Vikas And 2 Others vs State Of U.P. And Anr.
2016 Latest Caselaw 2937 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 16
 

 
Case :- CRIMINAL REVISION No. - 1474 of 2016
 

 
Revisionist :- Vikas And 2 Others
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Dhiraj Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

By means of this Criminal revision the revisionists have challenged the legality and correctness of the order dated 6.4.2016 passed by learned Additional Sessions Judge, Court No. 4, Saharanpur, in S.T. No. 730 of 2013, arising out of Case Crime No. 223 of 2013, State of U.P. Vs. Ram Kumar and others, by which the learned trial court while exercising its powers u/s 319 Cr.P.C. has summoned the revisionists to face the trial for the offence under section 302, 201 I.P.C.

Heard learned counsel for the revisionists and learned AGA on admission and perused the available record.

The submission of learned counsel for the revisionists is that the court below has passed the impugned order illegally and arbitrarily without considering the facts and circumstances of the case and without keeping in view the legal position. It has further been submitted that the medical report of the deceased clearly suggests that he has received only one injury on his neck. However, the learned trial court without assigning any proper reason, has summoned the revisionists, ignoring the legal position that on the mere existence of a prima-facie case, no one can be summoned under section 319 Cr.P.C. unless and until, evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the person sought to be added as an accused.

Learned counsel for the applicant has placed reliance on the recent verdict given by the Apex Court in the case of Hardeep Singh Vs. State of Punjab and others [2014 (1) JIC 539(SC)] and has argued that the test that has to be applied before summoning a person u/s 319 Cr.P.C. is one, which is more than a prima-facie case as is to be seen at the time of framing of the charge but short of satisfaction to the extent that evidence if goes unrebutted would lead to conviction. It has also been submitted that the court should refrain from exercising power u/s 319 Cr.P.C. and this extra ordinary jurisdiction should be used sparingly and only if, compelling reasons exist for taking cognizance against such person against whom even the charge sheet has not been submitted by the police.

Learned AGA has contended that this revision is without any force and is liable to be dismissed at the admission stage because the Apex Court in Hardeep Singh's case (supra) has issued clear guidelines and has set at rest all the controversies in this regard.

A perusal of the available record shows that the revisionists were named in the FIR but after conclusion of investigation the I.O. did not submit charge sheet against them and submitted charge sheet against three other persons, who were not even named in the FIR. However, when the trial commenced and statement of prosecution witnesses were recorded the names of the revisionists surfaced in their statements. On over all assessment of the evidence at the time of dictating judgment the learned court below found that involvement of the present revisionists in the occurrence cannot be ruled out in wake of the evidence led by prosecution. Hence it summoned the revisionists by the impugned order.

In the case of Hardeep Singh (supra) the Apex Court has set at rest the entire controversy with regard to the scope and extent of Section 319 Cr.P.C. which had arisen due to variety of views having been expressed by several High Courts and also by the Supreme Court. Noticing the conflicting views between the two judgements of the Hon'ble Supreme Court in the case of Rakesh vs. State of Haryana, 2001 (2) JIC 757 (SC) : AIR 2001 SC 2521; and Mohd. Shafi vs. Mohd. Rafiq & another, 2007 (2) JIC 490 (SC), a doubt was expressed about the correctness of Mohd. Shafi's case (supra) which led to the framing of following five questions by Constitutional Bench in Hardeep Singh case:-

1. What is the stage at which power under Section 319 Cr.P.C. can be exercised?

2. Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

3. Whether the word "evidence" used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

4. What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood convicted?

5. Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

Question No. 2 and 4 are relevant for the present case.

Answering the aforesaid questions, the Hon'ble Constitutional Bench of Supreme Court expressed its clear view that neither cross-examination of witness is required before summoning an additional accused under section 319 Cr.P.C., nor any categorical finding to the affect that in all likelihood the person summoned may be convicted, is necessary before exercising such power. According to Hon'ble Apex Court:-

"What is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub section (4) of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses. Therefore, even on the basis of Examination-in-chief, the court can proceed against a person as long as the court is satisfied that the evidence appearing against such person prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by cross-examination, undoubtedly in itself, is an evidence.

In view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination-in-chief and Court does not need to wait till the said evidence is tested on cross-examination.......There is no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused...........

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."

In wake of the above cited legal position, there appears no substance in the arguments advanced by learned counsel for the revisionists that the revisionists have been wrongly summoned without cross-examination of witnesses and without any express view by the court below that there is likelihood of their conviction.

Therefore, the revision has no force and it is accordingly dismissed.

However, considering the submissions advanced by learned counsel for the revisionists, it is directed that in case the revisionists appear before the court concerned within thirty days from today and apply for bail, the same shall be heard and disposed of expeditiously by the courts below in view of the settled law laid by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. Reported in 2005 Cr.L.J. 755 and affirmed by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

Order Date :- 24.5.2016

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