Chandra Shekhar Singh vs State Of U.P. And Anr.
2021 Latest Caselaw 2995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 4th January, 2021
 
Delivered on 24th Februay, 2021
 

 

 
Court No. - 87
 

 
Case :- CRIMINAL REVISION No. - 3523 of 2019
 

 
Revisionist :- Chandra Shekhar Singh
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Kameshwar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This criminal revision has been filed under section 397/ 401 of Cr.P.C. against the interim order dated 28.8.2019 passed by Additional Session's Judge, Court No. 3, Ballia, by which the revisionist was summoned under section 319 Cr.P.C. to face trial under sections 306, 120-B I.P.C., Police Station Sikandarpur, District Ballia.

2. Brief facts of this case as such that on 25.9.2017 father of deceased namely, Rajendra Singh, lodged an F.I.R. with allegation that her daughter namely, Renu Singh, was married about 22 years ago with Rajesh Singh. Out of the said wedlock a daughter Sonali aged about 18 years and a son Aditya aged about 16 years born. Due to harassment of husband, Rajesh Singh, and father-in-law, Chandra Shekhar Singh, daughter of the first informant, Renu Singh, committed suicide. So F.I.R. was lodged by the first informant, Rajendra Singh, against the revisionist, Chandra Shekhar Singh, as well as his son namely, Rajesh Singh, under section 306 I.P.C. at police station Sikandarapur, District Ballia as Case Crime No. 703 of 2017.

3. After lodging the F.I.R. post mortem of the body of deceased, Renu Singh, was conducted on 25.9.2017 and doctor opined cause of death due to ante mortem hanging. During investigation, Investigating Officer recorded statements of the first informant, Rajendra Singh, and his wife, Shiv Kumari Singh, under section 161 Cr.P.C. They clearly deposed in their statements that revisionist, Chandra Shekhar Singh, was residing separately from Rajesh Singh (husband of deceased) and during investigation statement of villagers also recorded. Villagers also deposed that Chandra Shekhar Singh was living apart from main accused, Rajesh Singh, so the revisionist, Chandra Shekhar Singh, was exonerated from this matter and charge-sheet was submitted only against Rajesh Singh (husband of deceased). During trial three witnesses, PW-1 / Rajendra Singh, PW-2 / Sonali Singh and PW-3 / Smt. Shiv Kumari Singh have been examined before the trial court and all these witnesses never mentioned in their statements name of the revisionist, Chandra Shekhar Singh. Learned trial court on the basis of oral statement of witness, Om Prakash Singh, summoned the revisionist under section 319 Cr.P.C. to face above mentioned trial. Being aggrieved with the said order this revision has been filed by the revisionist.

4. Learned counsel for the revisionist submitted that learned trial court without any cogent and credible evidence available on record only on the basis of oral submission of witness, Om Prakash Singh, summoned the revisionist under section 319 Cr.P.C. to face trial under section 306 I.P.C and 120-B I.P.C. So in these circumstances, order passed by learned Additional Sessions Judge, Ballia is wholly illegal and improper and is only based on surmises and conjectures.

5. Learned counsel for the revisionist rely upon the judgments of Hon'ble Supreme Court in Labhu Jee Amrat Jee Thako and Others Vs. State of Gujrat, Criminal Appeal No. 1348/2018, SLP No. 6392/2018, Vijendra and Others Vs. State of Rajasthan, Criminal Appeal No. 763/2017, Hardip Singh Vs. State of Punjab 2014(3) S.C. Cases 92, Sunil Kumar Gupta and Others Vs. State of U.P. 2019 (108) ACC. In Sunil Kumar Gupta (supra) Hon'ble Supreme Court held that:-

9. Section 319(1) Cr.P.C. empowers the Court to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence for which such person could be tried together along with the accused. It is fairly well settled that before the court exercises its jurisdiction in terms of Section 319 Cr.P.C., it must arrive at satisfaction that the evidence adduced by the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as the accused in the case. In Hardeep Singh, the Constitution Bench held as under:-

"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.

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 319CrPC to form any opinion as to the guilt of the accused." [underlining added]

6. Learned counsel for the revisionist submits that order passed by learned A.D.J. Ballia is perverse and bad in the eye of law, hence order dated 28.8.2019 is liable to be quashed and revision is liable to be allowed.

7. Learned A.G.A. opposed the prayer of the revisionist by submitting that order dated 28.8.2019 passed by learned Additional Sessions Judge, Ballia is perfectly just and legal and there is no illegality or irregularity in the impugned order and after recording the sufficient reasons, trial court has passed this order so no interference warranted against the order of learned trial court. Hence, revision is liable to be dismissed.

8. I have considered the rival submissions made by the learned counsel for the revisionist and the learned A.G.A. and also perused the record.

Section 319 Cr.P.C.

"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 require, 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."

9. Learned counsel for the revisionist also rely upon judgment of hon'ble Supreme Court:- "In Hardeep Singh (supra) Hon'ble Apex Court has also examined scope and meaning of the word 'evidence' used in section 319 Cr.P.C. i.e. Whether it is examination in chief only or also together with cross-examination? The Court relying upon the decisions in the cases of Rakesh Vs. State of Haryana [2001 (43) ACC 392 (SC)]; Ranjit Singh Vs. State of Punjab [AIR 1998 SC 3148]; Mohd. Shafi Vs. Mohd. Rafiq and Another [AIR 2007 SC 1899]; Harbhajan Singh and Another Vs. State of Punjab and Another [(2009) 13 SCC 608] and held in paragraph 85 of the judgment as under :

"85. Thus, in view of the above, we hold that power under section 319, Cr.P.C. can be exercised at the stage of completion of examination in chief and Court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the Court recorded by the Court, in respect of complicity of some other person(s), not facing the trial in the offence."

10. The word "evidence" in section 319 Cr.P.C. contemplates the evidence of the witnesses given in the court. Therefore, 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 court the court is of the opinion that a person not an accused before it has also committed the offence, it may summon such person under section 319 Cr.P.C. In Hardeep Singh Vs. State of Punjab and Others [2014 (85) ACC 313] Hon'ble Apex Court has also examined the scope and meaning of word "evidence". In which Hon'ble Apex Court held that:-

"99. 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 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."

11. It is pertinent to mention that in this case neither the complainant nor the public prosecutor has moved the application under section 319 Cr.P.C. regarding summoning of the revisionist. Learned trial court suo motu summon the revisionist to face the trial under sections 306, 120-B I.P.C. Now the question arises that whether without recording the evidence and only by putting two questions to the alleged witness, Om Prakash, and after recording the oral reply, learned trial court is competent to summon the revisionist to face trial. Under Section 165 of Evidence Act, the trial court have ample power to put question in order to discover relevant fact. But power under section 165 of Evidence Act is permissible only when the evidence as deposed by witness recorded in the court. Oral statement of the witness does not come into purview of the evidence. So only on the basis of oral examination of the witness, learned trial court hypothetically only on the basis of assumption and presumption summon the revisionist under section 319 Cr.P.C. Since neither the chief-examination nor the cross-examination of the witness was recorded by the learned trial court, so only on the basis of query by learned trial court or only on the basis of oral submission of witness wrongly summoned the revisionist under section 319 Cr.P.C., which is not permissible in the eye of law. Order of the learned trial court is totally based on surmises and conjectures. Learned trial court has committed irregularity and illegality, so in these circumstances, revision is hereby allowed and impugned order dated 28.8.2019 passed by learned Additional District Judge, Court No. 3, Ballia is hereby quashed.

12. Revision is allowed.

13. A copy of this order be communicated to the lower court for necessary compliance.

Order Date: 24th February, 2021

Vibha Singh