Atul And Another vs State Of U.P. And Another
2022 Latest Caselaw 1574 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- CRIMINAL REVISION No. - 191 of 2022
 

 
Revisionist :- Atul And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Suryaprakash Sharma,Dr. C.P. Upadhyay
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Dr. C.P.Upadhyay, learned counsel for the revisionists and learned AGA for the State.

Pursuant to the earlier order of this Court, learned AGA has filed counter affidavit annexing the charge sheet, which is taken on record.

By means of the present criminal revision, the revisionist is assailing the legality and validity of the order dated 04.12.2021 passed by learned Additional District & Sessions Judge, F.T.C., Meerut whereby allowing the application under Section 319 Cr.P.C. by which the revisionists were summoned to face the Sessions Trial No. 379 of 2011 arising out of case crime no. 806 of 2012 under Sections 376 and 302 IPC read with Section 120B IPC against non accused person Atul son of Narpat, under Sections 376 and 302 IPC, Narpat son of Shobharam under Sections 376, 302, 120B and 201 IPC and Navratn under Sections 376, 302 and 120B IPC, P.S. Gaon Majra, District Meerut.

Contention raised by the counsel for the revisionist that the present FIR was lodged by one Tejveer Singh son of Hariya on the same day of incident i.e. 21.11.2012 under Sections 302, 376 IPC, P.S. Inchauli, District Meerut against Sheeshpal @ Vishambhar.

The long and short of the prosecution case as borne out from the FIR, is that the informant's sister Geeta was a cook in the local primary school with whom the deceased Avika @ Baguli aged about 4 years used to accompany her to the school where she was studying. On the date of incident she was found in a precarious condition in the near agricultural having the injury over her right eye and neck and when she was rushed to the medical hospital she was declared dead. On the place incident there was recovery of photo identity card of Sheeshpal @ Vishambhar and from which it has been gathered that it is Sheeshpal @ Vishambhar who is main culprit of the incident.

Submission made by the counsel that during investigation various material was collected by the Investigating Officer prima facie indicting Sheeshpal @ Vishambhar as an accused.

All of sudden after lapse of more than two months an application was moved by the father of the deceased on 14.01.2013 addressed to the "District Magistrate, Meerut" changing the cannon of the gun from Sheeshpal @ Vishambhar to Narpat son of Shobharam, Atul @ Chhotu son of Narpat and thereafter the entire tirade of allegation was levelled against these two named accused persons.

It is argued by the learned counsel for the revisionist, that investigation was taken away from earlier Investigating Officer and was entrusted to some other Investigating Officer, who too after making indepth probe into the matter has submitted the report under Section 173(2) Cr.P.C. on 24.02.2013 solely against Sheeshpal @ Vishambhar. The cognizance was taken. Since the matter was non cognizable offence and to be tried to the court of Sessions. The matter was committed to the court of Sessions accordingly.

From the aforesaid, it is ample clear that the entire case hinges upon circumstantial evidence and there is no ocular testimony of the incident and therefore, the court should be more vigilant and careful in summoning the non accused persons in exercise of power under Section319 Cr.P.C.. After committal of the case, six witnesses were examined including the first informant Ms. Geeta (Bua of the deceased) with whom the deceased went to school on the fateful day. It is surprising that the court has perused the testimony of Rajkumar, father of the deceased, Smt. Rekha, mother of the deceased and Smt. Geeta, bua of the deceased require special attention for determination of present revision.

I have carefully gone through all the testimonies and I am afraid to gather any confidence general material specifically indicting the non accused persons, revisionists in the commission of the offence. It is more startling that main accused person i.e. Sheeshpal @ Vishambhar against whom the charge sheet was submitted his complicity was dropped by these witnesses from their respective testimonies. Ms. Geeta in her testimony states that she met with Atul, revisionist no.1 while coming and he seems to be panic stricken and therefore she gathered an impression that he might be involved in the commission of the offence. Ms. Rekha, the mother of the deceased in her testimony states that she has given a birth to a baby 4-5 days back and she has confined herself in a room and therefore no occasion for her to visit the place of occurrence. All the testimonies are taken into consideration a zig-zag figure is shown which do not generate adequate confidence for the exercise of power under Section 319 Cr.P.C..

Learned counsel for the revisionists in this regard has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C. :

"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

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.

Learned counsel for the revisionists has further drawn the attention of the Court to para-12 of the above judgement:

"12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused."

Learned counsel for the revisionists has further submitted that the revisionists even not named in the F.I.R. and after thorough investigation the police too has not included the name of the revisionists in the chargesheet, even then the learned trial court has summoned the revisionists exercising his power u/s 319 Cr.P.C. in a cavalier fashion and without having any cogent evidence against them. Learned counsel for the revisionists in this regard has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019, in which it has been held that :

"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."

Learned counsel for the revisionists laid much emphasis in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, wherein it has been held by the Hon'ble Apex Court that, "Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the I.O. during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. revisionists) complicity has come on record".

I have perused the order impugned and I am of the considered opinion that the same is dehors of the law laid down by Hon'ble the Apex Court in the aforesaid judgment. Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above), therefore, impugned order dated 04.12.2021 passed by learned Additional District & Sessions Judge, F.T.C., Meerut is hereby set aside and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of eight weeks positively from the production of certified copy of this order.

With the aforesaid observations, the present revision stands disposed off.

Order Date :- 27.4.2022

Abhishek Sri.