Allahabad High Court
Suneel And Another vs State Of U.P.And Another on 6 April, 2022
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- CRIMINAL REVISION No. - 632 of 2022
Revisionist :- Suneel And Another
Opposite Party :- State Of U.P.And Another
Counsel for Revisionist :- Sushil Kumar Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Sushil Kumar Dubey, learned counsel for the revisionists and learned A.G.A. for the State and perused the record.
By means of the present criminal revision revisionists are assailing the legality and validity of the order dated 02.02.2021 passed by the Additional Sessions Judge/F.T.C. Court No. 1, Etawah whereby the revisionists were summoned for trial in Session Trial No. 68 of 2019 (State Vs. Gopal Yadav and Others) arising out of Case Crime No. 04 of 2019, under section 498-A, 304-B IPC and section 3/4 Dowry Prohibition Act, Police Station Bharthana, District Etawah.
Contention raised by the counsel is that F.I.R. was registered one Satyapal Singh on 03.01.2019 under sections 498-A, 304-B IPC and section 3/4 D.P. Act lodging against Gopal Yadav, Suneel and "Suneel ki patni".
As per the F.I.R. the marriage of the Gopal Yadav was solemnized with the deceased on 13.12.2015 and there is alleged demand of Rs. 2,00,000/- by way of additional dowry and on the fateful day on 03.01.2019 she has committed suicide by hanging herself. As per prevailing practice in the society now a days entire family of Gopay Yadav have been roped in present offence. Admittedly Suneel and "Suneel ki patni Babli" are Jeth and Jethani they are both adjusting separate domestic unit against concerned with internal matters of Gopal Yadav son-in-law, a generality imposed levelled against all the family members but fact remains that deceased hanging herself. Even during the police investigation Investigating Officer has dropped the name of the applicant from the charge sheet but the applicants were summoned in exercise of power under section 319 Cr.P.C. hence this revision.
I have perused the order impugned and allegations levelled against the revisionists based on wild suspicion and conjunctures the revisionists resides separately in adjacent domestic unit, moreover learned trial Judge has not even whisper, circumstances the police has finally dropping the name of the applicant from the charge sheet.
Learned counsel for the revisionists 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 after thorough investigation the police has dropped the name of the revisionists from the chargesheet and the learned Magistrate 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."
Moreover, in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, it has been 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 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 order dated 02.02.2021 passed by the Additional Sessions Judge/F.T.C. Court No. 1, Etawah 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 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 8 weeks from today.
With the aforesaid observations, the present revision stands disposed off.
Order Date :- 6.4.2022
Vikram
