Allahabad High Court
Sharif Ahmad @ Fareed Ahmad And 3 ... vs State Of U.P And Another on 2 August, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 49
Case :- CRIMINAL REVISION No. - 1447 of 2021
Revisionist :- Sharif Ahmad @ Fareed Ahmad And 3 Others
Opposite Party :- State Of U.P And Another
Counsel for Revisionist :- Vipul Kumar Singh,Amit Daga
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Amit Daga, learned counsel for the revisionists and Sri Janardan Prakash, learned AGA for the State.
2. This Criminal Revision has been filed by the revision-petitioners seeking quashing of the summoning order dated 01.02.2021 passed by learned Additional Sessions Judge, Court No.1, Jhansi in S.T. No.07 of 2015; State of U.P. Vs. Raju Nai, under Section 307 IPC and Section 7 Criminal Law Amendment Act, Police Station-Nawabad, District-Jhansi arising out Case Crime No.419 of 2014.
3. Learned counsel for the revision-petitioners submits that the whole dispute is basically a civil dispute, inasmuch as, in 2005 one, Mehraj Begum had made a gift in favour of revision-petitioner nos.2, 3 and 4. Later on, she rescinded the gift. Suit was filed; it was dismissed; later on, restored and then ex-parte decree was passed. Later on, this ex parte order was recalled and the allegation is that, Mehraj Begam has filed a case against the accused persons bearing No.190 of 2006. Accused persons were pressurizing the complainant to withdraw his Vakalatnama. One day prior to the incident, accused Sharif Ahmad @ Fareed Ahmad had a dispute with Chaudhary Masood, who is husband of Mehraj Begum. Fareed Ahmad had threatened Chaudhary Masood with his life. A complaint in this regard was filed before the concerned police station. Allegation is that accused persons are having vested interest and always try to resist appearance of the complainant in the Court by either beating him or threatening him.
4. Learned counsel for the revision-petitioners submits that vide impugned order, an Application under Section 319 Cr.P.C. has been allowed, summoning the present revisionists, despite the fact that one Raju Nai, against whom after investigation, charge-sheet was filed has admitted his crime and categorically deposed before the court concerned that he had entered into a contract to kill Babele Vakil Sahab for a sum of Rs.2,00,000/-(two lakhs) and had received advance of Rs.20,000/- from Chaudhary Masood. It is submitted that in terms of this admission made by Raju Nai and, thereafter, an Application was moved on behalf of Raju Nai, that proceedings in the case be expedited. It is evident that once, Raju Nai has taken responsibility for the incident, there is no justification for summoning the present revisionists to the Court.
5. It is further submitted that another Application-66A under Section 319 Cr.P.C. was filed by A.D.G.C. (Cri.) on 08.08.2019 seeking summoning of Chaudhary Masood son of Mansoor, and Babu @ Sadik son of Chaudhary Masood to be summoned to the Court.
6. Learned counsel for the revisionists has placed reliance on the judgment of Supreme Court in case of Mani Pushpak Joshi Vs. State of Uttarakhand and another; (2019) 9 SCC 805, wherein, relying on the law laid down in case of Hardeep Singh Vs. State of Punjab and others; (2014) 3 SCC 92, principles for issuance of summons under Section 319 Cr.P.C. have been reiterated. It is submitted that in absence of prima facie case of the standard laid down in case of Hardeep Singh (supra), Court should not have exercised its power under Section 319 Cr.P.C.
7. Learned AGA, in his turn, submits that FIR was lodged registering Case Crime No.419 of 2014, in which present revisionists namely, Sharif Ahmad @ Fareed Ahmad, Mohd. Masroor, Chaudhary Aslam Sher and Mohd. Mustakeem are named accused. It is submitted that as per the Medical Examination Report of the injured, namely, Madan Lal Babele, had sustained fire-arm injury, which were in the shape of lacerated wound present on inner scapular region of size 0.5 c.m. in diameter L back region and fresh bleeding present. (2). LW present over Rt. side of chest V 'o'clock position from Rt. nipple of size 1.7 c.m. at above nipple of size 1.5 c.m. in diameter fresh bleeding present.
8. Reading this medical report, it is submitted that provisions of Section 307 IPC are attracted.
9. It is submitted that law laid down in case of Mani Pushpak Joshi (supra) as well as Hardeep Singh (supra) is crystal clear, and is to the effect that law is well settled that materials which have come before the Court in course of inquiry can be used for (i) corroboration of evidence recorded by Court after commencement of trial, (ii) for exercise of power under Section 319, and (iii) also to add an accused whose name is shown in Col.2 of the charge-sheet.
10. In the present case, it is an admitted position that name of the present revisionists is mentioned in the FIR. Later on, witnesses in their evidence before the Court have taken names of the present revisionists and have shown their presence at the place of the incident. In para 68 of the judgment in case of Hardeep Singh (supra), Supreme Court has held as under:-
"Even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added (as an accused) to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet the case diary do not constitute evidence."
11. Similarly, in paragraph nos.105 of 106, it has been held that power under Section 319 Cr.P.C. is a discretionary and an extraordinary power and 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 present case, all such ingredients are available and, thereafter in case of Brijendra Singh and others Vs. State of Rajasthan; (2017) 7 SCC 706, again, the principles have been summarized, as to when, can power under Section 319 Cr.P.C. can be invoked by trial court and what should be the degree of satisfaction required for invoking it. In fact, the concept of fair trial is based on the doctrine judex damnatur cum nocens absolvitur (judge is condemened when quilty is acquitted). Constructive and purposive interpretation should be adopted so as to advance the object and cause of justice. Court should give full effect to words used in the provision in the light of the Articles 20 and 21 so to have a fair trial.
12. In para-9 in case of Brijendra Singh and others (supra), Supreme Court placing reliance on a Constitution Bench judgment in case of Hardeep Singh Vs. State of Punjab (supra), and in view of such facts and the material, which has come on record and the fact that law laid down in case of Mani Pushpak Joshi (supra) too is a further elaboration and discussion of law laid down by Constitution Bench in Hardeep Singh (supra), I am of the opinion that statements of the victim-Madan Lal Babele, Sageer Ahmad, Arvind Kumar Ahirwar are sufficient to draw a satisfaction that a case is made for summoning of the present revision-petitioners, and that order does not suffer from any illegality or non-application of mind, therefore, Criminal Revision is bound to fail and is dismissed.
Order Date :- 2.8.2021
Ashutosh
