Jagdish & Another vs State Of U.P. & Another
2018 Latest Caselaw 332 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED/AFR
 
Court No. - 63
 

 
Case :- APPLICATION U/S 482 No. - 4818 of 2007
 
Applicant :- Jagdish & Another
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- O.P. Singh,S.K. Rao
 
Counsel for Opposite Party :- Govt. Advocate,A.K.Srivastava,Aalok Kumar Srivastava
 
Hon'ble Amar Singh Chauhan,J.

Heard Shri O.P. Singh, Senior Advocate, assisted by Shri S.K. Rao, learned counsel for the applicants, learned A.G.A. for the State, Shri Aalok Kumar Srivastava, learned counsel for the opposite party no. 2 are present and perused the material on record.

The applicants through this application moved under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer to quash the impugned order dated 3.11.2006 in S.T. No. 7 of 2006 (State Vs. Phulena and others), arising out of Case Crime No. 1730 of 2005, under Section 302, 147, 148, 506 I.P.C., P.S. Tarkulwa, District Deoria whereby the application under Section 319 Cr.P.C. was allowed and applicants were summoned to face the trial and further prayed to stay the proceeding in the aforesaid case.

Brief facts which are requisite to be stated for the adjudication of the application are that first information report was lodged on 30.6.2005 of the incident dated 29.6.2005 at about 8 p.m. with the allegation that informant along with his son were sitting on Dhotha, by that time the accused Jagdish, Phulena, Bhola and two others miscreants, resident of Village Khotaha, Gopalganj, Bihar came there and on the exhortation of the accused Jagdish, they assaulted his son by tangi, knife, lathi and bhala. During treatment, his son succumbed to injury and two accused namely Naga and Vidyanand were caught hold by the public on the spot. The Investigating Officer after concluding the investigation, submitted the chargesheet against co-accused Phulena, Naga and Vidyanand under Section 302 and 506 I.P.C. The applicants were exonerated by the Investigating Officer but during trial, application was moved under Section 319 Cr.P.C. for summoning the applicants. After recording the statement of complainant Sheetal (P.W.1) that applicants also asaulted the deceased by lathi and on being heard, the application was allowed by the trial court and applicants were summoned to face the trial.

Feeling aggrieved, the applicants came up before this court in this application.

It is submitted by learned counsel for the applicants that the Investigating Officer has not submitted the chargesheet against the applicants. No specific role has been assigned to the applicants. Two accused persons namely Naga and Vidyanand, resident of Village Khotaha, Gopalganj, Bihar were caught hold by the public on the spot and remaining accused persons were said to be escaped from the place of occurrence. As per postmortem report, deceased sustained eight incised wounds and injury no. 4 is lacerated wound can be caused by knife and tangi which were not assigned to the applicants. The trial court summoned the applicants under Section 319 Cr.P.C. solely on the basis of statement of P.W. 1 Sheetal which is illegal, improper and unjust.

Per Contra, learned A.G.A. for the State and Shri Aalok Kumar Srivastava, learned counsel for the opposite party no. 2 contend that as per postmortem report, injury no. 4 is lacerated wound which can be caused by lathi which were assigned to the applicants. Co-accused Vidyanand was also armed with lathi. The complainant has not changed the prosecution story and the specific role has been assigned to the applicants. There is prima facie evidence against the applicants for causing injury to the deceased by lathi.

Learned counsel for the opposite party no. 2 relied on Rukhsana Khatoon (Smt) Versus Sakhawat Hussain and others, 2004 SCC (Cri.) 1153, in which it is held that the said provision of Section 319 Cr.P.C. gives ample power to any court to take cognizance and add any person not being an accused before it and try him along with other accused, if there appears during trial sufficient evidence indicating his involvement in the offence. The High Court erred in holding that the court's power under Section 319 Cr.P.C. could not be invoked when a person named as an accused in FIR was not charge-sheeted. He further relied on Ram Singh and others Versus Ram Niwas and another, 2009 (65) ACC 971, in which it is held that extraordinary power to be exercised only when it appears to the court that the person not being tried has committed an offence on the basis of evidence on record. Mere existence of prima facie case not sufficient to exercise jurisdiction. The court must arrive at satisfaction that evidence adduced on behalf of prosecution if unrebutted would lead to conviction of the person sought to be added as accused and jurisdiction to be exercised very sparingly.

Before adverting to the claim of the parties, it is necessary to reproduce Section 319 Cr.P.C.

"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 a fresh, and the 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."

Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others, 2014 (1) JIC 539 (SC), it has been observed 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 the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence is clear from the words 'for which such person could be tried together with the accused.' The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."

In the case in hand, two accused persons namely Naga and Vidyanand were said to have been arrested on the spot by the public. The Investigating Officer after concluding the investigation submitted the chargesheet against the three co-accused persons namely Phulena, Naga and Vidyanand who were said to be caused injury by tangi, knife, lathi and bhala. No specific role has been assigned to the applicants. The impugned order has been passed without recording any finding regarding its satisfaction to the effect that there is a likelihood of conviction of the applicants. The power under Section 319 Cr.P.C. should have exercised very sparingly and not in a routine manner but the impugned order lacks such requirement. Mere prima facie case is not sufficient to exercise the power under Section 319 Cr.P.C. rather the evidence should be unrebuted would lead to the conviction of the person. In the case of Brijendra Singh and others Vs. State of Rajasthan, 2017 Law Suit (SC) 484, in which it has been held that "power under Section 319 Cr.P.C. 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."

In view of what has been discussed above, the application has substance and is liable to be allowed.

Accordingly, the application is allowed and the impugned order dated 3.11.2006 in S.T. No. 7 of 2006 (State Vs. Phulena and others), arising out of Case Crime No. 1730 of 2005, under Section 302, 147, 148, 506 I.P.C., P.S. Tarkulwa, District Deoria is hereby quashed and the application under Section 319 Cr.P.C. is rendered as 'non est.'

Order Date :- 3.5.2018

Prakhar