Chandrakesh And Another vs State Of U.P. And Another
2021 Latest Caselaw 3422 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 90
 
Case :- CRIMINAL REVISION No. - 667 of 2021
 
Revisionist :- Chandrakesh And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Ravi Shankar Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Pathak,J.

Vakalatnama filed by Sri Umesh Chandra Tiwari, Advocate on behalf of opposite party no. 2 is taken on record.

Heard learned counsel for the revisionists, learned A.G.A. for the State and Sri Umesh Chandra Tiwari, learned counsel for the opposite party no. 2.

The instant revision has been preferred to set-aside the impugned order dated 29.01.2021 passed by the Sessions Judge, Budaun in Sessions Trial No. 416 of 2017 (State Versus Karan Singh and Others) arising out of Case Crime No. 99 of 2017 under Sections 304/34, 308/34, 324/34, 336, 504, 506 I.P.C., Police Station Faizganj Behta, District Budaun whereby the application filed by the opposite party no. 2 under Section 319 Cr.P.C. has been allowed.

As per the prosecution case, on 19.4.2017 at about 1 p.m. all the accused as named in the first information report including the present revisionists came at the door step of the informant where he along with his father was sitting on the platform in front his house, abused him and thereafter, thrashed him and his father with bricks and sticks as a result of which his father sustained serious injuries. After ten days of the incident, his father succumbed to the injuries. After due investigation, the investigating officer has submitted charge-sheet only against four accused persons out of six wherein the present revisionists were not arraigned as accused. Feeling aggrieved, informant has moved an application under Section 319 Cr.P.C. to summon the present revisionists which has been allowed by the impugned order dated 29.1.2021.

Learned Trial Court has allowed the aforesaid application (23 Kha) after considering the deposition of PW-1 - Ram Raheesh, who has specifically stated that the Chandrakesh and Gram Sewak, the present revisionists, have beaten his father with bricks, and found it to be a fit case to summon the present revisionists.

Learned counsel for the revisionist has submitted that mere prima facie involvement of the accused in the commission of crime, as observed by the court below, is not sufficient to summon them, rather there should be a much stronger evidence than mere probability of his complicity.

A perusal of the order reveals that the Trial Court has given its finding after taking into consideration the documents available on record. Present revisionists were made as accused in the F.I.R. with an allegation that they had played active role in attacking the informant and his father.

Statement of PW-1 who has been examined by the prosecution has clearly corroborated the complicity of the present revisionists in the commission of crime. In support of his case learned counsel for the revisionist has cited the decision of Constitutional Bench of the Apex Court in the case of Hardeep Singh vs. State of Punjab & Others reported in 2014 (3) SCC 92. In the aforesaid cited case, the Apex Court has examined following five questions :-

In Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92, Court examined following five questions:

"(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 be 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?"

The aforesaid questions have been answered in para 117 of judgement as under:

Question Nos. (i) and (iii)

A. In Dharam Pal and Ors. v. State of Haryana and Anr. 2004 (13) SCC 9, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.

Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question No. (ii)

A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question No. (iv)

A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question No. (v)

A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh".

I have very carefully examined the submissions advanced by the learned counsel for the parties and gone through the record. After examining the materials available on record, I find that no case is made out for interference by this Court, while exercising revisional jurisdiction.

Counsel for the revisionist has not been able to point out any such illegality or impropriety or incorrectness in the impugned order which may persuade this Court to interfere in the same. There is also no abuse of court's process perceptible in the same which appears to have been passed after due application of judicial mind. All the facts and circumstances of the case have been appreciated in right perspective and even the law point on the issue has been duly discussed. It is true that summoning of an accused under Section 319 Cr.P.C. cannot be resorted to in a cavalier or casual manner. The standard of sufficiency of evidence which may justify the summoning of an additional accused under Section 319 Cr.P.C. is on much higher footing than the sufficiency of evidence which may persuade the court to summon an accused under Section 204 of Cr.P.C. but it does not go to mean that the standard of sufficiency of evidence in order to justify the summoning of an additional accused under Section 319 Cr.P.C. should be of the same level which is required to be applied at the time of final adjudication on the point of guilt and innocence of an accused. The ratio and obiter as laid down by the Constitution Bench of Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92, does not appear to have been ignored in this case.

The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge sheet is filed by police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C., Court has said that test are same as applicable for framing charge.

There is no illegality or perversity in the impugned orders in question which is hereby affirmed and the instant revision is dismissed.

cOrder Date :- 15.3.2021/nd