Ravi Agarwal vs State Of U.P. & Another
2015 Latest Caselaw 2443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 23
 

 
Case :- CRIMINAL REVISION No. - 2311 of 2011
 

 
Revisionist :- Ravi Agarwal
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Sunil Kumar
 
Counsel for Opposite Party :- Govt. Advocate,M. Sharma,Vinod Sinha
 
Hon'ble Pramod Kumar Srivastava,J.

1.This revision has been filed against the order dated 11-04-2011 passed by Additional Sessions Judge, FTC, Court No. 6, in ST No. 515/ 2009 State Vs. Gaurav & others by which application 35-Kha under section 319 CrPC summoning one Ravi Agarwal as accused was allowed.

2.During trial of S.T. No. 515 of 2009, after framing of the charge, the prosecution side had examined five witnesses, namely, PW- Ashok Kumar, PW- 2 Damodar Prasad, PW-3 Naresh Kumar Sharma, PW-4 Babu Lal Sharma and PW-5 S.I. Charan Singh. After that prosecution side had moved application 35- Kha under Section 319 Cr.P.C. With prayer that from the evidences adduced , the name of Ravi Agarwal has surfaced also present who had conspired with the accused persons and threatened to murder. Therefore, in the light of statement given by aforesaid examined witnesses in the trial for the offence punishable under Section 120B, 506 and 307 IPC.

3.After hearing the parties learned Additional Sessions Judge had allowed application 35-Kha by its order dated 11-04-2011, against which present revision has been preferred.

4.Learned counsel for the revisionist contended that impugned order of summoning is erroneous and perverse because out of four witnesses of facts none had given any statement that can lead to inference of involvement of revisionist in offence relating to this case. From the evidence of examined witnesses, if accepted in toto, nothing more than motive may be proved, and for that reason powers u/s 319 CrPC cannot be exercised. He also contended that trial court had erroneously relied on statements of witnesses allegedly given before the Investigating Officer u/s 161 CrPC during investigation. Since impugned order of allowing the application u/s 319 CrPC has been passed without considering the law and evidences adduced before the court, therefore such erroneous order should be set aside.

5.Learned counsel for Respondent no.-2 had 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.In Jagannath Choudhary & ors vs. Ramayan Singh & another, AIR 2002 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."

8. A perusal of evidences adduced in the original trial reveals that out of four witnesses of facts so far, none had said anything that may relate the revisionist with commission of charged offence in the case. If their statements are 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 revisionist in the alleged incident relating to charge. The personal opinion without any basis cannot be accepted the evidence of commission of any offence. In these circumstances this contention of learned counsel for the revisionist 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.

9.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."

10.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."

11.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."

12.A perusal of the record reveals that this contention of counsel for the revisionist is not incorrect that learned Additional Sessions Judge had considered statements of witnesses 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 witnesses allegedly given to IO when such statements which are yet to be proved.

13.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.

14.In fact, the impugned order appears to have been passed after ignoring the direct evidence available on the record and on basis of personal opinion of witnesses. 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 11.04.2011 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 35-Kha under section 319 CrPC in accordance with law.

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

Order Date :- 18.9.2015

Sanjeev