Ruqyya Bano vs State Of U.P. And 2 Others
2021 Latest Caselaw 571 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 81
 

 
Case :- APPLICATION U/S 482 No. - 18421 of 2020
 

 
Applicant :- Ruqyya Bano
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Sandeep Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. Sandeep Kumar Srivastava, learned counsel for the applicant, learned A.G.A. and perused the record.

2. The present 482 Cr.P.C. application has been filed to quash the order dated 08.01.2020 passed by Additional District & Sessions Judge (Fast Track Court-II), J.P. Nagar, (Amroha) in a Session Trial no. 11/2018 (State vs. Jakir and others), arising out of Case Crime No.63 of 2017, under Sections 498A, 323, 504, 506, 307 I.P.C. and 3/4 D.P. Act, Police Station-Didoli, District-J.P. Nagar(Amroha) whereby the application moved by the applicant-informant under Section 319 Cr.P.C. has been rejected.

3. It has been contended by learned counsel for the applicant that applicant is first informant and she has lodged F.I.R. against the accused-opposite party nos. 2 and 3 as well as other accused persons with the allegation that applicant was harassed by the accused persons for non-fulfilment of dowry demand. After investigation, opposite party no.2 and 3 were exonerated in an arbitrary manner without considering the evidence on record and they were not charge sheeted. It has further been submitted by learned counsel for the applicant that during trial, the statement of applicant-informant has been recorded as P.W.1 wherein the complicity of opposite party nos. 2 & 3 have been disclosed as accused for active participation in the said offence. Similarly, the statements of Mohammad Faizal (brother of applicant-informant) and Mahmoob (independent witness) have been recorded as P.W.3 & P.W.4 and they also deposed against the opposite party nos. 2 and 3. It has further been submitted by learned counsel for the applicant that in view of statements of P.W.1, P.W.3 and P.W.4, an application has been filed by applicant-informant under Section 319 Cr.P.C. for summoning of opposite party nos. 2 and 3 to face trial in the aforesaid case, but the same was dismissed by the concerned court below stating therein that opposite party nos. 2 and 3 were not present on the spot at the time of incident, therefore, they have no concern with the alleged crime. It has further been submitted by learned counsel for the applicant that the said application was dismissed by the concerned court below in arbitrary manner without considering the evidence on record as from the very beginning in the F.I.R., the name of opposite party nos.2 and 3 has been shown as an accused and during the course of evidence, three witnesses of the facts have been examined in which active role of opposite party nos. 2 and 3 have been assigned. It has further been submitted by learned counsel for the applicant that the impugned order dated 08.01.2020 is against the facts and law, thus liable to be set aside and matter may be remitted to learned trial Court to consider and decide application under Section 319 Cr.P.C. afresh.

4. Learned A.G.A. raised preliminary objection with regard to the maintainability of the application under Section 482 Cr.P.C. and has contended that the application under section 482 Cr.P.C against the rejection of the application under Section 319 Cr.P.C. by the trial court cannot be entertained as the applicant has surpassed the appropriate remedy of revision. Learned A.G.A. further submits that though, opposite party nos. 2 and 3 have been named in the F.I.R. but during investigation, their complicity in commission of alleged offence was not found, thus they were exonerated on the basis of material available on record and the charge sheet has been submitted only against Faizan (husband), Zakir (father-in-law) and Smt. Kharulnisha (mother-in-law). Learned A.G.A. further submits that from perusal of the records, no offence against the accused-opposite party No. 2 and No.3 is made out. The applicant-informant has filed application under Section 319 Cr.P.C., in order to falsely implicate and harass the accused-opposite party nos.2 and 3. It was stated that learned Court below, after appraisal of evidence on record, did not find any case against the opposite party nos.2 and 3 and has rightly rejected application under Section 319 Cr.P.C., which calls for no interference by this Court.

5. Before considering the merits of the case, it is necessary to refer to Section 319 Cr.P.C. which reads as under:-

"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 a fresh, and the 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."

6. The issue regarding exercise of powers under Section 319 Cr.P.C. has been considered by the Constitution Bench of the Hon'ble Apex Court in case of Hardeep Singh Vs. State of Punjab & others, reported in (2014) 3 SCC 92, wherein paragraph nos. 106 to 109, it has held as below:-

"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 319 CrPC to form any opinion as to the guilt of the accused.

107. Power under Section 398 Cr.P.C. is in the nature of revisional power which can be exercised only by the High Court or the Sessions Judge, as the case may be. According to Section 300 (5) Cr.P.C., a person discharged under Section 258 Cr.P.C. shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. Further, Section 398 Cr.P.C. provides that the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make an inquiry into the case against any person who has already been discharged.

108. Both these provisions contemplate an inquiry to be conducted before any person, who has already been discharged, is asked to again face trial if some evidence appears against him. As held earlier, Section 319 Cr.P.C. can also be invoked at the stage of inquiry. We do not see any reason why inquiry as contemplated by Section 300(5) Cr.P.C. and Section 398 Cr.P.C. cannot be an inquiry under Section 319 Cr.P.C. Accordingly, a person discharged can also be arraigned again as an accused but only after an inquiry as contemplated by Sections 300(5) and 398 Cr.P.C. If during or after such inquiry, there appears to be an evidence against such person, power under Section 319 Cr.P.C. can be exercised. We may clarify that the word trial under Section 319 Cr.P.C. would be eclipsed by virtue of above provisions and the same cannot be invoked so far as a person discharged is concerned, but no more.

109. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under

Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C."

7. Similarly, the above issue has also been discussed in the recent judgment of the Hon'ble Supreme Court in the case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another decided on 23rd July, 2019 passed in Criminal Appeal No. 1105 of 2019 arising out of SLP (Crl.) No. 2168 of 2019 and it was held as under:-

"9. The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, "the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are "it appears from the evidence"...."any person"...."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court."

10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly which reads as under:-

"105. Power under Section 319 CrPC 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 319 CrPC to form any opinion as to the guilt of the accused."

11. The above view was followed in Brijendra Singh as under:-

"13. In order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: ..... However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."

8. Keeping in view the above cited law, in the instant case, though opposite party nos. 2 and 3 have been named in the F.I.R. but during investigation, their complicity in commission of alleged offence was not found, thus they were exonerated on the basis of material available on record. Learned trial Court has also observed that at this stage it would not be appropriate to render any findings regarding appraisal of evidence and facts, which have emerged in cross examination of P.W.1, P.W.3 and P.W.4 as some other witnesses are yet to be examined, but held that there was no sufficient evidence against opposite party nos. 2 and 3, to summon them to face trial. Learned trial Court, after discussing the entire facts, concluded that no case against the opposite party nos. 2 and 3 is made for their summoning under Section 319 Cr.P.C., and thus application under Section 319 Cr.P.C. filed by the applicant has been rejected.

9. Considering the statements of witnesses and all attending facts and circumstances of the case as well as above stated position of law, it cannot be said that impugned order suffers from any such illegality, perversity or abuse of the process, so as to warrant any interference by this Court in exercise of powers under Section 482 Cr.P.C.

10. Instant application under Section 482 Cr.P.C. is bereft of merit and accordingly, it is dismissed.

(Manju Rani Chauhan, J.)

Order Date :- 11.01.2021

JK Yadav