Ansarullah vs State Of U.P. And Anr.
2018 Latest Caselaw 1783 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                 		                   
 
Court No- 45                     
 

 
Case :- Criminal Revision No. - 2590 of 2011
 

 
Revisionist :- Ansarullah
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Syed Wajid Ali
 
Counsel for Opposite Party :- Govt. Advocate,M.P.Tiwari
 

 
Hon'ble Siddharth,J.

Heard Sri Syed Wajid Ali counsel for the revisionist, learned A.G.A. for opposite party no. 1 and Sri M.P. Tiwari learned counsel appearing on behalf of opposite party no. 2.

This criminal revision has been preferred against the judgment and order dated 25.06.2001 passed by Additional Sessions Judge (E.C. Act), Siddharth Nagar in Sessions Trial No. 52 of 2008, State Vs. Guddu @ Firoz, whereby the application of the prosecution under Section 319 Cr.P.C., has been allowed and the revisionist has been summoned by the trial court for facing trial.

The facts of the case are that a first information report was got registered by opposite party no. 2 with regard to an occurrence dated 12.06.2007 said to have taken place at 10:30 p.m regarding which F.I.R. was lodged on 12.06.2007 at about 23:45 hrs. as Case Crime No. 183 of 2007 under Section 307 IPC, P.S. Dumariaganj, District Siddharth Nagar. In the said FIR, the deponent has not been named as an accused. The entire allegations are against the named accuseds. The statement of injured was recorded on 18.06.2007. The investigation of the aforesaid case was conducted by the I.O. concerned, but, he did not find any material against the revisionist, therefore, no charge sheet was filed against him. The charge sheet dated 21.07.2007 was filed against Guddu @ Firoz Malik and Sita Ram @ Chulhai. In the charge-sheet it has been stated that these two persons came on motorcycle and accused, Guddu, fired upon the injured. Subsequently, investigation of the case was also conducted by S.I.S. The investigating officer of the S.I.S. recorded statement of the informant on 20.11.2007 and the statement of the injured was recorded on 10.03.2008 under Section 161 Cr.P.C. During the trial, the statement of PW-1 was recorded on 24.07.2008 and he was cross-examined on 30.08.2008. On the basis of evidence of the PW-1, the prosecution filed an application under Section 319 Cr.P.C., before the trial court which has been allowed by the impugned order whereby the revisionist has been summoned.

The counsel for the revisionist has argued that F.I.R. was lodged by Sanoj Kumar son of Ashok Kumar as case crime no. 183 of 2007 u/s 307 I.P.C. at P.S. Dumariyaganj, District- Siddharth Nagar on 12.06.2007 against Dabbu alias Fayyaz Malik, Guddu alias Firoz Malik and Sita Ram alias Chulhai, residents of Sunhai, P.S. Dumariyaganj, District- Siddharth Nagar. The revisionist was not named as accused in the said F.I.R. The statement u/s. 164 Cr.P.C. of the injured, Ashok Kumar, was recorded on 18.06.2007 in which injured has stated that the person who was on motorcycle, was Ansarullah (the revisionist). The examination-in-chief of the injured Ashok Kumar (P.W.-1) was recorded on 24.07.2008 and he was cross examined on 30.08.2008. In the examination-in-chief of P.W.-1, has stated that he was called by accused Dabbu and he was taken to liquor shop, which is at 70-80 steps and there accused, Guddu, caught hold of his hand and Dabbu fired at him, he fell down and Ansarullah, the revisionist, had been standing on a start motorcycle.

The examination-in-chief and cross examination of P.W.-2 (informant) was recorded on 09.09.2008 and 11.09.2008 respectively and evidence of other prosecution witnesses were also recorded, but, they have not stated anything about the revisionist only P.W.-1 stated that revisionist came that along with other accused persons and after shooting injured (P.W.-1) by other accuseds, he went away along with them. The other witnesses have not even taken name of the revisionist in their evidence. The revisionist has been summoned u/s. 319 Cr.P.C. by the court below by the impugned order dated 25.06.2011 merely on the ground that statement u/s. 164 Cr.P.C. of the injured was recorded, which is paper no. 73 Ka and in the statement dated 18.06.2007, he was stated that he saw the revisionist standing on a start motorcycle.

The revisionist placed reliance upon a verdict of Hon'ble Supreme Court reported in 2011 AIR SCW 2959 (Zahoor and others vs. State of U.P.). In paragraph no. 3 of the said judgment, the Hon'ble Supreme Court has held that the appellants, Zahoor and others, were convicted u/s. 304(1) I.P.C. with the aid of section 34 I.P.C. Since Zahoor and Subrati had not caused any injury to the deceased or to anybody else and only allegation against them was that they have exhorted their co-accuseds to shoot at deceased Puttan. In other words, no overt act has been attributed to them. In the present case, the revisionist has also not been ascribed commission of any overt act done by him. The evidence of P.W.-1 is only to the effect that the revisionist was standing on a start motorcycle.

In the case of Mohd. Shafi vs. Mohd. Rafique, reported in 2007 (58) ACC 254, P.W.-1 had stated in his examination-in-chief that certain revision was also present at the time of occurrence. The application moved u/s. 319 Cr.P.C. was dismissed, whereagainst a petition u/s. 482 Cr.P.C. was preferred before this court, which was allowed, against which Mohd. Shafi filed criminal appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court allowed his appeal and set aside the order of Hon'ble High Court.

"Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.

In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., [1983] 1 SCC 1, A Division Bench of this Court while holding that even if a person had not been sent for trial by the police, the trial court would be entitled to invoke its jurisdiction after taking evidence, stating;

"19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law."

From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed."

The revisionist further relies upon the decision of Hon'ble Supreme Court reported in 2008 (63) ACC 194 (Kailash vs. State of Rajasthan & another). In the said case, initially in the F.I.R., Kailash (appellant) was named and assigned role in the F.I.R., but, no charge sheet was filed against him. During the course of trial, the witnesses were examined, on the basis of which, an application u/s. 319 Cr.P.C. was moved by the complainant. The trial court considering the same, recorded a finding that there was improvement made by the prosecution witnesses and if Kailash was presumed to be present at the place of occurrence, it was not proved that he took part in the assault and there was no justification for summoning him under Section 319 Cr.P.C. The application u/s. 319 Cr.P.C. was dismissed against which revision was preferred before High Court, which was allowed. Thereafter, Kailash approached Hon'ble Supreme Court whereby judgment of the High Court was set aside and judgment passed by the trial court was restored by the following observations:-

"The learned Sessions Judge took stock of the evidence which was led during the trial and came to the conclusion that there was nothing in the First Information Report (Exh.P-1) to suggest that Kailash was having an axe in his hand and that he had caused the injury on the head or finger of the injured Rohitas. He also found that in the statements of the witnesses including injured Rohitas, Ram Singh, Ramavtar and Maya Devi, nobody had stated that Kailash was having an axe in his hand and he caused any injury to Rohitas with axe. He found that Rohitas, in his police statement, has stated to have been hit with a lathi. The Sessions Judge also observed that even if Kailash was presumed to be present at the place of occurrence, it was not proved that he took part in the assault and there was no justification for taking any cognizance against him. He found that Rohitas (PW1) in his statement had improved upon his evidence before the court and had added that Kailash inflicted axe blow on his hand and head, however, his injuries suggested that they were caused by a blunt weapon. It was also found by the learned Sessions Judge that even Ramavtar (PW3) had deposed that nobody struck Rohitas with an axe before him. Even Maya (PW-4) had also not stated in her statement about Kailash to have inflicted injuries to Rohitas with an axe. Although these witnesses had stated in their evidence that Kailash was having an axe in his hand, the Sessions Judge found that they have made improvement in their evidence. He accordingly dismissed the application by his order dated 24.4.2004.

The powers under Section 319 Cr.P.C. to proceed against any person who is not the accused are couched in the following words: "319 Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under sub-section (1) then

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) 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.

A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are "it appears from the evidence".."any person"."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands.

In a reported decision in Mohd. Shafi v. Mohd. Rafiq & Anr. [JT 2007 (5) SC 562], to which one of us (Sinha, J.) was a party, this Court had observed in para 7 as under:

"Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appears to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf."

In the above case this Court referred to the decision reported in Municipal Corporation of Delhi v. Ram Krishan Rohtagi & Ors. [(1983) 1 SCC 1] and highlighted the following remarks made in para 19 therein which are to the following effect:

"19. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.."

It was further stated in para 13:

"it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrived at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence." (Emphasis supplied).

In Krishnappa v. State of Karnataka [(2004) 7 SCC 792] this Court, while relying on another reported decision in Michael Machado v. Central Bureau of Investigation [(2000) 3 SCC 262] went on to hold that the power under Section 319, Cr.P.C. is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. The Court further observed: "a judicial exercise is called for, keeping in conspectus of the case, including the stage at which the trial has already proceeded with the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence."

The Court further observed:

"The Court, while examining an application under Section 319 Cr.P.C., has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 Cr.P.C., all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused."

Turning to the present case, we find that the Trial Court had properly considered the evidence of injured Rohitas, Ram Singh, Ramavtar and Maya Devi and had found that none of the witnesses had stated that Kailash was having an axe in his hand and that he caused any injury to Rohitas with the axe. In that the court found that the witnesses had improved their version only at the stage of trial. The court even went to the extent of saying that even if Kailash was presumed to be present at the spot, that by itself could not prove that he took part in the assault. The Trial Court had also very specifically noted the improvement made by Rohitash (PW-1) in stating that Kailash inflicted axe blow on his hand and head which claim was belied by the medical report recording his injuries. Same was the situation regarding the evidence of Ramavatar (PW3) as also Maya (PW4). The trial court found that all these witnesses were giving improved versions during their evidence in the court. Thus, it was clear that the Trial Court had come to a conclusion that there was no possibility of convicting Kailash, the present appellant on the basis of the evidence led before it."

The counsel for the revisionist further relies, upon a decision reported in 2009 (66) ACC 32 (Supreme Court) (Sarabjeet Singh & another vs. State of Punjab). In the said case, the facts were that Balwant Singh (informant) was attacked by the accused persons with their respective weapons in their hand till they became sure of victim's death. After accuseds left the place of occurrence the appellant Sarabjeet Singh and others while standing near the village shouted "Raju had not died" whereupon Gurdeep Singh (appellant in appeal), Heera Singh and Bhagwant Maseeh again went to him and caused further injuries to him, the thereafter fled away. The informant, Balwant Singh, P.W.- 1, was examined by learned Sessions Judge and on the basis of his statement, an application u/s. 319 Cr.P.C. was moved. The appellant Sarabjeet Singh and another were summoned by learned Sessions Judge, on the ground that prima-facie it is established that they were members of an unlawful assembly having common object to kill Rajvindra Singh and they are liable to face the trial (para-7). The matter was carried up to Hon'ble Supreme Court by Sarabjeet Singh and another. The Hon'ble Supreme Court allowed their appeal and set aside the judgment of the court below by the following observations:-

"A First Information Report was lodged by Balwant Singh (PW-1) alleging that while working on the fields at about 11.30 a.m. on 02.05.2005, he found Rajwinder Singh alias Raju being surrounded by the accused. He was attacked by them by their respective weapons in their hands, till they became sure of his death. After the accused left the place of occurrence, PW-1 went near Raju and made him drink water. Sarabjit Singh and Saroop Singh, appellants herein, while standing near the village, shouted that Raju had not died whereupon Gurdip Singh, appellant in Criminal Appeal arising out of SLP (Crl.) No.19 of 2007, Hira Singh and Bhagwant Masih again came near him and caused further physical injuries to him. They thereafter fled away.

Before the learned Sessions Judge, Balwant Singh (PW-1) was examined. He repeated the allegations contained in the First Information Report.

Relying only on or on the basis of the said statements made by PW-1, an application for summoning the appellants in terms of Section 319 of the Code was filed.

On the basis of the said statements alone, the application filed by the first informant under Section 319 of the Code was allowed, stating:

"7. In view of the specific attribution to Gurdip Singh, Sarabjit Singh and Sarup Singh, it is prima facie established that they were members of an unlawful assembly having the common object to kill Rajwinder Singh and they are liable to face the trial u/s 148, 302 read with Section 149 I.P.C. Hence, accused Gurdip Singh son of Sohan Singh, Sarabjit Singh son of Nazir Singh and Sarup Singh son of Mohan Singh, residents of village Kaile Kalan be summoned through non-bailable warrant, of arrest for 17.10.06 to face trial u/s 148, 302 read with Section 149 I.P.C. alongwith the other accused. Singh accused Gurpreet Singh alias Gopi is already facing the trial, therefore, there is no need to issue process against him. With this, the application u/s 319 Cr. P.C. is disposed of accordingly. Papers be attached with the trial file."

As indicated hereinbefore, appellants' revision application there against before the High Court was dismissed.

The extent of the power of a Sessions Judge to summon persons other than the accused to stand trial in a pending case came up for consideration before this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi [(1983) 1 SCC 1]. Therein, this Court while holding that the provision confers a discretionary jurisdiction on the court added "this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken".

The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.

We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined:

"...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court..."

An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction.

For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.

The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied."

Per contra, learned A.G.A. and learned counsel for the opposite party no. 2 have argued that in the statement under Section 164 Cr.P.C., the role of the applicant has been clearly stated. In the statement of P.W.-2, he has also taken name Ansarullah, P.W.-1 has also named him alongwith the other accuseds as running on motorcycle after firing. Therefore, the revisionist have been rightly summoned by the trial court for facing trial.

In the aforementioned cases, the Hon'ble Supreme Court has also held that before summoning a person u/s. 319 Cr.P.C., the trial court has to consider the material on record and a person can be summoned only under compelling circumstances and the power is to be exercised with great caution and circumspection, not merely on the ground that because some of the witnesses have stated something wherefrom a prima-facie case is made out.

In the present case, as is evident from the impugned order that the trial court has relied upon statement of the injured recorded u/s. 164 Cr.P.C. and his statement dated 18.06.20007 recorded in trial. The trial court could not have summoned the revisionist on the aforesaid statements. Only evidence which has come in the examination-in-chief of the P.W.-1 is that the revisionist had started motorcycle and was standing with the same. He does not says that the revisionist came along with other accused persons and participated/committed any offence and then fled away with them. Therefore, on the aforesaid evidence, which has not been supported by other prosecution witnesses, the revisionist could not have been summoned u/s. 319 Cr.P.C.

On the one hand, the informant (P.W.-2) says that he was present at the time of occurrence and other prosecution witnesses reached the spot on alarm being raised and had also saw a motorcyclist, but, they had not identified him. Therefore, on such a shaky, untrustworthy and unconvincing evidence, there is no likelihood that the revisionist can be convicted and moreover, in view of the judgment of the Hon'ble Supreme Court rendered in the case of Zahoor and others (supra), the revisionist cannot be summoned.

The trial court has not stated that it was satisfied from the material available on record that there is cogent and convincing evidence against the revisionist and there was overt act of crime committed by him, therefore, there was no occasion to summon the revisionist.

It appears that P.W.-1 has tried to save named accused, Sita Ram and in his place name of the revisionist has been added by stating that he was standing with a start motorcycle.

In view of the above factual and legal position the order dated 25.06.2001 passed by Additional Sessions Judge (E.C. Act), Siddharth Nagar in Sessions trial no. 52 of 2008 State Vs. Guddu @ Firoz, whereby the application of the prosecution under Section 319 Cr.P.C., has been allowed is quashed.

This revision is allowed.

Order Date: 31.07.2018

Rohit