Somveer Alias Sombir Singh ... vs State Of U.P. And Another
2019 Latest Caselaw 5472 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 70
 

 
Case :- APPLICATION U/S 482 No. - 24760 of 2019
 

 
Applicant :- Somveer Alias Sombir Singh Dhangar
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Rajesh Kumar Srivastava,Virendra Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.

1. Heard Rajesh Kumar Srivastava, learned counsel for the applicant and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of leaned counsel for the parties.

2. This application under Section 482 Cr.P.C. has been preferred by the applicant against the order dated 11.06.2019 passed by Additional Session Judge/F.T.C.-I, Mathura in S.T. No.374 of 2017 (State vs. Om Prakash) arising out of Case Crime No.415 of 2016, under sections 323, 498A, 304B I.P.C. and 3/4 Dowry Prohibition Act, Police Station Raya, District Mathura, whereby applicant has been summoned in exercise of powers under Section 319 Cr.P.C. to face trial alongwith other co-accused persons.

3. It is submitted by the learned counsel for the applicant that as per prosecution case, on 22.5.2016, opposite party no.2 lodged FIR registered as Case Crime No.415 of 2016, under sections 323, 326, 498A I.P.C. & 3/4 Dowry Prohibition Act, Police Station Raya, District Mathura against seven accused persons namely Om Prakash (husband), Padam Singh (father-in-law) Smt.Bhagwan Devi (mother-in-law), Bhoodev(Jeth),Pradeep, Somveer(applicants) and Usha, alleging that marriage of his sister Sunita was solemnized on 18.05.2016 with Om Prakash but the accused persons were not happy with the dowry given in the marriage, hence, there was consisting demand of car in dowry. On account of non-fulfilment of said demand of dowry, all the accused persons badly beaten his sister Sunita and pouring kerosene set her ablaze, thereby she received burn injuries. She was admitted in Swarn Jayanti Hospital. The victim Sunita died during her treatment after eight days of the alleged incident.

4. The investigating officer after investigation submitted chargesheeet only against three accused persons namely Om Prakash, Padam Singh and Smt.Bhagwan Devi, under sections 323, 498A, 304B I.P.C. and 3/4 Dowry Prohibition Act. The complicity of other accused persons namely Smt.Usha, Pradeep, Bhoodev and Somveer (applicant) were found false by the investigating officer.

5. In the trial, statements of P.W.1 Mahendra Singh, P.W.-2 Mahesh Chand and P.W.-3 Bhagat Singh have been recorded, thereafter opposite party no.2/informant has moved an application under Section 319 Cr.P.C. for summoning the applicant and other accused persons who were charge-sheeted in this case, but the trial court by a detailed order after considering all the facts, circumstances and evidence on record rejected the said application of the opposite party no.2 vide order dated 27.04.2019. 

6. Opposite party no.2 aggrieved by the said order dated 27.04.2019 preferred an application under Section 482 Cr.P.C. No.20753 of 2019 before this Court, which was disposed of by order dated 24.05.2019 observing that without going into the merits of the case, it would be appropriate that application of the applicant moved under section 319 Cr.P.C. be again considered with regard to accused Somveer (opposite party no.3). Thereafter trial court took a different view and summoned the applicant by impugned order dated 11.06.2019.

7. Assailing the aforesaid impugned order dated 11.06.2019, the learned counsel for the applicant submitted that the applicant is not Jeth of the victim/deceased. Father's name of the applicant is Jai Singh while father's name of Om Prakash (husband of the deceased) is Padam Singh. The applicant is cousin brother of Om Prakash and lives separately in Mathura city. The deceased Sunita had been living separately in her matrimonial house alongwith her husband and other family members in House No.1194 Ram Ratan Colony, Rukmani Vihar near Phase-II. There is no direct or indirect evidence against the applicant. Even P.W.1, P.W.2 and P.W.3 have not attributed any specific role in their statements against the applicant. Deceased was admitted in hospital on 18.05.2016 where she died on 24.05.2016 but her dying declaration was not recorded. All the prosecution witnesses have deposed that at the time of marriage there was no demand of dowry. There is no eye witness of the incident. The trial court passed the impugned order on 11.06.2019 only on the ground that before the High Court the counsel for the informant has argued that at the time of medical treatment of the deceased, opposite party no.3 Somveer was present, which shows that Somveer has some in connection with the crime and High Court considering his submission remanded the matter to decide a fresh, therefore, there is sufficient ground to summon the applicant. It is submitted that presumption drawn by the trial court under the facts and circumstances of the case is not sustainable because the High Court while remanding the matter by order dated 24.05.2019 did not give any finding on merit. It is well settled by the Apex Court in catena of judgments that the test has to be applied is one which is more than prima-facie case,has 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.

Lastly, it is submitted that it is well settled that the power under section 319 Cr.P.C. can be exercised only where strong and cogent evidence are found against a person and not in a casual or cavalier manner. In this case decree of satisfaction cannot be said to be more than prima-facie and the trial court has not recorded reason on satisfaction in terms of law laid down by the Apex Court. Therefore, the impugned order dated 11.06.2019 is not sustainable in law and is liable to be quashed.

8. Learned counsel for the applicant has placed reliance on the following judgments:-

8.1 Hardeep Singh and others vs. State of Punjab and others 2014 (3) SCC, 92- wherein all the issues relating to scope and object of summoning the accused under Section 319 Cr.P.C.has been well considered and settled by Constitutional Bench consisting of five Judges of Apex Court.

Following five questions were before the Apex Court in the case of Hardeep Singh (Supra):-

(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial"

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign and accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?

(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

The aforesaid question no. iv has been discussed in Para 93 to 106 and answered in Para- 105 and 106 of the said judgment, which are reproduced herein below:-

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.

8.2. The aforesaid principles laid down by the Apex Court in the case of Hardeep Singh (supra) has been reiterated further in case of Brijendra Singh and others vs. State of Rajasthan 2017(7) SCC 706 as well as in the case S Ahmad Ispahni vs. Yogendra Chandak and others 2017 (16) SCC 226 observing that power under Section 319 Cr.P.C. can be exercised only where strong and cogent evidence are found against a person and not in a casual and cavalier manner. The decree of satisfaction before summoning the offence under Section 319 Cr.P.C. must be more than prima facie, which is warranted at the time of framing of charges against the accused.

8.3 Thereafter, the Apex Court in case of Labhuji Amratji Thakar and others vs. State of Gujarat and another 2018 SCC online SC 2547 also followed the principle laid down by the Apex Court in the case of Hardeep Singh (Supra).The observation made by the Apex Court in para- 12 & 13 of the said judgment are reproduced herein below:-

Para-12

The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e., "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." Although, the High Court has not adverted to test laid down by the Constitution Bench nor has given any cogent reasons for exercise of power under Section 319 Cr.P.C., but for our satisfaction, we have looked into the evidence, which has come on record before the trial court as statements of PW3 and PW4. PW3 is mother of the victim, who has clearly stated that her daughter has informed that she was abducted by appellants and Natuji, who had taken her to the Morbi in the vehicle of Labhuji. The statement of mother of the victim was an hearsay statement and could not have been relied for proceeding against the appellants. Now, coming to the statement of victim, PW4, she has only stated that Natuji, the accused had come along with his three friends, i.e. appellants and she was taken in the jeep to Morbi. She does not even alleged complicity of the appellants in the offence. Her further statement was that she was taken to Morbi in the jeep driven by Labhuji and subsequently was taken to Modasa from Morbi in the jeep of Labhuji which also could not furnish any basis to proceed against the appellants. The mere fact that the jeep, in which she was taken to Modasa, the appellants were also present cannot be treated to be any allegation of complicity of the appellants in the offence. The observations of the trial court while rejecting the application having that the application appears to be filed with malafide intention, has not even been adverted by the High Court.

Para-13

We are, thus, of the considered opinion that High Court committed error in setting aside the order of the trial court rejecting the application under Section 319 Cr.P.C. The High Court has not given sufficient reasons for allowing the application under Section 319 Cr.P.C. filed by prosecution. The impugned judgment of the High Court is unsustainable and is hereby set aside. The appeal is allowed.

8.4 The Apex Court in case of Periyasami and others Vs. S. Nallasamy 2019 (4) SCC 342 has also held that the additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."

9. Per contra, learned AGA for the State submitted that the trial court in the order dated 11.06.2019 has observed that there is sufficient ground for summoning the accused under Section 319 Cr.P.C. therefore, the order dated 11.06.2019 is not liable to be quashed.

10. The matter requires consideration.

Learned Government Advocate has accepted notice on behalf of the State/opposite party no.1.

Let a notice be issued to opposite party no. 2. Steps be taken within ten days.

All the opposite parties may file counter affidavit within six weeks. Rejoinder affidavit, if any, may be filed by the applicant within three weeks thereafter.

List this case on 11.09.2019 before the appropriate Bench.

Till the next date of listing, no coercive action shall be taken against the applicants pursuant to impugned order dated 11.06.2019 in the aforesaid case.

Order Date :- 8.7.2019

SKD