Chandar Shekhar Jaysawal @ Sonu ... vs State Of U.P. And Another
2023 Latest Caselaw 11706 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 27.03.2023 
 
Judgment delivered on 19.04.2023 
 

 
Court No. - 90
 

 
Case :- CRIMINAL REVISION No. - 877 of 2023
 

 
Revisionist :- Chandar Shekhar Jaysawal @ Sonu Jaysawal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Pawan Kumar Rao
 
Counsel for Opposite Party :- G.A.,Yadvendra Rai Pandey
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Counter affidavits filed by learned A.G.A. and learned counsel for the first informant, are taken on record.

Heard learned counsel for the revisionist, learned counsel for the O.P. No. 2 as well as learned A.G.A. for the State.

This criminal revision has been filed against the order dated 21.12.2019 passed by Additional Sessions Judge, Court No. 3, Kushi Nagar at Padrauna in S.T. No. 290 of 2016 (State Vs. Pintu Sarkar) Crime No. 1187 of 2015, under section 305 IPC, P.S. Pataherawa, District Kushi Nagar. By the impugned order learned trial court on application of prosecution under section 319 Cr.P.C. has summoned the revisionist Chandar Shekhar Jaysawal @ Sonu Jaysawal and other accused Ragini to face trial for offence under section 305 IPC.

The O.P. No. 2 Sudama Gupta (complainant) lodged an FIR on 28.12.2015 alleging therein that her daughter has committed suicide on 25.12.2015 regarding which he has given a written information at that time. After creamation of his daughter it has come to his notice that Pintu Sarkar and his wife has abeted his daughter for committing suicide resulting in death of his daughter. FIR was registered against Pintu Sarkar and Ragini under section 306 IPC. The name of revisionist also came into light during investigation but after investigation charge-sheet was submitted only against Pintu Sarkar. During trial statements of Sudama as P.W. 1 and Sampatti Devi as P.W. 2 was recorded. Thereafter, prosecution moved an application under section 319 Cr.P.C. to summon Ragini the named accused of the FIR and Chandar Shekhar Jaysawal @ Sonu Jaysawal for trial on the ground that Pintu Sarkar and Ragini were named in the FIR for abetment of suicide of the daughter of the complainant but even then police has not submitted charge-sheet against Ragini. The complainant and his wife Sampatti Devi in their statements under section 161 Cr.P.C. have again stated that Pintu Sarkar and his wife Ragini abeted the suicide of their daughter. Before the court complainant has been examined as P.W. 1 and he has stated about the abetment of suicide by Ragini and other accused. The obscene audio-clip has been recorded by Ragini. Sampatti Devi P.W. 2 has also assigned the role of abetment of suicide to Ragini. Apart from Ragini and Pintu Sarkar Sonu Jaysawal son of Muneeb Jaysawal is also named in the second suicide note and audio clip available as evidence. The Investigating Officer in collusion with Pintu Sarkar and Sonu Jaysawal has not taken the suicide note and audio clip from the complainant under the influence of the accused. The complainant has made a complaint of this fact to the Superintendent of Police, Kushi Nagar and other authorities. On the aforesaid ground the prayer has been made to summon Sonu Jaysawal and Ragini. Learned trial court by the impugned order has allowed the application.

Learned counsel for the revisionist submitted that during trial after about two years of the alleged incident the first informant moved an application under section 319 Cr.P.C. in which it has been mentioned that on the basis of second suicide note and audio clip the sufficient evidence is available to make Sonu Jaysawal accused but nowhere stated the aforesaid evidence in which manner has been recovered. In fact no second suicide note and audio clip was available before the trial court at the time of filing application under section 319 Cr.P.C. After filing application under section 319 Cr.P.C. the wife of the first informant moved an application dated 5.1.2018 for filling the lacuna and stating therein that she wants to submit some documentary evidence i.e. suicide note, mobile chip etc. The learned trial court without verifying that from which source the alleged evidence has been recovered and also without considering the fact that during investigation the investigating officer has recovered the suicide note and mobile of the deceased in which nothing was recovered as alleged, allowed the application vide order dated 20.1.2018. In pursuance of this order P.W. 2 has filed recording of script of alleged audio on 6.12.2019 in which conversation between Pintu Sarkar and deceased dated 24.12.2015 and 25.12.2015 are mentioned in which it is shown that Pintu Sarkar has used abusive language with deceased and also taken name of Sonu Jaysawal. Neither Pintu Sarkar nor deceased have disclosed about the details or identification of Sonu. In application U/s 319 Cr.P.C. the correct name and address of the revisionist has not been mentioned. No sufficient evidence against the revisionist has been produced. Without considering the evidence available on record the learned trial court has summoned Ragini and Sonu Jaysawal. It is also clear that evidence produced by the wife of the first informant has not been proved before the trial court and without examining the evidence the trial court has passed this summoning order which is illegal and without application of judicial mind. It is also contended that it is settled law that before exercising its discretionary jurisdiction in terms of section 319 Cr.P.C. the court must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. The court is required to apply stringent test whether evidence on record is such which would reasonably led to conviction of the person sought to be summoned. There is no strong evidence against the revisionist and no one has taken the name of the revisionist at any place. It is further contended that the name of revisionist is Chandar Shekhar Jaysawal son of late Muneeb and revisionist has no nick name of Sonu but due to mentioning the name of alleged accused as Sonu son of late Muneeb the police is adamant to arrest the revisionist. In fact the revisionist has no concern with the alleged incident. Lastly it is contended that the impugned order suffers from infirmity and illegality as such it is not sustainable in the eye of law.

Learned A.G.A. and learned counsel for the O.P. No. 2 contended that the Investigating Officer has not conducted investigation in fair and impartial manner. He has not collected the relevant evidence just to help the accused. Even he has exonerated Ragini the named accused of the FIR while there were specific allegations against her and the witnesses in their statements have also implicated her. The Investigating Officer has not collected the mobile call details, whatsapp chats and other electronic evidence which was very relevant and which clearly implicates the revisionist-accused and co-accused Ragini. The complainant has also moved an application to the higher authorities but no action was taken. During trial this evidence has been produced before the trial court which clearly implicates the revisionist as well as co-accused Ragini. The context of whatsApp clearly establishes that the deceased was pushed under mental pressure and due to this she committed suicide. She was ill treated, abused and blackmailed by the accused persons. The suicide note also implicates the revisionist and co-accused Ragini. The learned trial court after considering the evidence on record has found that there is sufficient evidence and has allowed the application under section 319 Cr.P.C. So there is no illegality in the impugned summoning order.

The incident is of 25.12.2015. The FIR has been lodged by the father of the deceased on 28.12.2015. In the first information report Pintu Sarkar and his wife Ragini are named. During investigation the name of revisionist-accused also came into light. After investigation charge-sheet has been submitted only against Pintu Sarkar. The investigating officer has exonerated Ragini and the revisionist-accused on the basis that from the CDR it is not established that they have contacted the deceased on mobile. During the trial complainant, Sudama Gupta PW-1 and his wife Sampatti Devi PW-2 have been examined. They are the parents of the deceased. Both these prosecution witnesses have implicated the revisionist and Ragini. They have specified the role of these accused. Ragini is the wife of the main accused Pintu Sarkar. During investigation it stand confirmed that Pintu Sarkar has made several call on the mobile phone of the deceased on the date of the incident as well as on earlier dates i.e. since 20.12.2015. SMS has also been sent. But in the case diary details of SMS are not mentioned. During investigation, one suicide note has also been recovered by the investigating officer which clearly implicates the main accused Pintu Sarkar. The prosecution case is also that the deceased was living in rented accommodation for education purpose and the incident occurred there. An application was moved before the trial court by the prosecution that when the belongings of the deceased were brought to the house one purse of the deceased was also in it. One torn memory card, one suicide note, one photograph of the suicide note taken from a mobile, one photograph of the deceased in the chip, a family photo and 15 audio clips were found in it. The complainant gave it to the investigating officer who refused to take it and told the complainant to produce it before the court. The complainant has also informed in this respect to police authorities and others. A prayer was made to take these items on the record. This application was allowed by the trial court vide order dated 20.1.2018. The script of the recording of audio clip dated 24.12.2015 and 25.12.2015 is part of the record. The text of the clip clearly implicates the revisionist as well as the other co-accused Ragini. The text is very vulgar, abusive and horrifying. It categorically shows the involvement of the revisionist as well as co-accused Ragini in the offence.

It also appears that investigating officer of this case has not acted in a fair and impartial manner. He has not made part of the case diary the text of SMS. He just exonerated the other named accused Ragini and Sonu Jayaswal whose names have come to the light during the course of the investigation simply on the ground that no conversation was found to have been made from their mobiles with the deceased. The investigating officer has also not made any search of the belongings of the deceased. He has also not made any memo of articles found in the room where the deceased was living and has committed suicide. It also appears that the investigating officer was not interested in collecting possible evidence in the form of electronic evidence. He just concluded the investigation by recording the statements of the complainant and some other witnesses and collecting CDR of the mobiles of the deceased and Pintu Sarkar co-accused. The electronic evidence produced by the complainant during the trial is a very important and relevant piece of evidence but unfortunately the investigating officer did not make any effort to collect it and made it part of the record. The genuineness, veracity and the evidentiary value of this evidence is a matter of trial. It will not be proper to make any comment on it at this stage but it is an important piece of evidence that cannot be ignored at this stage. So there is sufficient evidence against the revisionist.

In order to exercise the powers under section 319 Cr.P.C. the court will have to objectively satisfy itself that the evidence warrant that a person not brought up for trial should be required to face the trial. In the case of Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC page 706 the Apex Court has made the following observations:

"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ''evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The ''evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration."

So applying the test laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence than mere probability of the complicity of the accused. There is sufficient evidence on record 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 un-rebutted would led to conviction and it pass the test as laid down by the Apex Court.

The learned trial court with a detailed and reasoned order has allowed the application. The learned trial court has narrated the entire facts, evidence and other material available on record and the proposition of law on the point and thereafter has given the finding that there is sufficient ground to exercise the powers U/s 319 Cr.P.C. and has passed the impugned summoning order. There is no illegality or infirmity in the impugned summoning order. It is just and proper.

Accordingly, the revision is devoid of merits and is hereby dismissed.

Order Date:- 19.04.2023

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