Shailendra Kumar Singh vs State Of U.P. & Another
2021 Latest Caselaw 3416 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 28
 
Case :- U/S 482/378/407 No. - 1142 of 2021
 

 
Applicant :- Shailendra Kumar Singh
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Manjusha Kapil,Ichchha Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Kunvar Srivastav,J.

1. The present application under Section 482 Cr.P.C. is moved to stay the operation and implementation of the order dated 04.02.2021 passed by the learned Additional Session Judge, Ist, Ambedkar Nagar through application under Section 319 Cr.P.C., in Session Trial No. 203/2016, Case Crime No.0093/2016, State Vs. Markandey Singh & Others, under Section 302 I.P.C., registered at Police Station Bheeti, District Ambedkar Nagar, pending in the court of Additional Sessions Judge-Ist, Ambedkar Nagar.

2. Heard learned counsel Ms. Manjusha Kapil, Advocate appearing on behalf of the applicant (the proposed accused) and learned A.G.A. for the State.

3. The crux of the argument delivered by learned counsel for the applicant are that-

i. The presence of accused at the spot of the crime is not established satisfactorily by cogent and material evidence before the court.

ii. Though, the name of accused was given in FIR but so far as the materials and evidence collected by the Investigating Officer during the investigation, there is no evidence on record against the applicant to show him committing any offence.

iii. The Investigating Officer dropped the name of applicant and submitted the charge sheet to the Magistrate for cognizance of offence against remaining accused persons named in the FIR.

iv. That even the evidence recorded by the court is also not satisfactory and sufficient to establish the presence of the accused on the spot of the crime when it was committed.

4. The preface to the context under which learned counsel for the applicant vehemently argued the illegality of the order dated 04.02.2021 passed by learned Additional Sessions Judge, Court No.1, Ambedkar Nagar over an application under Section 319 Cr.P.C. moved by the complainant/PW-1 namely Raunak Singh, sought by the applicant to be quashed by this Court exercising the extra ordinary power under Section 482 Cr.P.C. on the basis of point raised and referred hereinabove by learned counsel, it would be pertinent to have a look upon prosecution case, emerging from the first information report and further proceedings of the complainant/PW-1, Raunak Singh in the trial court during examination-in-chief, annexure no.2, the certified copy of first information report, whereupon the Case Crime No.93/2016, registered on the basis whereof, Sessions Trial Case No.203 of 2016, under Section 302 I.P.C., Police Station Bheeti, District Ambedkar Nagar is instituted and continuing.

5. In first information report, the prosecution version is that Raunak Singh, the informant, on 03.06.2016 at about 07:30 A.M. in the morning informed about the incident dated 02.06.2016, alleged to be committed some time at about 08:00 P.M. that informant's brother namely Deepak Singh (deceased), aged about 25 years, resident of village-Banganv, District Ambedkar Nagar, was about to leave, riding on his motor cycle for going to home at about 08:00 P.M. on 02.06.2016, one Chaitu, son of Jhapsi asked him that Shailendra Kumar Singh (proposed accused) @ Pappu Singh, resident of same village-Banganv, District Ambedkar Nagar has called him to meet immediately. The purpose, as disclosed by the informant for calling the deceased by aforesaid Shailendra Kumar Singh was, Shailendra Kumar Singh was excavating the soil from a pond from the village and some of the soil was laid before the house of the informant, of which cost, was due upon the informant and his family members, payable to the aforesaid Shailendra Kumar Singh. The aforesaid Chaitu, who asked the deceased, the brother of the informant, regarding the call of Shailendra Kumar Singh, is a driver of J.C.B. Machine under the employment of Shailendra Kumar Singh. Another driver under the employment of aforesaid Shailendra Kumar Singh is Markandey. It is alleged that the aforesaid drivers of J.C.B. machine, in collusion with Shailendra Kumar Singh, ran over the J.C.B. machine upon informant's brother, the deceased-Deepak Singh, as in the morning, the body of the deceased-Deepak Singh was seen badly damaged near the pond, where excavation of soil by Shailendra Kumar Singh was being done.

6. The reason is further disclosed by the informant that the excavation was being done illegally and the Shailendra Kumar Singh was under suspicion that information of the illegal excavation was given to the Mining Department by the deceased-Deepak Singh and he threatened him before witnesses namely Varunendra Pratap Singh and Tej Bahadur Singh that one day, he will kill Deepak Singh by running over him, the J.C.B. machine.

7. It is further alleged that the cost of soil laid down before the house of informant, costing to the tune of Rs.25,000/-, was carried on by the deceased so as to pay the aforesaid Shailendra Kumar Singh but the Rs.25,000/- was taken away from the deceased by Shailendra Kumar Singh and his companions and only the dead body was lying at the spot of incident.

8. The investigation was done in the light of information lodged by the aforesaid Raunak Singh. It is alleged by learned counsel that the evidences were collected by the Investigating Officer and on the basis of C.D.R. from the Telephone Department, the location of Shailendra Kumar Singh, as was not found at the alleged time of incident in village Banganv but it is shown that the named accused-Shailendra Kumar Singh was somewhere in district Prayagraj, therefore, the name of the aforesaid Shailendra Kumar Singh was dropped by the Investigating Officer while submitting the charge sheet before the Court, culminating the investigation.

9. Learned counsel submitted that the aforesaid dropping out the name of accused-Shailendra Kumar Singh from the charge sheet is on the basis of cogent material evidences which established the absence of accused-applicant and his non-involvement in the incident of killing deceased at village-Banganv.

10. Learned counsel assailed the order dated 04.02.2021 passed by the concerned court that despite the aforesaid cogent and material evidences establishing the absence of accused-applicant on the spot of crime as well as his non-involvement in the crime, learned court below only on the basis of statement of complainant, implicated the proposed accused-Shailendra Kumar Singh, allowing the application under Section 319 Cr.P.C. to call for the applicant for trial, which is illegal and baseless.

11. For easy reference, the provisions of Section 319 Cr.P.C. is being quoted hereunder:-

"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."

12. Since the matter is of illegality, as raised under Section 482 Cr.P.C. with a view to invoke inherent power of the Court vested in it so as to quash the order owing to the illegality in exercise of extra ordinary power of the Court, it would be pertinent to refer some guidelines, as laid down by Hon'ble the Apex Court from time to time.

13. Satisfying the scope and ambit of Court's power under Section 482 Cr.P.C., in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and other reported in 2007 (12) SCC 1. The relevant paras are being quoted hereunder:-

Scope and ambit of courts' powers under Section 482 CrPC

23.This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.

Discussion of decided cases

25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. InConnelly v. DPP [1964 AC 1254 : (1964) 2 WLR 1145 : (1964) 2 All ER 401 (HL)] Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys [1977 AC 1 : (1976) 2 WLR 857 : (1976) 2 All ER 497 [HL (E)]] stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved.

26. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

27. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

28. This Court in State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404] observed that the wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this Court and other courts.

32. In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] this Court in the backdrop of interpretation of various relevant provisions of CrPC under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: (SCC pp. 378-79, para 102)

"102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

14. In the light of the aforesaid provisions, when the matter is examined, where there is any deviation from the requirement of "prima facie satisfaction" of the Court with regard to the evidences, sufficient to call a person for trial in the case before the Court, it would be pertinent to mention that the applicant has himself placed a copy of the statement of PW-1, the complainant of the case, recorded by the trial court, from which, the entire narration of the role and involvement of proposed accused-Shailendra Kumar Singh is reiterated in very clear and unambiguous words.

15. Hon'ble the Apex Court in Brijendra Singh Vs. State of Rajasthan reported in AIR 2017 SC 2839 has elaborately discussed power under Section 319 Cr.P.C., when such power can be invoked by trial court. In para 13 of the judgment, the observation of Hon'ble the Apex Court is being quoted hereunder:-

"In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated:

Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ''evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The ''evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. 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 chargesheet 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."

16. The constitution Bench of Hon'ble the Apex Court in the case of Hardeep Singh Vs. State of Punjab & Ors. reported in 2014 (1) JIC 539 (SC) made following observations.

"6. Section 319 Cr.P.C. provides that 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. The Court, thus, during the trial on the basis of any evidence is fully empowered to proceed against any person, whose name was not even included in the F.I.R. or the Charge Sheet. The parameters of exercise of power under Section 319 Cr.P.C has been explained by this Court time and again. It is sufficient to refer to Constitution Bench judgment in Hardeep Singh (supra), where this Court had considered the following issue amongst others:-

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

7. The Constitution Bench judgment in the above judgment has held that under Section 319 Cr.P.C. Court can proceed against any person, who is not an accused in a case before it. The Constitution Bench, however, has held that the person against whom the Court decides to proceed, "has to be a person whose complicity may be indicated and connected with the commission of the offence".

8. Answering the Issue No.(iv) as noticed above, in Paragraph Nos. 105 and 106 of the judgment, following was laid down by the Constitution Bench:-

"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."

9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is "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." The present is a case, where the trial court had rejected the application filed by the prosecution under Section 319 Cr.P.C. Further, in the present case, the complainant in the F.I.R. has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure.

After carrying investigation, the Charge Sheet was submitted in which the appellants names were also not mentioned as accused. In the statement recorded before the Police, the victim has named only Natuji with whom she admitted having physical relations and who took her and with whom she went out of the house in the night and lived with him on several places. The mother of victim in her statement before the Court herself has stated that victim girl returned to the house after one and a half months. In the statement, before the Court, victim has narrated the entire sequence of events. She has stated in her statement that accused Natuji used to visit her Uncle's house Vishnuji, where she met Natuji. She, however, stated that it was Natuji, who had given her mobile phone. Her parents came to know about she having been given mobile phone by Natuji, then they went to the house of Natuji and threatened Natuji.

After one month, Natuji gave another mobile phone to the victim, who had taken it. She stated that in the night at 12 'o' clock, Natuji alongwith his three friends had taken her to Morbi in a jeep. She further stated that she and Natuji stayed for three days at the said place and Natuji had intercourse with her at the said place. When Natuji came to know about lodging of complaint, he took her to Modasa in the jeep. The jeep was given by Labhuji and other two appellants were also in the jeep. She further stated that Labhuji, Shashikant and Jituji came in the jeep and took her and Natuji to the Police Station, where the police interrogated her and she recorded her statement. Natuji was charged with Sections 363 and 366 I.P.C. and Sections 3 and 4 of the POCSO Act.

10. In the present case, there are not even suggestion of any act done by appellants amounting to an offence referred to in Sections 3 and 4 of the POCSO Act. Thus, there was no occasion to proceed against the appellants under POCSO Act.

11. Now, we come back to the reasons given by the High Court in allowing the Criminal Revision and setting aside the order of the POCSO Judge. The judgment of the High Court runs into four paragraphs and the only reason given by the High Court for allowing the revision is contained in paragraph No.3, which is to the following effect:-

"3. On going through the depositions of the victim as well as her mother, some overtact and participation on the part of the respondent nos. 3 to 5 are clearly revealing. But, this Court is not inclined to opine either way as the said fact was not stated before the police at the time of recording of their statements. But, taking into consideration the provision of Section 319 of the Criminal Procedure Code, this Court deems it appropriate to summon them and put them to trial.............................."

17. On the basis of above judgment of Hon'ble the Supreme Court and in the light of the provisions of Section 319 Cr.P.C., if the evidences referred by the learned counsel for the applicant is considered, the documents of C.D.R., obtained from the Department of Telecommunications show the changing of locations traced out from the mobile phones, handled by the accused-Shailendra Kumar Singh, his companions as well as by the deceased himself, show their locations even in the village-Banganv, district Ambedkar Nagar, where the spot of crime is situated. The location shown, rapidly varied from one place to another, starting from Ambedkar Nagar to Sultanpur and ultimately to Prayagraj district, therefore, the argument of learned counsel that there was sufficient cogent and reliable evidences with regard to the absence of accused on the spot of crime on the date of incident at any point of time, can not be said to be prima facie established, as there is no direct evidence with regard to the incident of killing and other evidences like last seen evidences and medical/post-mortem reports and doctor's report with regard to probable time of death are to be tested in the course of trial so as to tally with the C.D.R. information, as to the location and relevant time of the incident.

18. On perusal of the order impugned in this application, made annexure no.1 to the application, illegality is not found so as to invoke extra ordinary power of the Court to invoke it's jurisdiction under Section 482 Cr.P.C. to quash the impugned order passed by the trial court in exercise of it's own discretion exercise soundfully and legally to call for the accused-Shailendra Kumar Singh, named in the first information report and even in the examination-in-chief by the complainant.

19. The application is, therefore, devoid of merit and liable to be rejected.

20. Accordingly, the application under Section 482 Cr.P.C. is dismissed.

Order Date :- 15.03.2021

Saurabh

(Vikas Kunvar Srivastav,J.)