Tej Singh vs State Of U.P. & Another
2018 Latest Caselaw 1802 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									 A.F.R.			
 
                                                                                  Reserved
 

 

 
Case :- APPLICATION U/S 482 No. - 30899 of 2017
 

 
Applicant :- Tej Singh
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Prakash Chandra Srivastava,Rajkamal Srivastava Nishi,Vishnu Prakash
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajul Bhargava,J.

1. Heard Sri Prakash Chandra Srivastava, learned counsel for the applicant and learned Additional Government Advocate appearing for the State and perused the record.

2. This criminal misc. application under Sections 482 Cr.P.C. has been filed by the applicant Tej Singh for quashing proceedings of S.T. No. 1555A of 1996. The applicant has been summoned under Section 319 Cr.P.C. to face trial, by the court below by an order dated 15.10.2011. This order has been termed as illegal and therefore the relief for quashing the proceeding has been sought.

3. The facts, briefly stated, are:

The prosecution case in a nutshell is that a first information report was lodged by Deopal, the brother of the deceased against six named accused including the applicant and two unnamed police constables in respect of an incident dated20/21.7.1995 on 21.7.1995 stating therein that in the night of 20.7.1995, his brother Anand Swaroop (victim) went to the market for purchasing domestic articles with Sunil his nephew and Mahendra Singh cousin on a Motor Cycle No. DLS806(Rajdoot). When they were coming back after purchasing goods, they were stopped on the way by two police constables the applicant and one S.I. Raja Rama Suman who were wearing police dress. Anand Swaroop, Sunil and Mahendra were detained at police station from 6 O' clock to 8 O' clock in the evening. At about 8.00 Mahendra and Sunil were allowed to go while Anand Swaroop was detained at the police station concerned on the pretext that he will be released after furnishing sureties etc. Mahendra and Sunil reached at their village and narrated the entire story to the village Pradhan and other persons. The village Pradhan sent his brother Devendra Singh with Mahendra, Sunil and Munni Devi. They all inquired the matter from the police personnel at the police station concern including the applicant S.I. Tej Singh. They were assured that Anand Swaroop will be freed in the morning. Meanwhile a police jeep came in which constable Tej Singh and Sub-Inspector Raja Ram Suman were seated on the front side and the other persons namely Game. Devender and Jaipal and some constables were seated in the Jeep in the back side catching hold of Anand Swaroop. The police personnel threw away the victim Anand Swaroop from the jeep with the aid of other accused persons and disappeared from the spot. The said incident was witnessed by the persons who had gone at the police station concerned to know the whereabouts of the victim. They informed the said incident on which a number of persons reached at the place of occurrence where they found the victim Anand Swaroop dead. The corpus of the victim was taken into custody and after completing all formalities was sent to the mortuary for autopsy. The Investigating Officer after conducting investigation submitted the charge-sheet against Gamme alias Gaman, Devendra, Ompal, Jaipal, Mahendra Singh, Sunil and two named accused, Tej Singh (applicant) and Ramji Lal who were police personnel were not charge-sheeted.

4. The applicant was summoned by the learned Additional Sessions judge on the basis of statement of mother of the deceased, Smt. Sharda Devi PW 1 and Dev Pal Singh PW 2, the first informant recorded in Sessions Trial No. 1555 of 1996, pursuant to an order dated 11.08.2005 on an application (102Kha) under Section 319 Cr.P.C. moved by the learned Assistant District Government Counsel. The applicant approached this Hon'ble Court be means of Criminal Misc. Application No. 23011 of 2009 (Tej Singh Vs. State of U.P. and another) which was heard and allowed by another Bench of this court vide order dated 27.10.2009 whereby the order dated 11.08.2005 passed by the Additional Sessions Judge Court No.11, Meerut was quashed. The court below was directed to consider the application for prosecution 102 Kha afresh keeping in view the law laid down by Hon'ble Apex Court in the case of Mohd. Shafi Vs. Mohd. Rafiq and another 2007 (2) JIC 490 (SC) and Hardeep Singh Vs. State of Punjab & others 2009 (1) JIC 302.

5. It is pertinent to mention here that the applicant though working in police department in State of Uttar Pradesh did not appear before the court below for more than four years after being summoned under Section 319 Cr.P.C. on 11.08.2005 and challenged the order before this Court in an application under Section 482 Cr.P.C. being Application No.23011 of 2009. The Court without affording any opportunity to the State to file counter affidavit set aside the order as noted above.

6. However, between the dates noted above (11.08.2005 date of summoning additional accused and 27.10.2009 date of order passed by this Court) things changed in as much that because of continued non- appearance of the previously summoned additional accused, Tej Singh and Rajaram (and one more absentee but charge sheeted accused Devendra) despite issuance of Non-Bailable Warrants their file was ordered to be separated from original S.T. No. 1555 of 1996 on 26.05.2009 and that is how a separate file S.T. No.1555A of 1996 came to be registered. On course, all the original documents remained with the S.T. No.1555 of 1996.

7. Applicant/accused Tej Singh armed with High Court's favourable order appeared before the court below and got his warrant cancelled. The S.T. No.1555A of 1996 was fixed for re-hearing of application 102kha moved by the prosecution side under Section 319 Cr.P.C. These facts are also not disputable that by that time several prosecution witnesses stood examined in S.T. No. 1555 of 1996. The proceedings in the parent file i.e. S.T. No. 1555 of 1996 proceeded at comparatively fast pace and the trial of the rest of the accused persons got concluded and they were acquitted by a judgement dated 09.06.2011 with clear cut observations and findings in the judgement itself about the complicity of applicant Tej Singh and one other accused Raja Ram and also about deliberate, carefully planned, botched up investigation with an ulterior motive of exonerating Tej Singh etc. at the stage of investigation.

8. A fresh order under Section 319 Cr.P.C. was passed on 15.10.2011 summoning the present applicant, Tej Singh and another in S.T. No. 1555A of 1996 after conclusion of trial in S.T. No. 1555 of 1996, after re-hearing on the application No.102Kha under the directions of High Court.

9. The main thrust of argument of the applicant is that no summoning order could be passed by the court below after conclusion of trial in S.T. No. 1555 of 1996 and that as the previous summoning order stood quashed, hence, the separated case could not continue in absence of any fresh summoning order and that the trial court had no evidence in the file of S.T. No.1555A of 1996 to depend upon, to pass the subsequent summoning order, Hence, subsequent summoning order and continuance of proceedings on the basis of that illegal summoning order is nothing but an abuse of the process of law.

10. However, admittedly applicant Tej Singh approached the High Court and the preferred a Criminal Revision No.5399 of 2011 against his re-summoning on 15.10.2011, but the same was dismissed with a detailed order dated 24.02.2011 by Hon'ble Nahid Ara Moonis, J. and with a direction to the applicant to surrender before the court below within 30 days. The applicant not being satisfied with the order of the High Court applied for recall of order of High Court, which was also rejected by this Court by an order dated 04.05.2012. The applicant preferred a Special Leave Petition before the Apex Court which was clubbed with Criminal Appeal No.750 of 2008, Hardeep Singh Versus State of Punjab and a few more SLPs for interpretation on several points pertaining to Section 319 Cr.P.C. and which stood decided on 10.01.2014. The S.L.P. NO. 4503-4504 of 2012 preferred by the applicant before the Hon'ble Supreme Court was dismissed on 05.02.2014, in the light of views expressed by the Constitutional Bench of the Supreme Court in the Hardeep Singh Versus State of Punjab (judgement dated 10.01.2014) which is quoted below:

"Heard learned counsel for the parties.

These matters stand concluded by the decision of the Constitution Bench of this Court in the case of Hardeep Singh Vs. Sate of Punjab and others and connected matters-2014 (1)SCALE 241.

These special leave petitions are dismissed accordingly."

11. A Review Petition (Criminal) No (s).354--355 of 2014 were filed by the applicant against order dated 05.02.2014 which were also dismissed vide order dated 3.7.2014 by the following order:

"We have gone through the review petitions and the relevant documents. In our opinion, no case for review is made out.

The review petitions are, accordingly, dismissed."

12. For the sake of argument supposing that applicant can re-agitate the points in issue, again before this Court, the matter can be viewed from another angle.

13. This fact should be borne in mind that merely separating the file of an accused for the reason that he failed to appear before the Court, is quite different from separating the case of an accused for other essentially legal reasons. Former is a procedural matter while the latter is a legal one. Legally a case can be separated from another case for the reason that no joint trial should be held. However, where , to avoid the delay in trial, caused by continued long absence of any one or more of the accused persons, the file of absconded persons is separated as a matter of procedural convenience, it is altogether a different scenario. In such cases no fresh Sessions Trial number is given to the separated file, instead only a supplementary number is given to the separated Sessions Trial and same is the case in present matter. The separated file still owes its existence to the parent file and is deemed attached to it for practically everything including prosecution case, original prosecution papers and the evidence adduced therein. I may record that as Sessions Trial No.1555A of 1996 against Tej Singh, etc. got registered after its bifurcation from Sessions Trial No. 1555 of 1996, hence despite being a separate file, it remained dependant on the prosecution papers, case diary, evidence of witnesses adduced therein, etc. contained in Session Trial No.1555 of 1996. It may be noted that when a case is bifurcated on account of abscondence of some of the accused for all practical purposes it remains attached to its original stem. Therefore, for summoning the additional accused under Section 319 Cr.P.C. and for reaching prima facie satisfaction thereof, the court is empowered to look into the paper and the evidence available in Session Trial No.1555 of 1996 i.e. its parent trial. Though, for the purposes of trial fresh evidence shall be recorded in Session Trial No.1555A of 1996.

14. This fact cannot be ignored that when previous summoning order was passed, it was passed in the parent file of S.T.No. 1555 of 1996 on the basis of evidence on record, hence bar if any in respect of taking cognizance against accused, Tej Singh as, prima facie, his involvement in the custodial death of deceased was on record, it stood lifted at that very time.

15. I may further record that the argument of the applicant fails that when the previous summoning order was quashed by this Court, the proceedings in 1555A of 1996 could not continue for following reasons.

a) Firstly, the quashing order was not unconditional as the High Court had directed the court below to re-hear and pass a fresh order in the light of then prevailing views of the Supreme Court in Mohd.Safi and Hardeep Singh case of 2009.Hence, there was no question of dropping the proceedings. Moreover, at that point of time proceedings in S.T. No. 1555A of 1996 were not being conducted for Tej Singh alone but was being conducted for three accused persons.

b) Secondly, established legal view is that cognizance of an 'offence' is taken and not of the accused. The Constitution Bench in Hardeep Singh case referred to judgement of Supreme Court in Raghubans Dubey Versus State of Bihar AIR 1967, Supreme Court 1167, wherein it was held "... once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence, it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence".

16. Hence, if during the inquiry/trial proceedings the court noticed the complicity of another person it could summon that another person and then cognizance relates back to original cognizance order. That is why Section 319 (4) (b) says that subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

17. The argument of the applicant is that while summoning the accused Tej Singh, the court below could not depend upon the evidence recorded in and judgment delivered in 1555/1996. This argument also fails in view of the verdict given in Hardeep Singh case by the Constitution Bench of Apex Court. This question can be answered easily once it is decided that whether the 'material' in the parent file can be looked into for the purpose of inquiry for summoning u/s 319 Cr.P.C.? This question can be dealt with by a different angle. Had the facts been different and suppose summoning order had been passed before the conclusion of the trial of rest of the accused, then by reading into evidence recorded in the connected case the court could easily have passed the summoning order and perhaps then no questions would have been asked. Here again this fact can be pointed out that previous order of summoning was passed on the basis of evidence of PW-1 and PW 2.

18. The question arises that whether or not the court was empowered to look into evidence of PW-1 and PW2 the second time when it re-heard the matter? Whether it can be said that evidence of PW-1 and PW 2 became redundant just because case of other accused got decided? In fact inquiry started against Tej Singh etc. much earlier and it continued irrespective of the fact that the other case got decided meanwhile. The continuance of proceedings against Tej Singh etc. in 1555A/1996 was not at all affected by the verdict pronounced in the other case which can at best be treated as just an offshoot of the main session trial from the same point of time when the case of Tej Singh was separated. Similarly separated case was another offshoot which remained unaffected by the fact of pronouncement of the judgment. With the pronouncement of the judgment it cannot be said that everything got buried along with it, for the simple reason i.e. separating the file is not equivalent to separating the session trial. It is like two branches coming out of common stem. When once cognizance of offence is taken the trial court is seized of the matter till each accused person's trial gets over. Analogy can be drawn with following example. Suppose a person never appears before a court and his file is separated and later on he is declared absconder and meanwhile the parent case gets concluded, then whether it cannot be looked into for the purpose of relying on the evidence as contemplated u/s 299 Cr.P.C? The provision in this regard as envisaged under Section 299 Cr.P.C. is crystal clear. I am given an understanding that where accused is declared absconder, separating his file is a routine practice in the trial court. Whether the court could not look into the evidence oral or documentary recorded during the trial for rest of the accused, the evidence collected during the investigation, the prosecution paper which obviously formed part and parcel of 1555/1996? My view is that then none would have taken any objection to the fact of looking into evidence contained in the parent file. The parent file 1555/1996 continued to give placental feeding to the separated file as well. Hence, this fact that the summoning order was passed after conclusion of trial of rest of the accused, cannot be given more than required importance. In Shashikant v. Tarkeshwar 2002(2)ACR 578 SC, the trial court summoned the accused u/s 319, however, the High Court set aside the order just because by then the case of original accused had concluded but the Hon'ble Supreme Court restored the trial court's summoning order and explained the meaning of tried together".

19. In order to appreciate the evidenciary value of statement/evidence of witnesses recorded in the absence of accused on account of his abscondence, though, exactly the contingency as provided under Section 299 Cr.P.C. does not exist against the applicant in the present case, however, the said provision can be referred in order to appreciate as to what extent the evidence is adduced in absentia of the accused can be used for the purposes of an inquiry under Section 319 Cr.P.C. or for trial. Section 299 Cr.P.C. reads as under:-

"299. Record of evidence in absence of accused-(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable."

20. The interpretation of Section 299 Cr.P.C. came up for consideration in the case of C.B.I. Vs. Abu Salem Ansari & Anr. before the Hon'ble Apex Court. In this case, the first respondent/accused absconded and was arrested in a foreign country. He was extradited and brought to India on 11.11.2005 and by that time the trial of other accused was over. The prosecution wanted to rely on the evidence recorded by the designated court in the earlier trial conducted wherein the first respondent was not present as an accused. By the impugned order the learned Judge-designated court held that the prosecution may rely on the earlier evidence recorded in the earlier trial against the first respondent subject to establishment of existence of any of conditions precedent as described. The Hon'ble Apex Court held that:-

"As regards the first respondent, sub-section (1) of Section 299 would apply as he, an accused person, was absconding, his case is already split up and has to undergo the trial. Obviously, the evidence adduced in the earlier trial cannot be used against the first respondent except as provided in sub-section (1) of Section 299 Cr.P.C. In the circumstances of the absconding accused appears again, the prosecution witnesses have to be examined afresh. But, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, the prosecution would be justified in relying on the evidence already on record taken in the earlier trial in the absence of the absconding accused.

In the present case, sub-section (2) of Section 299 Cr.P.C. has no application. Therefore, we make it clear that the prosecution may rely on the earlier evidence recorded in the earlier trial against the first respondent subject to establishment of existence of any of the conditions precedent as described in first part of Section 299 Cr.P.C."

21. Thus, from the observations of the Hon'ble Apex Court in the above noted case, it can safely be recorded that evidence of witnesses in absentia of an accused does not become redundant. Of course, the same can be read in evidence against accused subject to the limitations and conditions imposed under Section 299 Cr.P.C. Learned counsel for the applicant has laid much emphasis on the phrase "during inquiry or trial" as provided under Section 319 Cr.P.C. and therefore, his submission is that the powers under Section 319 Cr.P.C. could only be exercised during the pendency of a trial. However, the situation in the present case is different. The application 102 Kha was already pending but since the same was attached with S.T. No. 1555 of 1996, perhaps it escaped the attention of the trial Judge to decide the said application before the delivery of judgment against the other accused. However, the fact remains that the evidence for the purposes of an inquiry was already in existence in the record of the parent trial i.e. S.T. No. 1555 of 1996 which has been utilized by the court below in summoning the applicant and other co-accused who are a police personnel and were not charge-sheeted.

22. When for some reason one case originating from the common stock came to be concluded earlier, all the material in it whether documentary or oral can be seen or considered in the same way as is the court empowered in a fresh case. Of course, this is not to mean that the application for summoning an accused may be moved after completion of trial itself. This case is highly distinguishable from such an eventuality, as in this case the file of Tej Singh came to be separated during the pendency of main file and the separated file merely continued beyond the completion of trial of the original accused persons due to inadvertence.

23. The Hon'ble Supreme Court has in Hardeep Singh case clearly said that the powers under 319 Cr.P.C. can be exercised at the stage of inquiry or trial. The Supreme Court also held that when powers under 319 are exercised at the stage of inquiry there can be no evidence in its strict legal sense before the court. The court at this stage, can apply its mind to material before it to find out as to whether a person whose involvement in the offence appears to be there, has been deliberately excluded or has been erroneously omitted.

24. In para 8 of the verdict the Hon'ble Supreme Court opined - the entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Sections 319 Cr.P.C.

25. In para 12 the Supreme court said - Section 319 Cr.P.C. springs out of the doctrine judex damnature 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 Cr.P.C.

26. The Hon'ble Supreme Court distinguished the word trial from the word inquiry and also clarified the meaning of this word.

27. In para 72 of the above judgment Hon'ble Supreme Court said - the inquiry by the court is neither attributable to the investigation nor to the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. It is the duty of the court to do so and therefore the power to perform this duty is provided under the Cr.P.C.

28. In my view the court below had enough material before it, oral evidence given by the prosecution witnesses in the parent case, of which the present case 1555A/1996 was an offshoot drawing oxygen and blood from the same placental cord on which ST 1555/1996 also proceeded and reached to its logical end. Hence, the conclusions reached on the basis of above material cannot be called illegal or abuse of process of law. In fact it is the other way round. The accused Tej Singh is not ready to face trial even years after his summoning for an offence which took place in the year 1995. The applicant went upto Supreme Court but failed and has now come again before this Court.

29. The present case is undoubtedly unusually rare case, highly distinguishable from others because of some peculiar circumstances. The trial court has in its judgement, given finding that the persons initially named in the FIR were deliberately exonerated by twisting the investigation in their favour. Not only this, the only persons named as eye witness of the incident were entangled by the IO during investigation and were charge-sheeted to foreclose the opportunity the prosecution might have to examine them to bring out the truth. Despite so many hurdles the trial court sifted through the evidence before it and found enough material indicating the complicity of Tej Singh in this case.

30. The question arise that had the trial court proceeded to rehear on the point of summoning u/s 319 Cr.P.C. in 1555A/1996 separately, then whether it needed fresh evidence of prosecution witnesses for coming to a conclusion? In my view, such repetition of examination of prosecution witnesses was not at all required. However, the procedure as contemplated under Section 319 (4) Cr.P.C. for de novo trial of the applicant shall be followed.

31. All the points raised by the applicant were and should be deemed to have been considered by the Hon'ble Apex Court when it dismissed the Special Leave Petition and the review petition of the applicant in the light of views given by the Constitution Bench of Supreme Court in Hardeep Singh v. State of Punjab. The petition lacks merit and is liable to dismissed.

32. The application under Section 482 Cr.P.C. moved by the applicant, Tej Singh is, accordingly, dismissed.

33. It may be observed that even as of now the applicant and other co-accused summoned under Section 319 Cr.P.C. have not appeared before the trial court and the applicant did not even comply with the order of this Court dated 5.10.2011 passed in Criminal Revision No.5399 of 2011, whereby he was directed to surrender and obtain bail within 30 days.

34. In the light of the aforesaid, the concerned court is directed to adopt all possible coercive measures to secure and procure the attendance of the applicant and other accused so that trial against them can proceed and reach to its logical conclusion.

Order Date :- 01.08.2018

MN/-