Neeraj vs State Of U.P.
2019 Latest Caselaw 3107 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved On: 22.02.2019
 
						 Delivered On : 18.04.2019
 

 
Case :- CRIMINAL REVISION No. - 5232 of 2009
 

 
Revisionist :- Neeraj
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- R.R. Singh,Birendra Singh Khokher,Ch. Narendra Singh,S.K.Upadhyay
 
Counsel for Opposite Party :- Govt. Advocate,R.K.Singh
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for the revisionist and learned A.G.A. For the State.

By way of criminal revision, revisionist is challenging the order dated 15.12.2009 passed under Section 319 Cr.P.C. summoning the revisionist for trial under Sections 302 read with Section 34 & 504 IPC.

The submission of learned counsel for the revisionist is that initially FIR was lodged against the revisionist alongwith three co-accused persons at Police Station- Phugana District- Muzaffarnagar, which was registered as Case Crime No.304 of 2007, under Sections 324, 323, 504 IPC. During the investigation, injured namely, Ratan Singh died due to injury and after his death case was converted under Section 302, 34 IPC. The Investigating Officer completed the investigation and submitted charge sheet under Sections 302, 34, 504 IPC against the co-accused, namely, Bhopal, Ram Niwas & Anuj and exonerated the revisionist from the charges and his name has not find place in charge sheet. Learned Chief Judicial Magistrate has committed the case for Session Trial before the Sessions Judge on 20.11.2017 and charge was framed against the charge sheeted person on 11.03.2008 under Sections 302, 34 & 504 IPC.

During the course of trial, witness Ravindra Kumar was examined as P.W.-1 and his examination-in-chief was recorded on 29.08.2008. Immediately thereafter, prosecution has filed an application under Section 319 Cr.P.C. for summoning the revisionist to face trial with co-accused on 29.8.2008 and learned Additional District & Sessions Judge, Court No.3, Muzaffarnagar illegally and arbitrarily summoned the revisionist under Section 319 Cr.PC.

He further submitted that during the pendency of instant revision, trial of co-accused persons have been concluded and co-accused Ram Niwas & Anuj were acquitted by the trial Court vide order dated 11.4.2014. It is also mentioned that during the pendency of trial, main accused Bhopal died and his trial has been abated on 11.9.2012.

Learned counsel for the revisionist argued that by plain reading of Section 319 Cr.PC, it is clear that additional accused could be tried with accused and in instant case, no trial is pending and co-accused, namely, Anuj & Ram Niwas have already been acquitted by the trial Court coupled with this fact that after death of main accused Bhopal, trial was abated against him on 11.9.2012. Therefore, revisionist cannot be tried together under such facts of the case. In support of his contention, he has placed reliance upon the judgment of Madhya Pradesh High Court in the case of Ramesh Agarwal Vs. Mukesh Jain passed in M.Cr.C. No.13702 of 2015 decided on 7th February, 2017.

He further submitted that examination-in-chief of P.W. 1 was completed on 29.8.2008 and on the very same day application under Section 319 Cr.P.C. was filed by the prosecution against the revisionist and the Court below has passed the impugned summoning order dated 15.12.2009. He also submitted that examination of P.W.1 was continued before the trial Court on 21.01.2009 & 06.04.2009. He argued that there is contradiction in the statement of P.W.1 as on 29.8.2008, he stated that he alongwith his brother reached at the place of incident and saved his father from all accused including revisionist, whereas on 21.01.2009, he stated that when he reached at the place of incident, accused are fled away from the said place. He further pointed out that the statement of P.W.2 was also recorded on 1.9.2009, he also stated the same facts that he has reached at the place of incident and saved his father (deceased) from the accused. His statement was continued on 27.11.2009, 06.08.2012, 05.09.2012 and 01.04.2014. In his cross examination on 01.04.2014, he clearly stated that at the time of incident, he alongwith his brother P.W.1 was present at home and after hearing the noise, he alongwith his brother came out from the home and found that his father was lying injured at Khadnja and no one was present at there. He also stated that he has not seen anyone doing scuffle with his father as accused has left the place before his arrival and also there was darksome at the place of incident. He further submitted that summoning order has been passed without considering all relevant evidences required in light of judgment given by the Apex Court in the cases of Michael Machado Vs. Central Bureau of Investigation; 2000 Lawsuit (SC) 366, Hardeep Singh Vs. State of Punjab; Laws (SC)-2014-1-19, Brijendra Singh and others Vs. State of Rajasthan; 2017 Law Suit (SC) 484, Labhuji Amratji Thakor and others Vs. State of Gujrat and another; 2018 Lawsuit (SC) 1163, Sunil Kumar Gupta & others; Khusbu Gupta Vs. State of Uttar Pradesh and others; 2019 Lawsuit (SC) 311 .

He further submitted that there is apparent contradiction in the statement given by the P.W.1 and P.W.2 before the trial Court, therefore, it is necessarily required upon the part of learned Judge to consider the relevant facts before passing the summoning order.

He next argued that once the co-accused was acquitted on the basis of same set of evidence, revisionist cannot be convicted on the testimony of same witnesses. In the present case, trial Court vide order dated 11.4.2014 acquitted the co-accused Ram Niwas & Anuj and trial against the main accused Bhopal was abated after his death vide order dated 11.9.2012. In support of his contention, he has placed reliance upon the judgment of this Court in the cases of Diwan Singh vs. State; 1964 Lawsuit (All) 182 followed in Aagoshe Iram vs. State of U.P. & Another; 2017 Lawsuit (All) 1546, Application U/S 482 No.2142 of 1994 (D.K. Agarwal Vs. State of U.P) decided on 15.9.2016, Application U/S 482 No.10015 of 2006 (Pradeep Kumar Tank Vs. State of U.P. & Another) decided on 29.03.2019, Application U/S 482 No.17127 of 2006 (Smt. Jaitoon and others Vs. State of U.P. & another) decided on 3.4.2019 & Application U/S 482 No.6803 of 2007 (Intazar Vs. State of U.P. & another) decided on 3.4.2019.

He also submitted that neither the State nor the informant-victim has preferred any appeal against the acquittal order passed by trial Court dated 11.4.2014, therefore, finally attained with the judgment. Further revisionist has no criminal history to his credit and is law abiding person. Lastly, he submitted that under such facts and circumstances as well as settled principle of law, this Court may please to quash the impugned summoning order dated 15.12.2009.

Learned A.G.A. for the State has vehemently opposed the prayer made by the learned counsel for the revisionist and stated that there is sufficient evidence to summon the accused under Section 319 Cr.P.C., but could not dispute the factual position of contradiction in statement, acquittal of co-accused and legal submission made by the learned counsel for the revisionist.

Counter affidavit was filed by opposite party no.2 and it is only stated in the counter affidavit that there is sufficient evidence to summon the accused under Section 319 Cr.P.C. Revisionist has obtained stay order dated 15.12.2009 by concealment of fact due to which Sessions Trial No.1655 of 2007 was held up.

I have considered the rival submissions made by the learned counsel for the parties and perused the record as well as law relied upon.

Revisionist first argument was that once the trial is concluded with regard to other co-accused, revisionist cannot be tried as it is the basic requirement of Section 319 Cr.P.C. that any such person could be tried together with the accused.

In support of his argument, he has placed reliance upon the judgment of Ramesh Agarwal (supra) and relevant paragraphs of the said judgment are being quoted hereinbelow:-

"Now, the question would arise that whether this Court after setting aside the order dated 28-4- 2015 should send the case back to the Magistrate for decision on the application under Section 319 of Cr.P.C. afresh or not?

M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) During arguments, it was informed that the respondent no.2 who was facing trial has been acquitted. Thus, it is clear that at this stage no case is pending against the co-accused. As the operation of the order dated 28-4-2015 passed by the Magistrate was stayed by this Court by order dated 1-3-2016, therefore, no proceedings were taken up before the Trial Court. In the meanwhile, the co-

accused has been acquitted and now no proceedings are pending. Section 319 of Cr.P.C. reads as under :

"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;

M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.)

(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."

Thus, from the plain reading of Section 319 of Cr.P.C., it is clear that additional accused could be tried together with the accused. Here no trial is pending and the co-accused has already been acquitted. Thus, the present applicant and other similarly situated persons cannot be tried together with the accused because of his acquittal. Under these circumstances, it would not be proper to remand the case back to the Magistrate to decide the application under Section 319 of Cr.P.C. afresh because in case the applicant and other similarly situated persons are summoned as additional accused, then they will not be tried together with the accused."

By perusal of Section 319 Cr.P.C. as well as judgment of Ramesh Agarwal (supra), it is apparently clear that once the trial is concluded with regard to other co-accused, revisionist cannot be tried again, therefore, the argument of learned counsel for the revisionist is having substance and in light of that, impugned summoning order dated 15.12.2009 is bad.

His next argument is with regard to consideration of other evidences alongwith statement of prosecution witnesses, while passing the order under Section 319 Cr.PC. In support of that, he relied upon the several judgments of the Apex Court.

In the case of Michael Machado (supra) relevant paragraph Nos. 13 to 15 are quoted hereinbelow:-

"13. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi & ors. {1983 (1) SCC 1} this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned:

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.

14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub- section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re- examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the court should refrain from adopting such a course of action. "

In the case of Hardeep Singh (supra) relevant paragraph Nos. 105 & 106 are quoted hereinbelow:-

"105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.

106. Thus, we hold 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."

Further, in the case of Brijendra Singh (supra) relevant paragraph Nos. 12 & 13 are quoted hereinbelow:-

"12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh's case and answered in the following manner:

"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan [(2014) 3 SCC 321] , held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

xx xx xx

105. Power under Section 319 CrPC 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.

106. Thus, we hold 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."

13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ''evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The ''evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."

In support of his contention, he has also placed reliance upon the judgment of Apex Court in the cases of Labhuji Amratji Thakor & Sunil Kumar Gupta (supra) in which following the ratio law laid by the Apex Court in the matter of Hardeep Singh & Bijendra Singh (supra) quashed the order passed under Section 319 Cr.P.C.

In the present case, it is apparent that the order under Section 319 Cr.PC. is based on the statement of P.W.1 recorded on 29.8.2008 without considering the relevant facts and without recording any satisfaction that there is some cogent evidence which may lead to his conviction. There is also apparent contradiction in the statement of P.W.1 during the course of trial. In the matter of Hardeep Singh & Bijendra Singh (supra) and other judgments, the Apex Court has clearly of the view that evidence should be more prima facie, if unrebutted, would lead to conviction, here no such satisfaction has been recorded by the Additional District & Sessions Judge, Court No.3, Muzaffarnagar while passing the summoning order dated 15.12.2009.

His third argument was that once the co-accused is acquitted by the Court below, revisionist cannot be convicted on the same of set of evidence on the basis of which co-accused was acquitted.

In support of his argument, he has placed reliance upon the judgment of Diwan Singh (supra) and relevant paragraphs No.4 to 6 of the said judgment are being quoted hereinbelow:-

"4. Learned counsel for the applicant has argued that both Manohar and the applicant were arrested together, searched together and as a single recovery list was prepared about the articles alleged to have been recovered from them and as the same witnesses were examined. by the prosecution in both the trials before the Magistrate, it will be incongruous to convict one of them on the basis of the same evidence and to acquit the other. I find force in this contention,

5. The judgment of the learned Sessions Judge in Criminal Appeal No. 262 of 1963 setting aside the conviction and sentence of Manoliar was not challenged by the State by filing an appeal and, as such, has become final. It is no doubt true that the learned Sessions fudge acquitted Manohar on a technical ground because, in his opinion, "the prosecution suffers from a patent infirmity creating reasonable doubt regarding the identity of the alleged fire arms". He did not disbelieve the evidence of the prosecution on facts. The reasoning given by the learned Sessions Judge in acquitting Manohar is not very appealing but the fact remains that Manohar who was arrested along with the applicant on the same charge and against whom the same evidence has been produced by the prosecution, has been acquitted, while the appeal of the applicant against his conviction was dismissed by the learned 1st Additional Sessions Judge of Etawah. In view of the acquittal of Manohar on the same facts and on the same evidence which has become absolute, it is not possible to maintain the conviction of the applicant.

6. If two persons are prosecuted, though separately, under the same charge for offences having been committed in the same transaction and on the basis of the same evidence, and if one of them is acquitted for whatever may be the reason and the other is convicted, then it will create an anamalous position in law and is likely to shake the confidence of the people in the administration of justice. Justice is not only to be done but also seem to be done. Therefore, I am clearly of opinion that as has been held in the case of Pritam Singh v. State of Punjab. (S) AIR 1956 SC 415, the principle of stare decisis will apply in the present case and the applicant's conviction cannot be sustained."

It was also followed in the judgment of Aagoshe Ram & D.K. Agarwal (supra) and Court has quashed the criminal proceeding on the ground that co-accused are already acquitted by the Court below on the same set of evidence.

He also placed reliance upon the judgments of this Court passed in Criminal Misc. Application No. 5779 of 1999, (Begum & Others vs. State of U.P. & Ors) decided on 15.07.2005, Criminal Misc. Application No. 13760 of 2005 (Zahrun Nisa vs. State of U.P. & Ors) decided on 22.09.2005 and Criminal Misc. Application No. 15521 of 2005 (Darshan Singh and Ors vs. State of U.P) decided on 24.10.2005, in which too, Court has quashed the criminal proceedings on the ground of acquittal of co-accused on the same set of evidences.

In the present case, there is no dispute on the fact that co-accused, namely, Ram Niwas & Anuj have been acquitted by the trial Court vide order and judgment dated 11.4.2014 and trial was abated against the main accused Bhopal, who died and there is no change of witnesses. No appeal has been filed either by the State or by the informant-victim against the order and judgment dated 11.4.2014, therefore, the same had attained finality.

Therefore, in light of facts of the case and judgment relied upon, revisionist in the present case cannot be convicted and liable to be discharged. The order under Section 319 Cr.P.C. is also not sustainable and liable to be quashed. Accordingly, order dated 15.12.2009 is hereby quashed. The Revision is allowed. No order as to costs.

Order Date :- 18.04.2019

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