Allahabad High Court
Smt. Shilpi Srivastava vs State Of U.P. And Anr. on 14 July, 2016
Bench: Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 23
Case :- CRIMINAL REVISION No. - 1909 of 2012
Revisionist :- Smt. Shilpi Srivastava
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Manish Tiwari,Ashwini Kumar Awasthi,Vivek Prasad Mathur
Counsel for Opposite Party :- Govt. Advocate,C.D.Mishra
Hon'ble Prabhat Chandra Tripathi,J.
Heard Sri Imran Ibrahim holding brief of Sri Manish Tiwari, learned counsel for the revisionist, Sri Anand Kumar Tiwari, learned counsel for the opposite party no. 2 and learned A.G.A. for the opposite party no. 1.
This criminal revision has been filed for setting aside the order dated 28.04.2012 passed by the 6th Additional Sessions Judge, Gautam Budh Nagar in Sessions Trial No. 12 of 2011 (Case Crime No. 446 of 2008), under Section 306 I.P.C., Police Station Kasna, District Gautam Budh Nagar, whereby the revisionist has been summoned under Section 319 Cr.P.C.
It is submitted by learned counsel for the revisionist that a criminal revision no. 542 of 2012 was filed by the opposite party no.2 before this Court against the order dated 25.01.2012 passed by the learned VIth Additional Sessions Judge, Gautambudh Nagar, whereby the application filed by the prosecution under Section 319 Cr.P.C., for summoning the revisionist under Section 306 I.P.C., was rejected. The said revision was disposed of by a detailed order dated 24.02.2012 with the direction to the Court below to consider the application of the prosecution after adducing of the evidence by the complainant, thereafter, the application under Section 319 Cr.P.C., be decided, copy of order dated 24.02.2012 is annexed as Annexure-7 to the affidavit accompanying the revision. It is further submitted that after passing of the order dated 24.02.2012, summoning order has been passed whereby the application under Section 319 Cr.P.C., has been allowed. Learned counsel for the revisionist further contends that a bare reading of the statements of P.W.2 and 3 as well as copy of the suicide note would go to show that no offence under Section 306 I.P.C., is made out against the revisionist, who is the wife of the deceased. It is thus contended that summoning of the revisionist under Section 319 Cr.P.C. is bad in law.
Learned counsel for the revisionist has relied upon three decisions of the Hon'ble Apex Court in the cases of Sanju alias Sanjay Singh Sengar Vs. State of M.P., (2002) 5 Supreme Court Cases 371, Netai Dutta Vs. State of W.B. (2005) 2 Supreme Court Cases 659 and State of Kerala and others Vs. S. Unnikrishnan Nair and others, (2015) 9 Supreme Court Cases 639.
Learned counsel for the opposite party no. 2 and learned A.G.A. have opposed the submissions raised by the learned counsel for the revisionist and contended that there are ample evidence against the revisionist to summon the revisionist under Section 319 Cr.P.C., therefore, the revisionist has been rightly summoned.
I have gone through the nature of the allegations made in the application under Section 319 Cr.P.C. and oral evidence of the witnesses. It is alleged that the wife of the deceased Prabhat Srivastava has allegedly admitted premarital illicit relationship and due to this, the deceased Prabhat Srivastava was compelled to commit suicide. The learned Additional Sessions Judge while passing the impugned order has considered all the facts and circumstances of the case and has rightly summoned the revisionist under Section 319 Cr.P.C.
The above decisions relied upon by the learned counsel for the revisionist are based on different facts and they are not applicable in the present case.
The Apex court in the case of Sarojben Ashwin Kumar Shah Vs. State of Gujarat and another 2011 (74) ACC 951 has considered the principles laid down in Michael Machado and another Vs. Central Bureau of Investigation and another (2000) 3 SCC 262=2000 (40) ACC 795 (SC). In para 16 their Lordships of the Apex Court has held as under :-
"16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this court is this:
(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.
(ii) The power conferred under Section 319 (1) applies to all Courts including the Sessions Court.
(iii) The phrase "any person not being the accused" occurring in section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words , the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court.
(iv) The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word 'evidence' in Section 319 contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the Court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.
(v) The power conferred upon the Court's although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.
(vi) The Court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.
(vii) Regard must also be had by the Court to the constraints imposed in Section 319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial.
(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion."
In view of the above analysis, the impugned judgment and orders passed by both the courts below are perfectly legal and there are no illegality or perversity in the same.
The revision lacks merits and accordingly deserves to be dismissed.
Dismissed.
Interim order, if any, stands vacated.
Order Date :- 14.7.2016
Rmk.
