Harsh vs State Of U.P. And Another
2022 Latest Caselaw 10922 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- CRIMINAL REVISION No. - 3278 of 2022
 

 
Revisionist :- Harsh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Shailendra Pratap Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Sri Shailendra Pratap Singh, learned counsel for the revisionist and learned AGA for the State.

This criminal is being preferred assailing the legality and validity of the order dated 18.07.2022 whereby the application of the prosecution 26 Kha under Section 319 Cr.P.C. was partly allowed summoning the revisionist-Harsh, (Dewar), non accused to appear and faced the prosecution having S.T. No. 95 of 2021, under Section 354ka and 354kha IPC.

Submission made by the counsel that way back on 28.11.2018, the wife Shivani Sharma has lodged the present FIR at Police Station Transport Nagar, Meerut as case crime no. 803 of 2018, under Sections 498A, 323, 504, 506, 315, 307, 376, 511 IPC and Section 3/4 D.P.Act roping in entire family of husband Kartik in this mishap. At this juncture, learned counsel for the appellant has drawn the attention of the Court of the judgement of Hon'ble Apex Court in the case of Kehkashan [email protected] Sonam and others Vs. State of Bihar and others, relevant extract is quoted herein below:-

"18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."

This is ill practice prevailing now a days that the entire family has been roped in levelling omnibus and general allegation of all sorts of atrocities upon the girl.

In the text of the FIR ever abhorring and distasteful allegation were fasten against all the family members including Dewar Harsh (non-accused person) for allegedly committing attempt of rape upon her own Bhabhi (informant). After holding indepth probe into the matter, the police after recording the statement under Section 161 and 164 Cr.P.C. statement, it is annexed as Annexure-4 to the revision. It is evidently clear that on the date and time of the incident, the informant was residing at her parent place (Maika) during 11.08.2018 to 17.08.2018 near Shivhari Mandir. At this juncture it is contended that the allegation levelled in the FIR is palpably bogus and tailored one. The Investigating Officer of the case have visited at Bhavna Kansal Clinic which is gynecologist attended the informant. In her statement Ms. Bhavna Kansal in no uncertain terms stated that on account of certain gynic complication her pregnancy was pre-aborted to save the life of the lady and there was no external or internal injury was found over her person. The statement of the doctor is also annexed as Annexure-6 to the revision and after thrashing entire matter on record, the Investigating Officer of the case has submitted the report under Section 173(2) Cr.P.C. only against husband Kartik, Anju @ Babli (mother-in-law) and Satish Sharma (father-in-law) under Section 498A, 323, 504, 307 and 506 IPC and Section 3/4 D.P.Act and since the case is cognizable offence and triable by Magistrate, the case was committed to the court of Sessions for trying the accused persons.

The testimony of PW-1 Shivani Sharma was recorded on 18.02.2022 in which she has made a casual and tangent remark against the revisionist Harsh, which reads as under :-

"?????? ??.??.???? ?? ??? ???? ??.?? ??? ?? ???? ???? ??? ???? ??? ??, ?? ?? ???? ???? ???? ???? ?? ???? ???? ??? ??? ??? ?? ???????? ???? ?? ???? ?? ??? ??? ?? ??? ???? ?? ???? ????? ??? ???????? ???? ?? ?????? ???? ??? ???? ??? ????? ?? ???? ?? ?? ????? ?? ??? ?? ???? ?? ???? ???? ??? ???"

Soon after recording of testimonies of two witnesses and application under Section 26kha under Section 319 Cr.P.C. was filed by the prosecution which was partly allowed, summoning the revisionist. On this statement/ testimony of PW-1(informant) alone, an application under Section 319 Cr.P.C. was moved.

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 though 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 judgments. 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 18.07.2022 passed by learned Additional District & Sessions Judge, Court No.12, 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 three months positively from the production of certified copy of this order.

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

Order Date :- 23.8.2022

Abhishek Sri.