Mahendra Pratap vs State Of U.P. And Anr
2021 Latest Caselaw 3263 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 23.2.2021  
 
Delivered on  10.3.2021
 
Court No. 87
 
Case :- CRIMINAL REVISION No. - 3827 of 2019
 
Revisionist :- Mahendra Pratap
 
Opposite Party :- State Of U.P. And Anr
 
Counsel for Revisionist :- Om Prakash Rai.
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This criminal revision has been preferred against summoning order dated 17.8.2010 and against the entire proceedings of S.T. No. 2 of 2010 arising out of case crime no. 111 of 2008 under Sections 420, 406, 307, 427 I.P.C. P.S.- Sirsaganj, District- Firozabad.

2. Brief facts of this case are as follows-:-..

First informant lodged an F.I.R. by means of the application under Section 156 (3) Cr.P.C. with the allegation that Ajit Kumar and Santosh Kumar, both sons of Jogendra P.S. Narkhi, District- Firozabad were good friend of the first informant. Interview for Class-IV Employee was fixed on 18.11.2006 in the C.M.O. Office, Firozabad and nephew of the first informant and Vipin Kumar were aspirants for Class IV post then Ajit Kumar and his brother Santosh Kumar stated that his maternal uncle Mahendra Pratap is very influential person and has approach in the Health Department, Lucknow and both of them arranged a meeting with Mahendra Pratap and Mahendra Pratap gave assurance for aforesaid arrangement and for the same they demanded Rs. 1,50,000/- each then on 26.11.2006 informant gave Rs. 3 lacs in house to Ajit and Santosh and when a long period elapsed they could not make any arrangement for appointment on the Class IV to his nephew and to his friend and so the first informant demanded to return Rs. 3 lacs. On the aforesaid demand Santosh Kumar handed over a cheque of Rs. 1, 20,000/- bearing no. 873611 to the first informant with the assurance that remaining amount shall be given after some time but when the said cheque was given in the Bank then the same has become dis-honoured. After this even the first informant strictly demanded money then date was fixed on 6.4.2008 for settlement of dispute then the informant and his relative Ram Sanehi went to the place fixed by the accused on the motorcycle and when they reached the place of occurrence and met the accused, Ajit Kumar, Virendra Kumar and Mahendra Pratap. All the three accused persons threatened first informant and his relative and started firing with intention to kill them but any how both of them i.e. first informant and his relative saved their lives. When they returned and tried to lodged F.I.R. against the aforesaid three accused persons at the police station but the report has not been lodged by the Police then informant gave a written information to the S.S.P., Firozabad for lodging the F.I.R. He also lodged his case by means of the application under Section 156 (3) Cr.P.C..

3. After lodging the F.I.R. Investigating Officer investigated the matter and submitted the charge sheet against the two accused, Ajit Kumar and Virendra Kumar on 10.5.2009 and 16.11.2008 respectively. During Investigation, the Investigating Officer came into conclusion by means of case diary entry that further action against the revisionist is not justiceable. After submitting the charge sheet case was sent to the Magistrate Court where the case was registered as S.T. 2/2010 where charge was framed against the accused persons, Virendra Kumar and Ajit Kumar under Sections 420, 406, 307 and 504 I.P.C. During the pendency of the investigation first informant moved an application supported with an affidavit on 3.10.2008 before the S.S.P. Firozabad that he had obtained Rs. 1,50,000/- from Virendra and Rs. 1 lacs out of remaining Rs. 1,50,000/-will be given within nine months by Ajit Kumar to the first informant and if Ajit Kumar failed to deposit the aforesaid money then accused- Virendra Kumar shall pay to the first informant. By means of compromise affidavit the first informant stated that he does not want any further action against the revisionist.

4. After submitting the charge-sheet statement of P.W.-1, Balveer Singh was recorded on 16.7.2010 and after chief examination of the P.W.-1 P.W.-1 Balveer Singh and first informant moved an application under Section 319 Cr.P.C. on 9.8.2010 for summoning the revisionist. On the basis of the application under Section 319 Cr.P.C. learned trial court summoned the revisionist on 17.8.2010 to face the trial under Section 420, 406, 307 and 504 I.P.C. and summoned was issued against the revisionist. On 27.9.2014 cross examination of the P.W.-1 was conducted. P.W.-2 S.I. Mahesh Chandra Pal was also examined on 27.9.2014 before the trial court. Learned trial court acquitted Ajit and Virendra on the basis of contradictory statement of P.W.-1, Balveer.

5. During trial no notice or summoned was served upon the revisionist and therefore, learned trial court separated the trial of the revisionist on 8.4.2015 and its number as S.T. No. 500 of 2016 and trial of S.T. No. 2 of 2010 are still going on. On 9.4.2015 Co-accused Virendra and Ajit were acquitted against the charge levelled against them.

6. I have heard learned counsel for the revisionist as well as learned A.G.A. for the State/opposite party no. 2 and perused the record.

7. Learned counsel for the revisionist contended that on perusal of the judgment of the learned trial court it reveals that the informant has become hostile and denied the version of the first information report and therefore, there is no evidence against the accused and learned trial court acquitted the co-accused Virendra and Ajit. He further submitted that considering the entire evidence it appears that there is no evidence against the revisionist to punish him. On the basis of the judgment of the co-accused and on the basis of principle of stare decisis, learned counsel for the revisionist submitted that since the co-accused has already been acquitted and no evidence is available on record so he prayed that in the interest of justice summoning order against the revisionist and entire proceedings against the revisionist is liable to be quashed.

8. Learned A.G.A. vehemently opposed the prayer made by the learned counsel for the revisionist and submitted that on the basis of examination in chief the co-accused were summoned to face the trial under Section 319 Cr.P.C. It also been submitted by the learned A.G.A. that revisionist was named in the F.I.R. and in the examination in chief first informant supported version of the first information report and there is sufficient evidence against the revisionist. Thus, there is no irregularity or impropriety in the order of the Sessions Trial Court. Hence, revision of the revisionist is groundless and is liable to quashed.

9. In support of his contention, learned counsel for the revisionist has placed reliance on the judgment passed in Application U/s 482 No. 18792 of 2017 (Aagoshe Iram Vs. State of U.P. and Another) decided on 12.9. 2017 and has place reliace on the following paragraphs of the judgment:-

"Learned counsel for the applicant has submitted that since the husband and other in-laws, who were the main accused in this case, have been acquitted after conclusion of their trial, the applicant, who was minor 'Nanad' (sister-in-law) of the first informant and who was not the direct beneficiary, should not be tried unnecessarily. Moreso, when the chances of her conviction are remote. Learned counsel for the applicant has further submitted that in several cases, this Court has quashed the entire proceedings on the principles of doctrine of "stare decisis." Reliance has been placed on three judgments of this Court rendered in the cases of Sanju @ Sanjeev Kumar Vs. State of Uttar Pradesh, 2005 (3) JIC 243, judgment and order dated 21.12.2004, passed in the case of Ranvir Vs. State of U.P., Criminal Misc. Application No.14756 of 2004 and in Criminal Revision No.380 of 1987, Ayodhya Prasad Vs. State of U.P. & Anr. and a judgment of the Hon'ble Apex Court rendered in the case of Diwan Singh Vs. State, 1965 (2) 118 wherein it has been held by Hon'ble Apex Court that,

"If two persons are prosecuted though separately, under the same charge for offences having been committed in the same transaction and on the basis of the same evidence, and if one of them is acquitted for whatever may be the reason and the other is convicted, then it will create an anomalous position in law and is likely to shake the confidence of the people in the administration of justice."

A perusal of the judgments of this Court, cited by learned counsel for the applicant shows that the facts of the case of Sanju @ Sanjeev Kumar (supra) were almost the same as the facts of the case in hand. In the aforesaid case also, the applicant being below the age of 16 years, was declared juvenile and his filed was separated. The co-accuseds were put to trial and were acquitted by the learned trial court. The witnesses of occurrence were the same in both the cases, therefore, this Court held that if the applicant is put to trial, he will have to face unnecessary harassment without any result. This court quashed the entire proceedings observing as under:

"It is settled view that this Court in exercise of power under Section 482 of the Code of Criminal Procedure, may quash the proceedings of the trial taking into account the principle of stare decisis. Whenever, there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted for holding trial only for the purpose of completing the procedure to pronounce the conclusion on a future date. In such matter, it is always advisable to terminate the proceedings at the stage of discharge."

10. On the perusal of record and charge-sheet dated 16.11.2008 it appears that the name of the revisionist was mentioned in the charge-sheet as a suspected accused. Name of the revisionist was also mentioned in the F.I.R. but learned counsel for the revisionist failed to show that whether Final Report was submitted against the revisionist or not or whether investigation is going on against the revisionist or not.

11. Chief Examination of the first informant was conducted on 16.7.2010 in which he clearly stated that main perpetrator of the crime is revisionist. He also clearly stated that co-accused Ajeet, Virendra and Revisionist, Mahendra Pratap called the first informant on the alleged date of incident i.e. on 6.4.2008 at Aranv Road Pulia at 12:00 noon and when first informant reached along with his relative Ram Sanehi then all the co-accused abused and threatened the first informant and his relative then the revisionist as well as co-accused started firing by country made pistol with intention to kill the first informant but any how first informant and his relative save their lives.

12. The main contention of the learned counsel for the revisionist is that learned trial court has summoned the revisionist only on the basis of Chief examination dated 27.9.2014 of the first informant- Balveer Singh but in cross examination P.W.-1 clearly deposed that the revisionist was not present on the alleged date and time of the incident. On perusal of the chief examination the name of the revisionist has been mentioned as active role in this incident and the learned trial court summoned the revisionist only on the basis of chief examination. In the revisional jurisdiction, the revisional court has a limited power to see whether any irregularity or illegality or any jurisdictional error has been committed by the trial court for summoning the accused.

13. Provisions of the Section 319 Cr.P.C. is quoted below:-

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."

14. Now the question arise whether the accused can be summoned after the chief examination of the witness or at what stage power under Section 319 Cr.P.C. can be exercised. Answer of this question are answered by the Hon'ble Apex Court in Hardeep Singh vs State Of Punjab & Ors decided on 10 January, 2014 1947 (Criminal Appeal No. 1750 of 2008), which are as under :

(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

(ii) Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

(iii) Whether the word "evidence" used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?

(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

15. The Hon'ble Supreme Court in the case of Hardeep Singh (supra) has discussed the legal position and relevant paragraphs of the said judgment are as under :-

"82. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence."

---"84. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness(s) prior to passing of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(s) is obliterating the role of persons already facing trial. More so, Section 299 Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein.

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 which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.

Q. (iv) What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C.?

--------98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.

16. If the instant case is examined in view of the aforesaid settled legal position, there is nothing to show that finding of fact recorded by the learned trial court are perverse and based on no evidence or the learned trial court has arrived a contrary conclusion from the evidence available on record. The case law of Aagoshe Iram Vs. State of U.P. and Another (supra), which has been relied by the learned counsel for the revisionist is not applicable to the present case, as in this case this Court is not sit in the jurisdiction of inherent power of the Court under Section 482 Cr.P.C. That ruling /case law was related with the provision of 482 Cr.P.C. i.e. inherent power of this Court. Factual aspect of the summoning order under Section 319 Cr.P.C. shall be considered by this Court bearing in mind the scope of revisional jurisdiction.

17. The case requires to be considered not only bearing in mind the aforesaid proposition of law but also considering that the powers of Revisional Court against such an order are very limited for the reason that in revisional jurisdiction the Court satisfies itself as to the correctness, legality and propriety of any finding, sentence or order and as to the regularity of the proceedings of the inferior Criminal Court.

18. In Amur Chand Agrawal v. Shanti Bose and Anr., AIR 1973 SC 799, the Hon'ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

19. In State of Orissa v. Nakula Sahu, AIR 1979 SC 663, Hon'ble Supreme Court, placing reliance upon a large number of its judgments including Akalu Aheer v. Ramdeo Ram, AIR 1973 SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system".

20. In State of Karnataka v. Appu Balu Ingele, AIR 1993 SC 1126=II (1992) CCR 458 (SC), Hon'ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to reappreciate the evidence. In Pathumma and Anr. v. Muhammad, AIR 1986 SC 1436, the Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".

21. On the foregoing discussion, this Court is of the view that learned trial court rightly summoned the revisionist under Section 319 Cr.P.C. to face the trial, as there is no illegality, irregularity, perversity or jurisdictional error in the order of the learned trial court and therefore, no interference is warranted by this Court to interfere, the order passed by the learned trial court for summoning the revisionist to face the trial in the present case.

22. In view of above mentioned scenario, this revision is devoid of merit and is liable to be dismissed.

23. The revision is, accordingly, dismissed.

24. A copy of this order be communicated to the learned trial court for necessary compliance.

Order Date:- 10.3.2021

Anuj Singh