Amit Tripathi And 2 Others vs State Of U.P. And Another
2017 Latest Caselaw 7524 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 48
 

 
Case :- CRIMINAL REVISION No. - 3608 of 2017
 

 
Revisionist :- Amit Tripathi And 2 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Rajiv Lochan Shukla,Vikram Singh Shrivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

This Criminal Revision has been preferred against the judgment and order dated 31.10.2017 passed by the Additional Sessions Judge, Court No. 3, Jhansi, in S. T. No. 269 of 2016, State Vs. Amit Awasthi, u/s 304, 201 I.P.C., P.S. Babina, District Jhansi, whereby the revisionists have been summoned u/s 319 Cr.P.C. to face trial.

Heard Mr. V. P. Srivastava, learned Senior Advocate, assisted by Mr. Vikram Singh Shrivastava, learned counsel for the revisionists and learned AGA for the State. Perused the record.

It is contended by learned counsel for the revisionists that although the F.I.R. in this case was lodged by the widow of the deceased against four named accused persons u/s 302, 201, 394/34 I.P.C., however, the police after investigation, submitted charge sheet only against one accused Amit Awathi u/s 304 and 201 I.P.C. and submitted final report against the rest three i.e. the present revisionists because the Investigating officer found nothing incriminating against the revisionists. However, in the trial court, when the widow of the deceased Smt. Saroj Solanki was examined as PW1 and she made specific allegations against the revisionists, an application u/s 319 Cr.P.C. was moved by the prosecution on 16.9.2017 with prayer to summon the revisionists to face trial along with chargesheeted accused and the learned trial court without looking properly into the material on record and without application of mind, allowed that application. Learned counsel for the revisionists has further contended that the revisionists have absolutely no role in the alleged murder of the deceased, all of them are innocent and it was due to this reason that they were not charge sheeted but the court below, by the impugned order, has wrongly summoned them, therefore, impugned order be set aside and the revision be allowed.

Placing reliance on the law laid down by the Hon'ble Apex Court in the landmark judgment of Hardeep Singh Vs. State of Punjab, (2014)3 SCC 92 and a recent judgment rendered by the Hon'ble Apex Court in Brijendra Singh and others Vs. State of Rajasthan, (2017)7 SCC 706, learned Senior counsel has vehemently argued that the discretionary power given to a court u/s 319 Cr.P.C. is an extra ordinary one, which has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction for summoning the accused persons, who were not charge-sheeted, should be more than the degree of satisfaction, which is warranted at the time of framing of charges. Learned counsel has contended that according to the guidelines as laid down by the Hon'ble Apex Court, the power u/s 319 Cr.P.C. should not be exercised in a casual and cavalier manner unless strong and cogent evidence against a person is laid before the court. The prima-facie opinion, which is to be formed, under Section 319 Cr.P.C., requires stronger evidence than mere probability of his complicity.

Per contra learned AGA has vehemently opposed the revision by contending that the court below has rightly summoned the revisionist by the impugned order, after considering the entire facts and circumstances of the case. Learned AGA has contended that the learned court below has discussed in detail the facts and circumstances of the case, the evidence led by PW1/ complainant and after reaching to the degree of satisfaction as required u/s 319 Cr.P.C., has passed the impugned order in which no interference is required by this court and the present revision is liable to be dismissed at the admission stage itself.

Considered the rival submissions of the parties.

The facts in brief as narrated in the FIR, the statement of widow of deceased recorded u/s 161 Cr.P.C. and the testimony of widow recorded before the trial court as PW1, copies whereof have been annexed as Annexure nos. 2, 3 and 5, respectively, to the affidavit filed in support of the revision, disclose that on 23.9.2015 at 7 O' clock in the morning, the husband of PW1 Sm. Saroj Solanki, deceased Dashrath Singh Solanki had gone to Sewadha M.P. by a hired taxi taking with him Rs. Two lacs in cash. The driver of taxi was Amit Awasthi and its owner was Amit Tripathi. Deceased was the proprietor of Ratangarh Construction Company and was working for excavation of sand in Chatarpur Teekamgarh with the revisionist no. 3, Pushpendra Singh as a partner. Three months ago accounting was done between them and deceased was found entitled to receive Rs. One Crore from Pushpendra Singh. At that time Pushpendra Singh had called the deceased along with the papers to clear the accountability. But Pushpendra Singh and his brother-in-law along with other accused, instead of payment of dues, committed marpeet with him and torn out the papers. When the deceased was going to lodge report at Police Station Teekamgarh, the other partner Datar Singh prevented him and took guarantee to pay Rs. 60 lacs and Pushpendra Singh and Datar Singh had promised to pay the remaining Rs. 40 lacs within 15 days. The deceased on returning home had told the entire incident to his wife/ first informant. Through revisionist no. 1, Amit Tripathi (owner of taxi), an agreement to purchase the house of one Anil Sharma for Rs. 32 lacs was agreed upon between them but when the deceased talked to the owner of the house at NOIDA, it was revealed that purchase price of the house was only Rs.28,22,000/- and Rs. 3,78,000/- was being taken by revisionist no. 1 Amit Tripathi as commission. Due to this, dispute took place between Amit Tripathi and the deceased. Amit Tripathi had threatened the deceased that he would not be in a position to live in that house. The deceased had kept Rs. 30 lacs with revisionist no. 2 Mahesh Malliya for the purchase and registry of that house. The deceased had the last talk with his daughter Sonam on 23.9.2015 at 1.30 P.M., however, after that there was no contact between them. Amit Tripathi informed the daughter of the deceased that her father is at M.P. and gave him the number of his driver Amit Awasthi. When the daughter rang on the mobile of driver, he informed that her father was sleeping and started laughing. She also heard the laughing sound of 2 or 3 persons in the background.

In the evening revisionist no. 1 Amit Tripathi came to the house of the deceased and informed his wife that the deceased had gone to ease himself in the jungle but when he did not return, his driver returned with taxi.

The aforesaid statement raised a doubt in the minds of the widow and the daughter and they went to the jungle with the driver and owner of taxi and tried to search the deceased. The driver also helped in search, but when they failed, they lodged a missing report at Police Station Babina.

At about 4.00 A.M. in the early morning, the police informed that the body of the deceased was traced out and asked them to reach the postmortem house at Jhansi. The police also informed the widow that the driver Amit Awasthi had killed him by shooting. On reaching postmortem house she found the dead body of her husband. Thereafter the wife of the deceased lodged the first information report naming four accused persons namely Pushpendra Singh, Mahesh Malaiya, Amit Awasthi and Amit Tripathi. However, the police after investigation submitted charge-sheet only against one accused Amit Awasthi, who was the driver of the vehicle.

On a perusal of the aforesaid statement of the widow (PW1) it is clearly evident that she during her testimony before the trial court has reiterated the aforesaid story, clearly indicating that the real motive to commit the murder of her husband was with the present revisionist and not with the driver and the driver only had assisted them. Although, no opinion can be expressed at this stage by this court on the merits of case but the prima-facie evidence available is certainly more that what is required for framing of charge.

In the case of Hardeep Singh cited above, the Hon'ble Apex Court has observed that the court should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time the guilty are brought to book under the law.

According to Hon'ble Apex Court Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.

It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.

In Hardeep Singh's case (supra) the Hon'ble Apex Court has also clarified the meaning of 'evidence' u/s 319 Cr.P.C. by holding that the court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence.

Relying one the law laid down by Hon'ble Court in the case of Brijendra Singh (supra) learned counsel for the revisionists has contended that as the Hon'ble Apex Court has set aside the order, summoning the additional accused persons u/s 319 Cr.P.C., so the present revisionists are also entitled for the same treatment on the basis of the aforesaid law laid down by the Hon'ble Apex Court.

The revisionist cannot be given any benefit out of the aforesaid judgment of Brijendra Singh (supra) as the facts of the case before the Hon'ble Apex Court were entirely different from the facts of the present case. In the Brijendra Singh's case the Investigating Officer had found that the appellants were in Jaipur city at the time of occurrence whereas the occurrence had taken place at Kanaur City situated at a distance of 175 K.M. From Jaipur. The statements of the complainant and the other witnesses were also found doubtful and the appellants' plea of alibi was found to be correct. Under these circumstances the Hon'ble Apex Court held that despite the availability of a plethora of evidence collected by the Investigating officer during investigation suggesting otherwise, the trial court, without looking into the evidence regarding plea of alibi, summoned the appellants u/s 319 Cr.P.C.

Now returning back to the case in hand, the facts are not such in the present case. The two statements of the widow, recorded by the investigating officer under section 161 Cr.P.C. and before the court are consistent and corroborate each other.

Moreover, the revisionists have the opportunity to move a discharge application before the trial court, there is no illegality or irregularity in the order impugned. The revision is liable to be dismissed at the admission stage itself and is accordingly dismissed with liberty to the revisionists to move a discharge application at the appropriate stage of trial before the appropriate court.

At this juncture learned counsel for the revisionists submitted that some time be granted to the revisionists to surrender before the court and the trial court be directed to consider their bail as expeditiously as possible.

Learned AGA has no objection against the aforesaid prayer.

The revisionists are granted a time of thirty days from today to appear before the trial court. It is further directed that in case they appear before the trial court within the aforesaid period and apply for bail, their bail application shall be disposed of by the trial court as expeditiously as possible.

For a period of thirty days from today no coercive action shall be taken against the revisionists.

Order Date :- 1.12.2017/Pcl