Jitendra Umrao vs State Of U.P. & 3 Others
2018 Latest Caselaw 1912 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 59
 

 
Case :- CRIMINAL REVISION No. - 1107 of 2016
 

 
Revisionist :- Jitendra Umrao
 
Opposite Party :- State Of U.P. & 3 Others
 
Counsel for Revisionist :- Birendra Singh,Bir Bhan Singh
 
Counsel for Opposite Party :- G.A.,M.I.Khan,M.J. Akhtar,Siya Ram Verma
 

 
Hon'ble Suneet Kumar,J.

Instant revision has been placed before this Bench along with Bail Application Nos. 42856 of 2014 and 17310 of 2015 vide nomination by the Hon'ble the Chief Justice dated 2.8.2018.

Heard Sri Birendra Singh and Bir Bhan Singh, learned counsel for the revisionist, Sri V.M.Zaidi, Senior Advocate, assisted by Sri M.J. Akhtar, learned counsel for opposite parties 2 & 3 and Sri Siya Ram Verma, learned counsel for the opposite party no. 4.

Learned counsel for the revisionist submits that revisionist lodged a first information report bearing Crime Case No. 232 of 2013, under Section 396 I.P.C. against unknown miscreants alleging that on the midnight of 1/2.8.2013 between 2 to 3 a.m., two persons, namely, Ganga Prasad (father) and Somwati (mother) were murdered and three were injured; revisionist's brother, namely, Bhupendra and Abhimanyu were seriously injured in the incident and became unconscious, were admitted for treatment; after few days on gaining consciousness, they disclosed the name of the miscreants to the brother and the Investigating Officer(IO), however, name of the miscreants namely, Auyodhaya Prasad, Sujeet and Mamta (opposite parties) were not mentioned in the statement of the injured witnesses by the IO; after investigation, charge-sheet was filed against two accused; no investigation was made against the opposite parties; during trial witnesses of fact, PW-1, PW-2 and PW-3 were examined. Bhupendra Umrao (PW-2) and Abhimanyu (PW-3) the injured witnesses; in their examination in chief have clearly deposed that the opposite parties were duly present on the date of the incident, armed with deadly weapons; opposite party no. 3, Mamta, conspired in the commission of the offence.

On an application moved by revisionist under Section 319 Cr.P.C. to summon the opposite parties to face trail, the court below by the impugned order dated 8.2.2016 rejected the application for the reason that the complaint filed by the revisionist against the opposite parties is pending before the Magistrate and the application moved by the opposite parties under Section 210 Cr.P.C. for clubbing the complaint case with police case is pending disposal. The trial court declined to summon the opposite parties merely on their being named by the witnesses in the examination in chief.

Learned counsel for the revisionist submits that the impugned order is misconceived, pendency of the complaint case cannot be a ground for rejecting the application under Section 319 Cr.P.C. The trial court has power and jurisdiction to summon the proposed accused to face trail along with the accused. Reliance has been placed on the decision of the Constitution Bench rendered in Hardeep Singh Vs. State of Punjab (LAWS(SC) 2014 119), wherein, the Supreme Court held that though only a prima-facie case is to be established from the evidence led before the court not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than, prima facie, case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.

The learned senior counsel appearing for the opposite parties submits that there is no evidence against the opposite parties; the examination-in-chief of the witnesses is not sufficient to summon the opposite parties to face trial; witnesses are yet to be cross examined and the other witnesses have not yet deposed, untill then the opposite parties cannot be summoned.

It is urged in rebuttal that in Hardeep Singh (supra) Court clarified that 'evidence' under Section 319 Code of Criminal Procedure could even be examination-in-chief and the court is not required to wait till such evidence is tested on cross-examination. The learned trial court has wrongly rejected the application of the revisionist for summoning the opposite parties, it was categorically stated in the statement of the injured witnesses that opposite parties were present on the date of incident armed and had conspired the commission of the offence. It is the specific case of the revisionist that the names of the proposed accused was immediately disclosed by the injured witness on gaining consciousness to the brother Jitendra Kumar (PW-1) who immediately disclosed the names to the Investigating Officer, however, the Investigating Officer did not record the names of the opposite parties nor investigations regarding the involvement of the opposite parties in the commission of the offence was enquired PW-1 stated that after his injured brothers gained conscious they disclosed the names of all the accused persons in the hospital including that of the opposite parties. It was further stated that he (PW-1) was not satisfied in the manner in which the investigation was carried out and the opposite parties were not included in the investigation. PW-2 injured witness categorically stated that when he had opened the door he recognized the accused persons which include the opposite parties who were armed. The Investigating Officer was informed all the names of the accused persons, it appears that the investigating officer has not investigated the crime fairly and properly. Similar is the statement of PW-3; not satisfied with the investigation his brother Jitendra filed a complaint, wherein, statements under Section 200/202 Cr.P.C. was recorded and is pending disposal.

Supreme Court in (Brijendra Singh & Ors. Vs. State of Rajasthan) relying upon Hardeep Singh (supra) clarified that under Section 319 Cr.P.C., which is an enabling provision empowering the court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgement, except during the stage of Section 207/208 Cr.P.C, the committal etc., which is only a pre-trial stage intended to put the process in to motion. The question posed before the Court was the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question was as to in what situations this power should be exercised in respect of a person named in the F.I.R. but not charge-sheeted.

The Court relied upon the observations made in Hardeep Singh (supra) that power under Section 319 Cr.P.C., is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

The Court in the facts of the case Brijendra Singh (supra) observed that "the evidence recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature".

It is urged by the learned counsel for the applicant that the ratio of Brijendra Singh (supra) would not apply to the facts of the instant case as the opposite parties were not named in the F.I.R. nor was their conduct and complicity in the commission of the offence investigated by the investigating officer, though their names surfaced in the statements of the injured witnesses which according to them was deliberately omitted by the Investigating Officer.

Supreme Court in S.Mohammed Ispahani Vs. Yogendra Chandak and others [AIR 2017 SC 4994] relying upon Hardeep Singh (supra) explained and clarified that evidence led before the Court is to be seen and not the evidence which was collected at the stage of enquiry/investigation. The issue before the Supreme Court was whether the High court was justified in summoning the accused mentioned in the F.I.R. on mere statements of witnesses recorded under Section 161 Cr.P.C. or in other words whether statements recorded under Section 161 Cr.P.C., constitute "evidence" within meaning of Section 319 Cr.P.C. to summon the accused to face trial. The Court clarified that the evidence on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The Court can summon on the examination-in-chief and need not wait till such witness is tested on cross-examination.

The trial court in my opinion has wrongly rejected the application filed under Section 319 Cr.P.C., on mere pendency of the complaint case filed by the revisionist and application filed under Section 210 Cr.P.C. Pendency of these applications would have no bearing on the trial or prohibit the court from exercising its powers under Section 319 Cr.P.C. to summon the proposed accused to face trial along with other accused persons on being satisfied on the evidence led by the prosecution during trial on theparameters laid down in Hardeep Singh (supra). The question whether the opposite parties can be summoned to face trial has not been decided by the trail court, therefore, this Court declines to express any opinion thereon on merit. The question on merit and rival contentions of the parties is kept open.

This revision deserves to be allowed, order accordingly.

The impugned order dated 8.2.2016 is set aside. The trial court is directed to proceed in accordance with law and decide the application under Section 319 Cr.P.C., on merit.

Order Date :- 9.8.2018

Saurabh