.

Facts of the case, in brief, are that the prosecution moved an application under section 319 Cr.P.C. with the prayer that the accused Vyas Ji Tiwari caused serious injuries to witness Rakesh Nath Tiwari, hence he be also summoned under section 319 Cr.P.C.

In 2014 (84) ACC 656, State of Tamil Nadu vs N. Suresh Rajan and others, the Hon'ble Apex Court has laid down as under:

"True it is that at the time of consideration of the applications for discharge, the Court cannot act as a mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the Court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the Court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage. Reference in this connection cn be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another, in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi):

"11. It is trite that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."

In the case in hand the accused Vyas Ji Tiwari has been named in the FIR. As far as the statement of PW-1 Ved Mani Tiwari is concerned, he has also specifically stated that Vyas Ji Tiwari had caused injuries on his head due to which the parietal bone was fractured and he was serious. PW-2 has also stated that Vyas Ji Tiwari and others (names mentioned armed with lathi, hockey and gandasa) assaulted them. Thus, both the witnesses have named the accused and prima facie there is sufficient evidence to connect the accused Vyas Ji Tiwari with the offence. The learned trial court said that there should be the evidence for which such presumption could be connected, but the Hon'ble Apex Court has laid down in Hardeep Singh vs. State of Punjab, 2014 Crl. L.J. page 1118, the Hon'ble Apex Court has sum up the matter and has passed an order as under:

"We accordingly sum up our conclusions as follows:

Question Nos.1 & III

Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?

AND

Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.

Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question No. II

Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question No. IV

Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question No.V

Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?

A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."

Thus, it is clear that the satisfaction, which the Court has to arrive at for summoning the accused is that materials disclosed against newly summoned accused are enough to frame charges against him. The lower court has erred in rejecting the discharge application. Hence, the revision is liable to be allowed.

The revision is allowed and the order dated 19.07.2014 is set aside. The learned Additional Sessions Judge, Court No. 6, Allahabad to pass fresh orders on the application under section 319 Cr.P.C. keeping in mind the observations made in this revision after hearing the parties concerned.

Order Date :- 8.8.2014

Sazia