Smt Anita vs State Of U.P. And Another
2022 Latest Caselaw 1694 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- CRIMINAL REVISION No. - 3588 of 2021
 

 
Revisionist :- Smt Anita
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Mewa Lal Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

Heard learned counsel for the revisionist as well as learned A.G.A.

By means of the instant revision, the revisionist is assailing the order dated 30.11.2021 passed by learned Additional Sessions Judge, Court No.22, Allahabad in Sessions Trial no.181 of 2018 under sections 306/302 IPC arising out of case crime no.1 of 2018, Police Station-Karchana, District-Prayagraj whereby the application no.11-Kha and 13-Kha under section 319 Cr.P.C. was allowed summoning Anita Devi to face the trial.

Contention raised by learned counsel for the revisionist is that the prosecution has been initiated by one Jeet Lal Yadav who has lodged the FIR on 31.12.2017 for the incident said to have taken place on the same day under section 302 IPC, Police Station-Karchana, District-Allahabad against Vijay Shankar Yadav(husband), Anita Devi(revisionist) and Ravi Shankar(dewar) with the allegation that about seven years back, the informant got her daughter married with one Vijay Shankar Yadav from whom she has delivered two baby girls. On this account, she was subject matter of constant goading and tangent remarks by the family members and they became physical sometime with the deceased. It is further submitted that it is alleged in the FIR that all the three named accused persons have jointly burnt the lady along with her two daughters. The post mortem report reveals that all the three persons died on account of burn injuries. However, after holding in-depth probe, police has submitted the charge sheet against Vijay Shankar Yadav and Ravi Shankar dropping the name of the revisionist from the array of charge sheet. Since, the case was non-bailable, the case was committed to the court of sessions, whereby after recording the statement of PW-1, Jeetlal Yadav and PW-2, Nankau Yadav, the application under section 319 Cr.P.C. was moved on 23.11.2021 with the prayer from the Court that the revisionist-Anita(Jethani) be also summoned to face the prosecution. After hearing counsel for the rival parties, learned trial Judge vide order dated 30.11.2021 allowed the same summoning Anita Devi to face the trial. Learned counsel for the revisionist submits that omnibus and general role has been attributed in the FIR for alleged act of torture and tangent remarks and all of sudden, she has taken the extreme step by committing suicide after burning herself along with her two daughters.

I have keenly perused the testimonies of PW-1, Jeetlal Yadav and Nankau Yadav that on account of giving birth to two baby girls, her husband Vijay Shankar Yadav and Anita Devi used to make tangent remarks and sometime marpeet was done. PW-1 Jeetlal Yadav in examination-in-chief has submitted that he has talked with her deceased's daughter about 10-12 days prior to the incident in which she has disclosed about the maltreatment committed by all the family members. It is next contended that revisionist has got no reason or occasion for committing any marpeet or extend maltreatment to her. The revisionist is the lady of 45 years and mother of her own children. The evidence indicates that at the time of occurrence, she was not present over the site and that is the reason that the police has dropped the name of the revisionist from the charge sheet.

Learned counsel for the revisionist has relied upon the 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 revisionist 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.

On this parameter, the name of the revisionist has been taken without attributing any role in the commission of the alleged offence. The police has dropped the name of the revisionist from the chargesheet. Learned counsel for the revisionist 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.

"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."

Moreover, in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017 has stated 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 IO 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. appellants) complicity has come on record".

After perusal of the statement and the material collected and in the light of the judgments of Hon'ble the Apex Court in the case of (i) Hardeep Singh Vs. State of Punjab and another (2014) 3 SCC Page-92 ; (ii) Brijendra Singh and others Vs. State of Rajasthan 2017(100) ACC 601 (SC); (iii) Labhuji Amratji Thakor and other Vs. State of Gujrat and another 2018(15) SCAL 639; (iv) Sugreev Kumar Vs. State of Punjab and others in Criminal Appeal No.509 of 2019 arising out of SLP(Crl.) No.9687 of 2018; (v) Periyasami and others Vs. S. Nallasamy in Criminal Appeal No.456 of 2019 arising out of SLP(Crl.) No.208 of 2019, I have got no hesitation to quash the order dated 30.11.2021 passed by learned Additional Sessions Judge, Court No.22, Allahabad in Sessions Trial no.181 of 2018.

The present criminal revision is hereby allowed. The matter is remanded back for fresh consideration and the learned trial Court is directed to re-visit and re-decide the matter in the light of the ratio laid down by Hon'ble the Apex Court in the aforesaid judgmentsand conclude the same within a period of eight weeks from the date of production of certified copy of this order by passing a well reasoned and speaking order.

Order Date :- 28.4.2022

Sumit S