Shah Mohammad vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 20034 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- APPLICATION U/S 482 No. - 9062 of 2022
 

 
Applicant :- Shah Mohammad
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
 
Counsel for Applicant :- Durgesh Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Sri Durgesh Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State as well as perused the record.

The instant application under Section 482 Cr.P.C. has been filed by the applicant, namely, Shah Mohammad with a prayer to set aside the impugned order dated 15.10.2022 passed by learned Sessions Judge, Sultanpur in S.T. No.173 of 2019 as well as entire criminal proceedings in pursuance thereof.

Learned counsel for the applicant while drawing attention of this Court towards the statements of two witnesses recorded before the trial court submits that there is an inherent contradiction in the testimonies of these two witnesses and it is admitted to the parties that the instant applicant and the informant were having enmity as for the last many years the applicant was living abroad and on 05.10.2016 when his daughter was molested by the complainant and his one associate, the wife of the applicant, namely, Safiya Bano had lodged a first information report at Police Station Kamrauli, District Amethi on 05.10.2016, under Sections 354B, 323, 506 I.P.C. against the informant of this case Mohd. Sohib and his associates and it is only on account of this enmity, the name of the applicant has been implicated in the instant case.

It is further submitted that after thorough investigation, the Investigating Officer did not find any complicity of the applicant in the crime and the charge sheet was file only against the accused persons Kaleem and Mois and applicant (Shah Mohammad) was exonerated.

It is also submitted that name of the applicant has been purposely included in the charge sheet as well as in the statements of prosecution witnesses so that he cannot go out of the country in order to earn bread and butter for his family and also that that material before the trial court was not sufficient enough to exercise power under Section 319 Cr.P.C. Thus, patent illegality has been committed by the trial court in summoning the accused-applicant for trial alongwith the other co-accused persons.

It is vehemently submitted that the important and significant powers as contained under Section 319 Cr.P.C. has been so casually exercised by the trial court that even when the request of the prosecution for summoning the applicant was accepted, it is no where written in the impugned order as to for what offence the applicant is being summoned to face trial by the trial court while the duty of the trial court was to mention specific offence for which the applicant / accused is being summoned for the purpose of facing trial.

Learned A.G.A. on the other hand submits that the case of the prosecution right from the lodging of the first information report is pertaining to the fact that there is enmity between the parties and on the relevant date and time the accused Mois and Kaleem riding on a separate motor cycle and the instant applicant who was riding on another motor cycle had gone to the place and on an exhortation given by the accused Mois and the applicant, Kalim had fired on the injured P.W.-Mohd. Jamal and this story has also been corroborated by the P.W.-1, Mohd. Sohib and P.W.-2, Mohd. Jamal (injured) and there is no dispute with regard to the fact that two fire arms injuries have been sustained by the injured P.W.-2 (Mohd. Jamal). Thus, there is no illegality in the impugned order passed by the trial court.

Keeping in view the facts and circumstances of the case and also keeping in view the order intended to be passed, issuance of notice upon opposite party no.2 is hereby dispensed with.

Having heard learned counsel for the parties and having perused the record, there cannot be any doubt that the powers given by virtue of Section 319 Cr.P.C. are enabling powers and has been given with a purpose that the real perpetrator(s) of the crime should not go scot-free and, therefore, it is not only the right but the duty of the trial court to exercise this power in a case where complicity of any other person other than those who are facing trial appears to be explicit or evident. The law with regard to the fact as to how these powers are to be exercised is now no more res-integra. In the Constitutional Bench Judgment of Hardeep Singh Vs. State of Punjab; (2014) 3 SCC 92, the Hon'ble Supreme Court in respect of the duty of the court while exercising power under Section 319 Cr.P.C. opined as under:-

"98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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.

99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."

The above case law is sufficient to demonstrate that the power under Section 319 Cr.P.C. must be exercised with care and caution in an appropriate case and it cannot be used as a matter of routine. In the Constitutional Bench Judgment of Hardeep Singh Vs. State of Punjab (Supra), the Hon'ble Supreme Court has opined that the case of the prosecution at the stage of summoning with the aid of Section 319 Cr.P.C. should be a little more than prima facie, in other words, it should be stronger than required at the stage of framing of charge.

In nutshell, the above case law is sufficient to project that the power under Section 319 Cr.P.C. must be exercised with a great amount of care and caution. Perusal of the impugned judgment dated 15.10.2022 would reveal that while the trial court has found substance in the application moved by the prosecution under Section 319 Cr.P.C. but it has no where written in the order as to for which offence, the applicant is being summoned, therefore, the order of the trial court prima facie appears to be ambiguous and in the considered opinion of this Court when it is not clear as to for what offence the applicant is being summoned, it would be a futile exercise to discuss the factual matrix of this case as it would be in the interest of justice that the trial court be again requested to pass appropriate orders after providing an opportunity of being heard to the parties keeping in view the law laid down by Hon'ble the Supreme Court in the above mentioned case.

Thus, for the reasons mentioned herein above, the impugned order may not stand test of law. Thus, keeping in view the facts and circumstances of the case and in view of the aforesaid reasons, the instant application moved under Section 482 Cr.P.C. is finally disposed of as under:-

I) The impugned order dated 15.10.2022 is hereby set aside.

II) The trial court is directed to decide / dispose of the application 60-Kha moved by the prosecution under Section 319 Cr.P.C. afresh after providing an opportunity of being heard to those parties alone, which were present before the trial court at the time of passing of impugned order dated 15.10.2022.

With the aforesaid directions, the instant application under Section 482 Cr.P.C. is finally disposed of.

Order Date :- 6.12.2022

Saurabh