Umesh Kumar Dubey vs State Of U.P. And Others
2015 Latest Caselaw 2137 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 23
 
Case :- CRIMINAL REVISION No. - 4081 of 2011
 
Revisionist :- 	 Umesh Kumar Dubey
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Revisionist :- 	 S.M.A. Abdy
 
Counsel for Opposite Party :- Govt. Advocate,Rahul Kumar Tripathi
 
Hon'ble Pramod Kumar Srivastava,J.

1.This revision has been filed against the order dated 8.8.2011 passed by Additional Sessions Judge, Court NO. 3, Kaushambi in ST No. 80 of 2006, State v. Sohan Raidas and others by which application 19-Kha under section 319 CrPC summoning two persons Santosh and Dinesh as accused was rejected.

2.The informant Umesh Kumar Dubey had lodged report in police against four accused persons namely Santosh, Dinesh, Sohan and Ram Murat for inflicting injuries over him. On the basis of his report NCR was registered, but in medico-legal examination of the informant it was found that skull bone of his head was fractured, apart from other injuries. Then case crime no. 62/ 2004 was registered and investigation started, after completion of charge-sheet had been filed against only two accused Sohan and Ram Murat for offences u/ss 308, 323, 325 & 504 IPC. The said case was committed and in the court of Sessions ST No. 80/2006, State v. Sohan and others was registered in which charges were framed against two charge-sheeted accused. The prosecution side had examined two witnesses, PW-1 Umesh Kumar Dubey (injured) and PW-2 Sunil Kumar who were cross-examined. Then the prosecution side had moved application 19-Kha in court below u/s 319 CrPC for summoning Santosh and Dinesh as accused whose name have surfaced during testimony of PW-1 and PW-2.

3.After hearing the parties learned Additional Sessions Judge had rejected application 19-Kha by its order dated 8.8.2011, against which present revision has been preferred.

4.Learned counsel for the revisionist contended that trial court relied on statements of witnesses allegedly given before the Investigating Officer u/s 161 CrPC during investigation and ignored the statements of witnesses examined before it during trial after framing of the charges. He contended that learned Addl. Sessions Judge had cleverly relied one part of statement of PW-1 given in the court and another part of statement of PW-2 allegedly stated during investigation u/s 161 CrPC and passed the impugned erroneous order. Since impugned order of dismissal of application u/s 319 CrPC has been passed without considering evidences adduced before the court, therefore such erroneous order should be set aside.

5.Learned AGA refuted the contentions of the revisionist and submitted that the trial court had considered the evidences given during investigation as well as produced in the court, and after that impugned order was passed after application of mind. Therefore, revision should be dismissed.

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

7.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."

8.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."

9.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."

10.A perusal of the record reveals that this contention of counsel for the revisionist is not incorrect that learned Additional Sessions Judge has shown unwarranted cleverness in the passing of the impugned order when it had considered one part of statement of PW-1 regarding unconsciousness after receiving injuries, and then ignored the whole statement of PW-2 given in the court and only considered his statement u/s 161 CrPC which was to Investigating Officer (IO). This time he ignored the whole statement of PW-2 recorded in the court. Learned trial Judge had apparently and deliberately ignored statement u/s 161 CrPC given by informant PW-1 to IO during investigation and had read only one portion of his statement given in the court, and on the other hand he had not read statement of PW-2 made in the court and had considered only his alleged statement given to IO during investigation. Admittedly, the IO of the case had not been examined so far in the sessions trial, but learned Additional Sessions Judge had relied statement u/s 161 CrPC of witness PW-2 allegedly given to IO when such statement is yet to be proved.

11.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 if done at the time of passing of impugned order. Again at the time of exercising powers u/s 319 CrPC the trial court cannot ignore the statement of witnesses examined in support of the charge. In present case the trial court had erroneously ignored full fledged statements of the two witnesses PW-1 and PW-2 who have specifically stated about names of culprits involved in the charged incident of inflicting injuries to injured informant PW-1.

12.In fact, the impugned order passed u/s 319 CrPC appears to have been passed after deliberately ignoring the evidence available on the record in form of statements of PW-1 and PW-2, and taking into consideration the statements u/s 161 CrPC recorded by IO during investigating. Thus in trial court had acted in gross illegality and irregularity in carrying out the proceedings, and committed serious error in passing of the impugned order. Therefore this revision is allowed and the impugned order dated 08.08.2011 is set aside and the matter is remanded to the trial court with a direction to afford opportunity of hearing to prosecution and defence side and then pass order of disposal of application 19-Kha under section 319 CrPC in accordance with law.

13.Let a copy of this order be sent to the trial court immediately for ensuring compliance.

Order Date :- 4.9.2015

SKS