Allahabad High Court
Bhoola @ Dharmendra And Another vs State Of U.P. And Another on 1 April, 2022
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- CRIMINAL REVISION No. - 1042 of 2022
Revisionist :- Bhoola @ Dharmendra And Another
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Mithilesh Kumar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Mithilesh Kumar Shukla, learned counsel for the revisionists and learned Additional Government Advocate representing the State and perused the materials available on record.
This criminal revision has been filed by the revisionists, Bhoola @ Dharmendra and Laloo assailing the legality and validity of the order dated 7.1.2022 passed by Additional Sessions Judge, court No. 9, Firozabad, whereby the learned Judge in exercise of power under Section 319 Cr.P.C. has summoned the non-accused Bhoola @ Dharmendra and Laloo to face the prosecution under Sections 307, 452 and 504 IPC fixing 7.2.2022 as the next date in the matter.
The contention raised by the counsel is that the F.I.R. was lodged for the incident of 26.10.2016, which was registered on 31.10.2016 by one Rameshchandra against Deepu S/o Bade Pappu, Laloo S/o Bade Pappu, Dharmendra @ Bhola S/o Tarbabu Chootey Pappu and Toni S/o unknown with the allegation that all the four persons barged into the house of the informant and started hurling filthy abuses and assaulted the son of the informant, namely, Sugreev and Kaushalendra by kicks and fists, and thereafter, dragged him out and accused Tony with an intention to kill has fired upon Kaushalendra, which hit on his right leg, and at the same time, another accused persons have looted Rs. 10,000 and essential documents from Sugreev. After registration of the F.I.R., the law set into motion and the Investigation Officer of the case has recorded the statements of all the concerned and eventually submitted a charge sheet on 3.6.2017 and the Chief Judicial Magistrate,concerned has taken cognizance of the offence on 30.4.2018. It is clear from the charge sheet that the revisionists namely Bhoola @ Dharmendra S/o Tarbabu Chootey Pappu and Laloo S/o Bade Pappu were dropped. After committal of the case, statements of PW-1, PW-2 and PW-3 were recorded and a casual allegation has been levelled against these revisionist and the learned trial court was impressed by the submissions advanced on behalf of the prosecution has summoned the revisionist by passing the impugned order.
Learned counsel for the revisionist 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.The relevant paragraphs of the said judgment reads as under;-
"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."
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 relevant part of the said judment is reproduced hereinbelow"-
"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".
I have carefully gone through the impugned order and submissions advanced by Shri Mithilesh Kumar Shukla and learned Additional Government Advocate. I have no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above).
Accordingly, the order dated 7.1.2022 passed by Additional Sessions Judge, court No. 9, Firozabad in the aforesaid case is hereby quashed 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 from the date of production of certified copy of this order.
With the aforesaid observations, this criminal revision stands disposed of.
Order Date :- 1.4.2022
Sumaira
