Smt. Geeta Devi vs State Of U.P. And Another
2019 Latest Caselaw 289 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 67
 

 
Case :- CRIMINAL REVISION No. - 816 of 2019
 

 
Revisionist :- Smt. Geeta Devi
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Ajay Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Sri Ajay Kumar Pandey as well as learned A.G.A. and perused the material available on record.

By means of the present revision, the revisionist is challenging the order passed by the XIth Additional Sessions Judge, who in exercise of power under Section 319 Cr.P.C. has summoned Smt. Geeta Devi w/o Raju(non-accused) to face the trial in Sessions Trial No.581 of 2015 along with other co-accused.

Submission made by learned counsel for the revisionist is that the informant-Ramendra Pal Singh moved an application 12-Kha invoking the powers of Section 319 Cr.P.C. with the prayer that the accused persons Chotey Lal, Nanhe Singh, Bitola Devi, Raju and Geeta Devi(non-accused person) may be summoned to face the trial but while allowing the aforementioned application in part, only Smt. Geeta Devi w/o Raju was summoned but for the rest of the accused, same was rejected. Submission made by learned counsel for the revisionist is that Smt. Geeta Devi was wrongly summoned by the learned trial Court on the following main grounds :-

(i) First informant gave an affidavit to S.S.P. attributing the bad habits of his son-in-law.

(ii) First informant blamed himself for tutoring her deceased daughter to give her dying declaration.

(iii) The impugned order is based on conjectures and surmises without any supporting material.

(iv) There is no strong and cogent evidence against the revisionist prompting the trial Judge to exercise his power under Section 319 Cr.P.C., and only passed in casual and cavalier manner.

Brief facts of the case

The present criminal prosecution was initiated by one Ramendra Pal Singh, father of the deceased who lodged the FIR on 03.06.2015 at 16:30 pm as case crime no.74 of 2015, Police Station-Barhan, District-Agra. Initially, the FIR was got registered under Section 307 IPC but after the unfortunate demise of the deceased(Shashi Prabha), the case was converted into Section 302/34 IPC. The FIR was registered against Sita Ram(husband), Chotey Lal, Gita Devi(revisionist), Bitola and Raju with the allegation that informant's daughter got married with one Sita Ram about 20 years back. His son-in-law was having illicit relations with his younger brother's wife-Geeta Devi and on account of this, there was a constant and regular quarrel in the family. There was an attempt to pacify the situation but all in vain. Ultimately, on 02.06.2015, around 7:00 in the evening, the informant got a call from unknown person that his daughter was set ablazed by her husband and other in-laws. After having heard the news, the informant rushed to S.N. Hospital, Agra along with his grand sons namely Ankit(15) and Anuj(12) and other family members and found that her daughter was in a precarious condition. The informant was informed by his daughter, that her in-laws had poured kerosene oil upon her and set her ablaze. The scribe of the FIR was one Sushil Pal Singh. Thus, from the FIR, it is evident that the root cause of this unfortunate incident appears to be illicit relationship between the revisionist-Geeta Devi and Sita Ram(husband of the deceased) which was seriously objected by the deceased during her life time.

After registering the case, the police started investigation in the matter and recorded the statement under Section 161 Cr.P.C. of the informant-Ramendra Pal Singh who reiterated the version of the FIR. From the post mortem report, it is clear that deceased took her last breadth on 04.06.2015 while she was undergoing treatment in the hospital and cause of death is due to shock as a result of ante mortem burn injuries. There was superficial to deep lower all over the body except part of lower abdomen, perineum, both lower end found of bone legs.

During this intervening period, when she was mentally fit to give her statement and the dying declaration, she has given her dying declaration to PW-3, Sri P.D.Gupta, Ist, Additional District Magistrate, Agra in which she has narrated the entire sequence of this incident, that around 2:30-3:00 in the afternoon, her husband poured kerosene oil upon her and when she was put a question as to why her husband has taken this extreme step, in reply to this, she has made a startling revelation which reads as under :-

"?????? - ?????? ??? ?? ????? ????? ?? ?

????? - ???? ??? ??? ??? ?? ???? ??????? ???? ?? ???? ??? ???? ??. ???? ??????? ?? ???? ???? ????? ????? ???? ??. ????? ????? ???? ?? ???? ??? ????.

??????- ?? ???? ?? ????? ???? ?????? ?

????? - ???? ???? ??? ?? ??? ???? ?? ???? ??? ?? ??? ???? ??. ??? ?? ?? ????? ??. ???? ?? ???? ?? ?????? ??? ?? ???? ??. ???, ????, ???? ???? , ??????? ?? ??? ?? ??? ?? ???? ?? ???. "

Learned counsel for the revisionist has drawn the attention of the Court to Annexure-5, an affidavit given by the informant addressed to S.S.P., Agra dated 07.02.2015 in which he has tried to mellow down the allegations against his son-in-law with the obvious reasons. He has attributed the temperament of her daughter for this unfortunate mishap. According to the informant, her daughter was having a hot tempered stubborn type of lady and on account of her ill-tempered nature, she has taken this ultimate step while committing suicide. Not only this, the informant blamed himself and his family member for the alleged act of recording her dying declaration and lastly the informant has given a clean chit to all the accused persons. This affidavit was given for the obvious reasons. In hismajeed bayan,the informant has almost reiterated the same version of the affidavit given by him on 07.02.2015, and thus, the Investigating Officer primarily relied upon the affidavit and other materials and had submitted the charge sheet only against Sita Ram droping the name of all other named accused persons.

After submission of the chargsheet, the testimony of PW-1, Ramendra Pal Singh, PW-2, Anuj and PW-3, Dr. P.D. Gupta was recorded. After recording the statements, an application under Section 319 Cr.P.C was given by informant-Ramendra Pal Singh dated 13.02.2018(Annexure-11) which was decided by the learned trial Judge while passing the impugned order dated 15.1.2019 which is under challenge.

Learned counsel for the revisionist has drawn the attention of the Court to the penultimate paragraph of the impugned judgment in which learned trial Judge has mentioned that the role of Geeta Devi might be active one and she might have actively participated in the commission of offence.

The underlying object of Section 319 Cr.P.C. is to achieve the objective that the real culprit should not get away unpunished. By virtue of this provision, the Court is empowered to proceed against the person not shown as an accused, if it appears from evidence that such person has committed an offence for which he could be tried together with other co-accused persons. In the case of Hardeep Singh Vs. State of Punjab and another (2014) 3 SCC Page-92, Hon'ble the Apex Court has explained the objective, inter alia, in following way, of which paragraph no.10 is reproduced hereinunder :-

"12. Section 319 Code of Criminal Procedure springs out of the doctrine judex damnatur 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 Code of Criminal Procedure.

13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?

*** *** ***

19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."

As regards the degree of satisfaction required for invoking the powers under Section 319 Cr.P.C., the constitution Bench has laid down the principles as follows :-

"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, 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.

*** *** ***

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."

Thus, the provision contained in Section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. Certainly, it is discretionary remedy to be used sparingly and in extraordinary circumstances before summoning the Court as to form the prima facie opinion which has to be formed for the exercise of this power requires stronger evidence, then mere probability of complicity of person. The test to be applied is the one which is more than prima facie case, as examined at the time of framing of the charge but no satisfaction is to the extent that the evidence, if goes un-controverted would lead to a conviction of the accused.

Now, let us examine the facts of the present case with the above-mentioned guidelines laid down in the case of Hardeep Singh's case (supra). To start with the allegation of the FIR, alleged by PW-1, Rampendra Pal Singh whereby the FIR was lodged against all the five persons including the present revisionist-Geeta Devi, there is a candid allegation that the deceased got married about 20 years back and his son-in-law Sita Ram was having illicit relations with his younger brother's wife-Geeta Devi and this was the root cause of unrest and discord between husband and wife, which ultimately has resulted into this incident of untimely demise of Shashi Prabha(deceased) leaving behind two small kids. Besides this, the dying declaration recorded by Mr. P.D. Gupta on 02.06.2015 which was obtained after getting her daughter's certificate about her mental stability in the aforesaid dying declaration in no uncertain terms she has levelled the allegation of illicit relationship of Smt. Geeta Devi with her husband and her active participation in commission of the offence. Thirdly, the testimony of PW-2, Anuj who in his examination-in-chief has categorically submitted that the entire transaction took place in front of his eyes. In his testimony, he has submitted that chachi-Geeta Devi and amma has caught hold of her mother, Raju poured kerosene oil on her mother and her father set her ablaze on the instigation of his chote baba. Therefore, it cannot be said that the complicity of Geeta Devi is completely ruled out in commission of the offence coupled with the fact that there is a consistent story that he was having illicit relationship with the deceased's husband-Sita Ram.

Much reliance has been placed on the informant's affidavit addressed to the S.S.P. Agra dated 07.02.2015. He is not an eye witness to the incident and his affidavit is being given to the S.S.P. Agra with the obvious reasons. The dying declaration of the deceased stand on the much higher pedestal than that of an affidavit of the father/informant and the dying declaration cannot be ignored while taking into account by considering Section 319 Cr.P.C.

I have perused the order impugned and I find that the order impugned touches all the four corners of the issue and the guidelines provided in Hardeep Singh's case(supra). The revisionist-Geeta Devi has got a strong motive to eliminate her elder sister who is the biggest hurdle in this relationship and the order impugned cannot be said that has been passed in a casual and cavalier fashion. The order of the learned trial Judge contained a well reasoned order and the same has been passed after adequate assessment in the correct prospective of the facts of the case and the guidelines provided in the case of Hardeep Singh's case. The dying declaration of the deceased is self-revealing and any affidavit given by the first informant would not dilute or mitigate the gravity of the offence or complicity of the non-accused/Geeta Devi in the commission of the offence.

Under the circumstances, assessing the entire facts and circumstances of the case and comparing the same with the guidelines provided in the aforementioned judgments of Hon'ble Apex Court in the case of Brijendra Singh and others Vs. State of Rajasthan(2017) 7 SCC 706; Labhuji Amratji Thakor and others Vs. State of Gujrat and another 2018(15) SCAL 639 and the latest citation in the case of Sugreev Kumar Vs. State of Punjab and others in Criminal Appeal No.509 of 2019 arising out of SLP(Crl.) No.9687 of 2018, I find that the order passed by the 9th Additional Sessions Judge, Agra is perfectly just, valid and up to the mark and do not deserve any interference in exercise of power under Section 397 and 401 Cr.P.C.

Accordingly, the present revision is devoid of merit and the prayer made is hereby declined.

However, keeping in view that the revisionist is a lady and in the fitness of circumstances, she is directed to surrender on or before 10th of May, 2019 and apply for bail, her bail application shall be adjudicated and decided by the courts below with speaking and reasoned order, strictly in accordance with law, in the light of the judgment given by Hon'ble Apex Court in the case of Hussain and another Vs. Union of India reported in (2017) 5 SCC Page-702, relevant extract of which reads as under :-

"?.......Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time"....... "Decision of cases of under-trials in custody is one of the priority areas. There are obstructions at every level in enforcement of right of speedy trial; vested interests or unscrupulous elements try to delay the proceedings"....... "In spite of all odds, determined efforts are required at every level for success of the mission"..... "The Presiding Officer of a court cannot rest in a state of helplessness. This is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases."

To satiate speedy disposal of the cases, the courts below are issued following directions in accordance with the observations made in the case of Hussain and another (Supra):

(i)Bail applications be disposed of normally within one week :

(ii) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years.

(iii).......................................................................................................;

(iv)......................................................................................................."

The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.

For the period of 10th May, 2019, no coercive action shall be taken against the revisionist in the aforementioned case.

It is made clear that no time extension application would be entertained for extending the period after 10th May, 2019.

The ratio mentioned above is the last word for every judicial officers for abiding with the directions of the Hon'ble Apex Court. In the aforesaid scenario, it would be pertinent to refer the case of Brahm Singh and others Vs. State of U.P. and others decided on 08.07.2016 in Criminal Misc. Writ Petition No.15609 of 2016 whereby co-ordinate Bench of this Court, while taking into account the concerns of most of the counsels with regard to the long pending bail applications at lower courts' stage has expressed their anguish and concern.

In the aforesaid backdrop, learned Sessions Judge/the concerned Trial Judge is directed to ensure that the guidelines given in the case of Hussain and another (supra) as well as in Brahm Singh and others(Supra) has to be carried out in its letter and spirit, failing which an adverse inference would be drawn against the erring officers and this Court would be compelled to take appropriate action against them, if found that there is laxity in adhering the above directions.

In the event, the bail application is not decided within seven days as contemplated above, the learned Judge will have to spell out the justifiable reasons and record the same on the order sheet of such cases.

With the aforesaid observations, the present criminal revision stands disposed of.

Order Date :- 28.2.2019

Sumit S