Allahabad High Court

Joni vs State Of U.P. And Anr. on 16 October, 2015

Bench: Pramod Kumar Srivastava




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Case :- CRIMINAL REVISION No. - 179 of 2012
 

 
Revisionist :- Joni
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Pankaj Bharti
 
Counsel for Opposite Party :- Govt. Advocate,Ajay Kumar Sharma
 

 
Hon'ble Pramod Kumar Srivastava,J.

1. This revision has been filed against the order dated 19.12.2011 passed by Additional Sessions Judge, Court No. 1 Kairana, Muzzafarnagar in S.T. No. 755 of 2011 (State Vs. Anuj) by which application 24 Kha of Additional District Government Counsel (Criminal) under Section 319 Cr.P.C. for summoning the accused Virendra was rejected.

2. During trial of S.T. No. 755 of 2011, after framing of the charges against accused persons, the prosecution side had examined PW-1 Joni S/o Kripal Singh and after it, moved application 24 Kha under Section 319 Cr.P.C. Dated 13.12.2011 for summoning the additional accused Virendra. This application 24 Kha reads that witness PW-1 stated that Virendra had entered in conspiracy with his son Anuj due to this complainant Anuj had murdered Kripal Singh @ Kala. Since the name of Virendra Singh has appeared in FIR and in statement under Section 161 Cr.P.C. during investigation, evidences against Virendra is available, therefore, Virendra should be summoned as accused in this case.

3.I have heard rival contentions and gone through the record of the case.

4.In Jagannath Choudhary & ors vs. Ramayan Singh & another, AIR2002 S.C. 2229 Hon'ble Supreme Court had held that:

"Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction". - - - "It is not an appeal wherein scruitiny of evidence is possible, neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible."

5. If his statement is accepted to be true and fully believable, in that condition also the conclusion may be remote chances of alleged motive only. There is no evidence of either any conspiracy nor that of direct or indirect involvement of Virendra in the alleged incident relating to charge. The personal opinion of PW-1 without any basis cannot be accepted the evidence of commission of any offence. In these circumstances this contention of learned AGA cannot be discarded that impugned order on facts appears to be completely perverse and unacceptable. It is advised that before reaching to any conclusion court must apply judicial mind and read the things between the lines instead of refraining to interfere in biased opinions of witnesses.

6. Section 319 (1) CrPC reads :

" (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed."

7. In Lal Suraj v. State of Jharkhand (2009)2 SCC 696 Apex Court held that:

"16. ... A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 CrPC, the power has to be exercised on the basis of the fresh evidence brought before the court."

8. Apex Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 held as under :

"57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial."

"78. It is, therefore, clear that the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation."

"85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The "evidence" is thus, limited to the evidence recorded during trial."

9. The trial court is not expected to go through statements u/s 161 CrPC at the time of exercising the powers u/s 319 CrPC. This is illegality committed at the time of passing of impugned order. Again the trial court cannot ignore the statement of witness examined in support of the charge, at the time of exercising jurisdiction u/s 319 CrPC, and on the contrary it is expected to properly consider the evidences adduced or available before it.

10. The trial court had afforded opportunity of hearing to the prosecution side on this application 24 Kha under Section 319 CrPC. Thereafter, trial court had discussed in detail, the evidence of examined witness side PW-1 and thereafter held that sufficient evidence to satisfy the court for summoning the said person as accused is not available before court, therefore he should not be summoned. On the basis of this finding, trial court had rejected the said application 24Kha by impugned order. This order of learned Additional Sessions Judge contains proper discussion of facts of the case as well as evidences of PW-1 Joni.

11. The trial court court had also discussed legal position and case laws and passed impugned order after application of judicial mind. This order appears just and proper. But the contention of the learned counsel for the revision was that there are sufficient evidence in case diary as well as statement of PW-1 Joni together indicates the involvement of Virendra in conspiracy of commission of charged offence. Therefore, he should have been summoned by the trial court.

12. A perusal of the evidence of PW-1 Joni reveals that his statement is based on appreciation and speculation with the knowledge of any fact relating to actual commission charged incident although, he had stated the name of Virendra but had said nothing that may relate the revisionist with commission of charged offence in the case.

13. The revisionist had filed statements recorded by I.O. Under Section 161 CrPC during the investigation. In the light of discussed legal position, this contention of the revisionist side is not acceptable that learned Additional Sessions Judge had committed error while not properly appreciated the statement under Section 161 Cr.P.c.. Admittedly, the I.O. of the case, had not been examined so far in the sessions trial. Therefore, statement under Section 161 Cr.P.C. recorded during investigation are not proved. This statement in any case can be read for contradiction of the evidence of prosecution witnesses. The trial court is not accepted to go through the statements under Section 161 CrPC at the time of exercising the powers under Section 319 CrPC. Therefore, there appears no illegality or error committed by learned Additional Sessions Judge at the time of passing of the impugned order. The trial court should have appreciated only those evidences which were adduced before it after framing of the charge for the purpose of disposal of the application under Section 319 Cr.P.C. This was done by the trial court in this case. Therefore, there appears no illegality, error or irregularity in passing of the impugned order or carrying out the proceedings of the trial court. Therefore, this revision is dismissed.