Vinay Kumar Sharma vs State Of U.P. & Another
2017 Latest Caselaw 6936 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 

 
Case :- CRIMINAL REVISION No. - 3275 of 2017
 
Revisionist :- Vinay Kumar Sharma
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Rajiv Lochan Shukla,Ajay Shandilya
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

Two supplementary affidavits, filed today by learned counsel for the revisionist are taken on record.

The present revision has been preferred against the order dated 10.7.2017 passed by learned Additional Sessions Judge/Fast Track Court No. 2, Mathura in S.T. No. 543 of 2015 (State Vs. Sita Verma) under Section 302 I.P.C., Police Station Govind Nagar, District Mathura whereby the application 15-Ka moved by the informant (opposite party no. 2) under Section 319 Cr.P.C. has been allowed and the revisionist has been summoned to face trial under Section 302 I.P.C.

Heard Sri Rajiv Lochan Shukla, learned counsel for the revisionist and learned A.G.A. Perused the record.

The contention of learned counsel for the revisionist is that no offence against the revisionist is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. Learned counsel pointed out towards certain documents and statements in support of his contention.

Per contra learned AGA has opposed the prayer of the applicant by submitting that after the decision, rendered by Constitution Bench of Hon'ble Apex Court in Hardeep Singh's case, the law regarding summoning under Section 319 Cr.P.C. has been well settled. Therefore, the present revision is without any force and is liable to be dismissed at the admission stage itself.

Having heard learned counsel for the applicant and learned A.G.A. and keeping in view the facts and circumstances of the case, this Court is of the considered view that the instant application is liable to be dismissed. The reasons are as follows :-

A Five Judges bench of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others [2014 (1)JIC 539 (S C)] 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 rendered in the cases 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 vs. Mohd. Rafiq & another, 2007 (2) JIC 490 (SC) 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 chargesheeted or who have been discharged.

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. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. Provided from the evidence it appears that such person can be tried alongwith the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Section 300 an 398 Cr.P.C. has to be complied with before he can be summoned afresh."

Now testing the legality and correctness of the impugned order on the anvil of legal principles as cited above, the impugned order, certified copy of which has been filed today by means of supplementary affidavit, clearly shows that the learned Additional Sessions Judge, has discussed in detail all the evidence which were available against the revisionist at the time of his summoning as additional accused. Three prosecution witnesses including the first informant (son-in-law of the deceased) (P.W. 1), son of the deceased (P.W. 2) and neighbour of the deceased (P.W. 3) had already been examined at length by that time in this case, all of whom had categorically stated about the culpability of revisionist in their statements. Besides it there was documentary evidence in shape of some applications written by deceased to S.S.P. The CCTV footage was also available to show the presence of revisionist at the spot, moreover, all the witnesses had identified the revisionist in the CCTV footage. The impugned order also shows that during investigation the police had found the revisionist guilty and even conducted the proceedings under Sections 82 and 83 Cr.P.C. against him. The Final Report submitted by the police had not been accepted by the court till the passing of impugned order. Under these circumstances, the learned court below, finding sufficient prima facie evidence against the revisionist, rightly allowed the application under Section 319 Cr.P.C.

There does not appear any substance in the arguments advanced by learned counsel for the revisionist. The revision lacks merit and it is accordingly dismissed.

At this juncture, learned counsel for the revisionist prayed that the revisionist is ready to surrender before the court and to move bail application but a time of 30 days be granted to him and the court below be directed to consider his bail application expeditiously.

The revisionist is directed to surrender before the court below within 30 days from today. If the revisionist surrenders within the aforesaid period and applies for bail, the court below is directed to decide his bail application expeditiously.

For the aforesaid period of 30 days only which, in no case, shall be extended any further, no coercive action shall be taken against the revisionist. In case of default the court below will be at liberty to take coercive measures against the revisionist.

Order Date :- 16.11.2017

S.B.