Sushma vs State Of U.P. And Another
2019 Latest Caselaw 1726 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 67
 

 
Case :- CRIMINAL REVISION No. - 861 of 2018
 

 
Revisionist :- Sushma
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Vinay Kumar Tripathi
 
Counsel for Opposite Party :- G.A.,Munna Babu
 

 
Hon'ble Rahul Chaturvedi,J.

After hearing the present revision on 27.3.2019, in the open Court has declared the present revision to be allowed, quashing the impugned order dated 21.02.2018 by which the revisionist Km. Sushma (unmarried nanad) was summoned in exercise of power U/s 319 Cr.P.C. by the learned trial judge to face the trial in ST No. 115/2014 (State Vs. Shailesh Kumar Yadav and others) U/s 498A, 304B I.P.C. and 3/4 D.P. Act and the alternative charge 302/34 I.P.C. However, the detailed reasoning while allowing the above revision is mentioned herein below:-

Learned counsel for the revisionist submits that on 3.8.13 one Ramji Yadav (informant) lodged a FIR against 4 named accused persons; namely; Shailesh Kumar Yadav (husband), Rajnath Yadav (Father-in-law), mother-in-law (name not mentioned) and Km. Sushma (unmarried sister-in-law) with the allegation that the informant?s neice Rupa Yadav in year 2009/2010(?) got married with Shailesh Kumar Yadav according to Hindu rites and rituals. On 3-8-13 around 6 in the morning, the informant got an information that all the family members of Shailesh after assaulting his niece, Rupa Yadav set her ablaze. In the entire FIR, as per the prevailing practice in the society now a day, all the family members of Shailesh Kumar Yadav, the husband, was roped in the commission of the offence. The said FIR was registered as Case Crime No. 182/2013 U/s 498A, 304B IPC and 3/4 D.P. Act at Police Station Sarai Mumrej, District Allahabad. The post mortem of the deceased was conducted on 04.08.2013 at 1.22 P.M. and as per the post mortem report, the deceased has sustained superficial to deep burn all over the body except soles and she died on account shock as a result of ante-mortem burn injuries.

After registering the case, the police started investigating into the matter and during investigation; the police recorded the 161 Cr.P.C. statement of Ramji Yadav (informant) and Lalji Yadav (father of the deceased).

In the FIR and thereafter during investigation there is marked and conspicuous deviation in the prosecution story. In the FIR, it was alleged that on account of golden chain she was harassed by her husband and in-law, whereas, in the 161 statements from golden chain, it become motorcycle, attributing a general role of harassment to all the family members and ultimately killing the deceased after burning her. However, during investigation, it was borne out that the revisionist Km. Sushma use to reside at her Grand Father's (Nana?s) place and on the date of incident she was not residing at Village-Chaphla, the place of incident. Various affidavits to this effect was given to the I.O. of the case by more than dozen of persons of the village, who could be safely termed as "independent persons" of the village, having no concern with either of the parties and consequently, the police have dropped the name of revisionist, Km. Sushma from the charge sheet and submitted report U/s 173(2) Cr.P.C. on 12.11.2013 against the rest of the named accused persons.

Since the case is triable by Sessions, therefore, the matter was committed to the court of Sessions by way of S.T. No. 115/2014 (State Vs. Shailesh Kumar and others) before Addl. Sessions Judge, Allahabad.

As soon as the charges were framed, the testimony of PW-1, Ramji Lal (informant) was recorded and continued upto 20.01.2017 and soon after its conclusion of testimony, an application U/s 319 Cr.P.C. was moved by the informant on 03.06.2017, though no orders were passed in the application U/s 319 Cr.P.C. dated 03.06.2017.

During the pendency of above 319 Cr.P.C. application, the testimony of PW-2, Lalji Yadav was also recorded on 29.07.2017 and was concluded on 31.8.17. Thereafter, yet another 319 Cr.P.C. application was moved on 27.09.2017 by the informant, Ramji Yadav with the prayer that on the facts and circumstances mentioned in the application, the non accused, Km. Sushma Yadav may also be summoned to face the trial and accordingly, the impugned order was passed on 21.02.2018 by learned trial judge.

This Court carefully perused the order impugned and other supporting documents which prompted the learned Sessions Judge to exercise his extraordinary powers U/s 319 Cr.P.C.

Learned Counsel for the revisionist emphatically submitted that this is the prevailing fashion of now a days, whereby in very cases of matrimonial discord or dowry death cases each and every member of the family are being named in commission of the offence as a revenge and to teach a bitter lesson to all of them, irrespective of the fact, their inter-se relationship, age and their physical condition and whether they could be a beneficiary of alleged "additional dowry". As mentioned in the FIR, there was demand of a golden chain on account the deceased was harassed whereas in the 161 statement of the informant as well as father of deceased, in place of golden chain, it has become motorcycle and lastly, during testimony, the harassment of deceased on account of both the articles i.e. golden chain as well as the motorcycle the deceased was allegedly maltreated by all the family members.

The learned counsel for the revisionist drawn the attention of the court to the observation made by Hon?ble Apex Court in the case of KANS RAJ VS. STATE OF PUNJAB & OTHERS [(2000)5 SCC 207], which reads thus:-

?5??. A tendency has, however developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parent of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.

The Court has, thus to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role."

Learned counsel for the revisionist has sited yet another judgment of same species Hon?ble Apex Court in the case of PREETI GUPTA AND ANOTHER VS. STATE OF JHARKHAND 2010 (3) SCC (Crl.) Page 473 and drawn the attention of the court with paragraph no. 32, 33 and 34 which are as under:-

32. It is a matter of common experience that most of these complaints under Section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under Section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint, the implication and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

Now coming to the justifiability of applying the provisions of Section 319 Cr.P.C. has relied upon his submissions to : -

(1) Haradeep Singh Vs. State of Punjab (2014) 3 SCC 92 (FB).

(2) Brijendra Singh and others Vs. State of Rajsthan (2017) 7 SCC 706.

(3) Labhuji Amratji Thakor and others Vs. State of Gujarat (2018) Law Suit (SC) 1163.

(4) Sugreev Kumar Vs. State of Punjab and others (Crl. Appeal No. 509/2019) decided on 15.3.2019 and lastly;

(5) Periyasami and others Vs. S. Nallasami (Criminal Appeal No. 465/2019 decided on 14th March, 2019.

I have heard learned counsels of both the parties, perused the records and citation produced in support of their contentions.

To start with, the latest judgment of Hon?ble Apex Court in the case of Periyasami and others Vs. S. Nallasami (Criminal Appeal No. 465/2019 decided on 14th March, 2019). Hon?ble Apex Court has categorically lay down that additional accused cannot be summoned U/s in exercise of powers U/s 319 Cr.P.C. in casual and cavalier manner in absence of strong and cogent evidence about his complicity in commission of offence. The Hon?ble Apex Court observed that mere disclosure of the name of some persons by the witnesses during the trial can not be said to be strong and cogent evidence to invoke the powers U/s 319 Cr.P.C. The court opined ?mere disclosing the name of revisionist cannot be said to be strong and cogent evidence to stand the trial for the offence U/s 319 Cr.P.C.?

In the instant case too, in the FIR, 161 statements, or testimonies of both the witnesses there is not a single whisper regarding the involvement of the present revisionists in commission of the offence. Admittedly, the husband Shailesh Kumar Yadav has got only one sister, i.e. the present revisionist as such her name was also dragged in this unfortunate incident. In facts all the family members were roped in, in commission of the offence without any specific role attributed to them..

Indeed, it is the mandate of the law and basic trite that the provisions contained U/s 319 Cr.P.C. is driven from the Latin doctrine; "judex damnatur cum nocens absolvitur" (which means; judges is condemned when guilty is acquitted). The idea behind, that this doctrine used as beacon light while explaining the ambit and spirit while enacting Section 319 Cr.P.C. 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 the real culprit as an accused, the court is not powerless in calling the said accused to face the trial but a million dollar of question arises as to (a) under what circumstances ? (b) at what stage of the trial ? (c) what should be degree of satisfaction of the court to exercise its extraordinary powers under Section 319 Cr.P.C.?. True, the courts are the sole repository of doing justice between the parties and uphold the rule of law in the country, then it would be inappropriate to deny the existence of such power with the court from our criminal judicial system, where it is not uncommon that real accused, at times, get away by manipulating the investigation and to cope-up with this situation, the courts are empowered this extraordinary powers by Section 319 Cr.P.C. which reads thus;

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 requires, 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.

So far as, the stage and degree of satisfaction required for invoking the section 319 Cr.P.C. the Constitutional Bench in the case of Haradeep Singh Vs. State of Punjab (2014) 3 SCC 92 (FB).

Para-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 Cr.P.C. 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 Vs. 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.

Para 105. Power under Section 319 Cr.P.C. 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.

Para 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."

When we translate the above mentioned golden guidelines, with the facts of the present case in hand, this court gathers an impression that the learned trial court has acted in most casual and cavalier manner while passing the impugned order dated 21.02.2018 against the revisionist. Admittedly, the revisionist was named in the FIR, this FIR was got registered by none other than the uncle of the deceased in which it has been narrated that on account of a golden chain, his niece Rupa Yadav was maltreated by all the named accused persons including the revisionist and on the fateful day he received an information regarding sad demise of Rupa Yadav. After having this information, the informant rushed to the place of occurrence and according to him, all the family members fled away from the site and he found the dead body of deceased in a charred condition. From this fact, he gather an impression that all the 4 persons might be were involved in commission of the offence as he is not an eye witness. During investigation, more than a dozen co-villagers have given their respective affidavits, (who are not related to the revisionist), mentioning the fact that since last 4-5 years she was residing at her grand partent's (Nana's) place and on 2.8.2013 the revisionist was taken away by her Mausi, Smt. Genda Devi and she was constantly residing at her Nani?s place from last 4-5 years and she was not present over the site when this unfortunate incident took place. This is triggring factor whereby the police has dropped her name (the revisionist) from the charge sheet.

No doubt, the trial court would be competent to exercise its powers even on the basis of such statements recorded before it as a testimony of witnesses, however, in the instant case, where there is plethora of evidence collected by the police during investigation which is suggested otherwise, the trial court was at least duty bound to look into the same while forming his prima facie opinion and has to see as to whether ?much stronger evidence than mere possibility of her (the revisionist) complicity has come one record?. I am afraid that in the impugned order, there is no satisfaction recorded or this aspect of the issue was ever delt with by trial court nature (Brijendra Singh and others Vs. State of Rajasthan).

The learned counsel for the revisionist has relied upon, yet another observation of Hon?ble Apex Court to buttress his contention inre: Labhuji Amratji Thakor & others Vs. State of Gujarat and another (Criminal Appeal No. 1349/2018) decided on 13.11.2018 has lay down that :-

?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.?

From the perusal of impugned order, it is clear that the police after holding an in-depth investigation after examining as many as 21 witnesses come to the conclusion that the revisionist was not even present over the site and as such on 21.02.2018 submitted charge sheet only against rest of the accused persons, minus the present revisionist.

Learned Sessions Judge in his order has mentioned that there is no documentary proof to the fact that she was residing at her Nana?s place from last 5-6 years. There could not be any documentary proof for the same except the affidavits of co-villagers.

On the contrary, the PW-1 and 2 in their respective testimonies have tried to raise a castle against the revisionist on an unfounded, uncorroborated fact that when informant reached on spot, prior to that none of the family members were present at their house and solely on this presumption, has lodged this FIR implicating all the family members of the husband . There is not a iota of evidence, as what role was played by the revisionist in commission of the offence. Everything, is in way, involving all the family members and therefore this court has got no hesitation to hold that this is the grossest misuse of this extraordinary remedy in summoning an unmarried nanad, who can not be said to be beneficiary of motorcycle or golden chain? as alleged and thus the order impugned deserves to be quashed in the light of ratio lay down by Hon?ble Apex Court, as discussed above.

The impugned order deserves to be quashed and accordingly the impugned order dated 21.02.2018 passed by Additional Sessions Judge, Court No.1, Allahabad in S.T. No. 115 of 2014 is hereby quashed and the instant revision stands allowed.

Order Date :- 27.3.2019

Abhishek Sri.