Deepak Singh & Anr. vs State Of U.P. & Anr.
2021 Latest Caselaw 2201 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							Reserved  "AFR"
 

 

 
Case :- U/S 482/378/407 No. - 6256 of 2019
 

 
Applicant :- Deepak Singh & Anr.
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Applicant :- Ajai Kumar Singh, Shobhit Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Saroj Yadav,J.

1. This petition has been filed by the petitioners praying to quash/set aside the order dated 10.05.2019 passed by learned Additional Sessions Judge, Court No. 11, Hardoi in Sessions Trial No. 47/18 (State Vs. Dharamveer Singh and Others) and Crime No. 203/17.

2. Heard learned counsel for the petitioners, learned counsel for the opposite party no. 2 and learned Additional Government Advocate appearing on behalf of the State.

3. Learned counsel for the petitioners submitted that the petitioners were named in the first information report but after investigation, the Investigating Officer found that the petitioners were not present in the Village at the time of incident and the location of the petitioner no. 1 was in Delhi and Haryana since 01.10.2017 till 15.10.2017, whereas the alleged incident took place on 12.10.2017. The petitioner no. 2 is the wife of the petitioner no. 1 and she is residing with him. Both the petitioners are residing separately since 2015, the petitioner no. 1 is doing a private job in Delhi. On the basis of the evidence collected during investigation, the Investigating Officer did not find any involvement of the petitioners in the alleged crime, as such, he dropped the names of the petitioners but during trial, the informant moved an application under Section 319 Cr.P.C. for summoning the petitioners as accused and learned Trial Court allowed the same without considering the material available on record i.e. call details of the petitioner no. 1, availed by the Investigating Officer. Learned counsel for the petitioners further submitted that learned Trial Court has passed the impugned order summoning the petitioners as accused persons only on the basis of the evidence of P.W. 1 to 4, which is not justified, so the impugned order should be quashed.

4. Learned counsel for the petitioners has relied upon the judgment of the Apex Court in the case of Brijendra Singh & Others Vs. State of Rajasthan (2017) SC 2839 decided on 27.04.2017.

5. Contrary to it, learned counsel for the informant as well as learned A.G.A. appearing on behalf of the State opposed the arguments advanced by the learned counsel for the petitioners and submitted that while deciding the application moved under Section 319 Cr.P.C., learned Trial Court has to take into consideration only that evidence and material which is available on record. In this matter, learned Trial Court considered the evidence of the witnesses of facts examined in the Court and on the basis of that evidence has passed the order, which is legally correct because in the case of Hardeep Singh Versus State of Punjab and Others 2014(3) SCC 92, the Hon'ble Apex Court has made it clear that only that evidence will be considered which is produced before the Court, hence, the order passed by the learned Trial Court on the basis of the statements of witnesses P.W. 1 to 4 is perfectly correct and this petition deserves rejection.

6. Considered the submissions of both the sides and perused the case laws cited above.

7. Learned counsel for the petitioners relied upon the following extract of the case of Brijendra Singh & Others Vs. State of Rajasthan (Supra).

"In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word ''evidence' used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word ''evidence' is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word ''evidence' has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that ''evidence' under Section 319 Cr.P.C. could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence.

8. In Hardeep Singh Vs State of Punjab (Supra) the Constitution Bench of Hon'ble Apex Court has held that "for the exercise of power under Section 319 Cr.P.C., the use of word `evidence' means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319 Cr.P.C. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation."

9. Perusal of the impugned order shows that the learned Trial Court has passed the impugned order summoning the accused persons on the basis of evidence of P.W. 1 to 4. All these witnesses were cross-examined by the counsel of the defence. The statements of above-mentioned witnesses are available on the record. They all have stated that the petitioners along with other accused persons used to demand dowry and used to torture and harass the deceased and the petitioners were also involved in the crime. As far as the call details are concerned, those can be considered only when these are duly proved at proper stage.

10. Hence, in the light of the discussions made herein above and the law laid down by the Apex court, there appears no illegality or infirmity in the impugned order, therefore, the petition deserves rejection.

11. The petition under Section 482 Cr.P.C. is, accordingly, dismissed.

Order Date :- 10.02.2021

Arun