Smt. Avinash vs State Of U.P. & Another
2014 Latest Caselaw 1830 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Reserved on 30.4.2014 
 
Delivered on 19.5.2014
 
Court No. - 21
 
Case :- CRIMINAL REVISION No. - 2116 of 2007
 
Revisionist :- Smt. Avinash
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Raj Kumar Khanna
 
Counsel for Opposite Party :- Govt. Advocate
 
along with 
 
Case :- CRIMINAL REVISION No. - 2180 of 2007
 
revisionists :- Dharamvir
 
Opposite Party :- State Of U.P. & Another
 
Counsel for revisionists :- Raj Kumar Khanna
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Vijay Lakshmi,J. 

As both these revisions have been preferred against the same order, pertaining to same Crime No. and cause of action, both are being disposed of by this common judgment.

The revisionists of both the revisions are husband and wife, both of whom have been summoned under Section 319 Cr.P.C. by the order impugned.

By Revision No.2116 of 2007 (Smt. Avinash vs. State of U.P.& anr), the revisionist Smt. Avinash has challenged the order dated 4.7.2007 passed by Additional Sessions Judge, Court No.6, Bijnor, whereas the revisionist Dharamvir by Revision No.2180 of 2007, apart from the aforesaid order dated 4.7.2007, has challenged one more order dated 11.6.2007 passed by Additional Sessions Judge, Court No.6, Bijnor, whereby the learned Court has allowed the application moved by prosecution under section 311 Cr.P.C.

Some brief facts relevant for disposal of these revisions are that on 30.4.2005, the complainant Kunwar Sen lodged an FIR against the revisionist Dharamvir, his wife Smt. Avinash and two brothers of Dharamvir, namely Ram Autar and Naresh Kumar, mentioning therein that the accused persons are his cousin brothers. The complainant's son Gaurav had enticed away the wife of accused Ram Autar on 15.4.2005. Due to this enmity, the accused persons on 27.4.2005 took away the wife of complainant Smt. Kanta Devi with them. Karan Singh and his wife Krishna Devi, who lived in the same colony had seen them taking away Kanta Devi. The complainant and his family members searched for Kanta Devi but she could not be traced out. In the early morning of 30.4.2005 at about 5 :00 a.m. when Ram Autar, Naresh, Dharamvir and his wife Smt. Avinash were taking away the dead body of Kanta Devi in order to disposed it off, the son of complainant, Anurag and two other residents of vicinity, Arun Kumar, and Mahendra Singh noticed them. Having seen the son of complainant and the neighbours, the accused persons threw away the dead body of Kanta Devi in front of the house of Prakash Saini and ran away.

The case was registered and the matter was investigated. After concluding the investigation, the police submitted charge sheet only against two persons i.e. Ram Autar and Naresh Kumar Dharamvir and his wife Smt. Avinash were exonerated by the police. The trial proceeded against Ram Autar and Naresh Kumar. The complainant, his son Anurag and the eye witnesses named in the FIR were examined by the prosecution but all of them turned hostile.

On 1.6.2007, the complainant moved an application under section 311 Cr.P.C. to the effect that his son Gaurav was in custody of the accused persons, who after informing him that Gaurav is alive, assured him to hand over his son, in case he turns hostile in the court. On their assurance, the complainant, his son and his witnesses turned hostile while deposing in the court but even after expiry of considerable time after their deposition, the accused persons have not returned his son Gaurav to him. The complainant under these circumstances, intends to be re-examined so that truth may be brought to the notice of the court. The aforesaid application under Section 311 Cr.P.C. was allowed by the court and the complainant Kunwar Sen P.W.1 and his son Anurag P.W.-2 were recalled. After being recalled when both these witnesses were re-examined, they fully supported the prosecution case and the story narrated in the FIR, naming both the revisionists, as active participants in the crime.

When the names of both the revisionists, who although named in FIR were not charge-sheeted came to light, the prosecution moved an application under section 319 Cr.P.C. to summon the accused persons Dharamvir and Smt. Avinash to face the trial. The learned Sessions Judge vide impugned order dated 4.7.2007 allowed the application and summoned both the revisionists and at the same time issued notices to both the witnesses for deposing two entirely different facts before this Court.

The revisionists have challenged the aforesaid order of the Trial Court mainly on the ground that the learned Trial Court has wrongly summoned the revisionists under section 319 Cr.P.C. without adhering to the guidelines laid down by the Hon'ble Apex Court in several decisions that the discretionary jurisdiction under section 319 Cr.P.C. must be exercised sparingly only if compelling reasons exists for taking cognizance against the persons sought to be summoned.

Learned counsel for the revisionists has vehemently argued that the learned Trial Court, on one hand, has summoned the revisionists under section 319 Cr.P.C. on the basis of the statements of the witnesses and on the other hand has issued notices to the same witnesses under Section 344 Cr.P.C. for stating on oath two contradictory facts. The case has also been culminated into acquittal as learned trial Court found the statements of the prosecution witnesses unreliable and full of material contradictions. In this regard learned counsel for the revisionists has drawn the attention of this court to the supplementary affidavit annexed with the certified copy of the judgement passed in concerned Session Trial, which shows that all the accused persons have been acquitted by the Trial Court as learned Trial Court has not relied upon the contradictory statements of the witnesses.

Learned counsel for the revisionists has argued that under these circumstances, when the learned Trial Court had disbelieved the statements of witnesses, it was neither proper nor justified to summon the revisionists, believing on the same statements of prosecution witnesses, against him notices under section 344 Cr.P.C. was issued by it. It has further been contended that the learned Trial Court has summoned the revisionists only on the basis of their examination in chief, whereas, as per the law laid down by the Hon'ble Apex Court in Mohd. Shafi vs. Mohd. Rafiq & Ors 2007 (2) JIC 490 while exercising jurisdiction under section 319 Cr.P.C. the court must satisfy itself that the person summoned is in all likelihood would be convicted.

Learned counsel for the revisionists has challenged the impugned order on one more ground by arguing that after judging the case, the Trial Judge become 'functus officio' so he could not have exercised the power under Section 319 Cr.P.C. In this regard, learned counsel for revisionists has placed reliance on a judgment of this court of Hon'ble Single Judge in the case of Ajay vs. State of U.P. [2011 (73) ACC 227].

Per contra learned AGA has contended that the learned Trial Judge has passed a well reasoned order and has committed no mistake while exercising its jurisdiction under section 319 Cr.P.C. by summoning the revisionists to face trial.

After having heard learned counsel from both the sides and considering the facts and circumstances, I am of the considered view that the revision has no force and is liable to be dismissed for the following reasons:-

So far as the argument of learned counsel for revisionists regarding the Trial Judge to become 'functus officio' is concerned, the case law cited by learned counsel for the revisionist is of no help to him because the facts of Ajay's case (Supra) are totally different from the facts of instant revision.

In the instant case the revisionists have been summoned by learned trial Judge before the delivery of the judgment and not afterwards, as was the situation in Ajay's case. The record shows that the judgement has been delivered on 13.1.2010 whereas the impugned order summoning the revisionists under section 319 Cr.P.C. was passed on 14.7.2007,i.e. about 2 and half year prior to delivery of judgment, so there is no question of trial Judge becoming "functus officio."

The impugned order dated 4.7.2007 shows that the learned Trial Court while passing the impugned order under Section 319 Cr.P.C. has relied on several case laws and after recording a clear finding that the revisionists were named in the FIR, the father and brother of the victim, who were the eye witnesses, although, initially turning hostile, have, later on supported the prosecution case and FIR version when recalled under section 311 Cr.P.C., the learned trial Judge has allowed the application under section 319 Cr.P.C.

The pronouncement of Hon'ble Apex Court in Mohd. Shafi's case (Supra) is also of no help to the revisionist in wake of the recent constitution Bench judgment of Apex Court in the case of (Hardeep Singh vs. State of Punjab and others along with 9 other connected criminal appeals) [2014 (1) JIC 539 (SC)] wherein it has been held that :-

"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."

So far as challenge to order passed under section 311 Cr.P.C. is concerned there appears no illegality in that order too. Learned trial court has rightly allowed the application under section 311 Cr.P.C. for cogent reasons, as the witness had alleged that the accused persons had not fulfilled their promise to return their son Gaurav to them. According to the witnesses they had not supported the prosecution case earlier due to expectation of handing over of Gaurav by the accused persons,now they intend to depose three facts.

Moreover a perusal of the supplementary affidavit filed by the revisionists shows that final judgement has been delivered in the concerned case by the trial court. Therefore, the revision against the order dated 1.6.2007 passed under section 311 Cr.P.C. has become infructuous.

Keeping in view the aforesaid factual and legal aspect of the case, there appears no illegality or. irregularity in the impugned orders. The revision is without any force and is liable to be dismissed and is dismissed accordingly.

Order Date :- 19.5.2014

Ps.