Allahabad High Court
Shama And Ors. vs State Of U.P. And Another on 20 April, 2023
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 13
Case :- CRIMINAL REVISION No. - 526 of 2017
Revisionist :- Shama And Ors.
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Rajesh Chandra Mishra
Counsel for Opposite Party :- Govt. Advocate,Anurag Tyagi,Vaani Srivastava
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the revisionists, learned AGA for the State as well as learned counsel for the opposite party no.2 and perused the record.
This revision has been filed with the prayer to set aside the impugned judgement and order dated 18.2.2017 passed by the Additional Sessions Judge, Fast Track Court, Hardoi in Sessions Trial No. 629 of 2013, whereby the trial court summoned the revisionists to face trial on the application moved by the prosecutrix under Section 319 Cr.P.C.
Learned counsel for the revisionists submitted that although the revisionists are named in the FIR, but the investigating officer after collecting the evidence arrived at the conclusion that the offence is made out against the chargesheeted accused persons namely, Irfan, Rahisa and Karim Bux, who are the husband, mother in law and father in law of the victim, respectively. It is further submitted that the chargesheet was filed against the above-mentioned accused persons U/s 498-A,323,506,315,316 IPC and 3/4 of the Dowry Prohibition Act. After filing of chargesheet, charges were framed against the revisionists. During course of trial PW-1, the father of the victim did not support the version of the prosecution and was declared hostile. However, PW-2 Mehnaz Bano stated that on account of dowry, the chargesheeted accused as well as the revisionists continuously harassed and inflicted injury to her and her statement is also corroborated with the statement of PW-3 mother of the victim.
Learned counsel for the revisionists has further submitted that no specific allegation is alleged against the revisionists. Only general role regarding harassment on account of demand of dowry was assigned against the revisionists. It is admitted case that the revisionist no.1 Shama is the sister in law (Nand) of the victim and presently her marriage has been solemnized and she is living separately. The revisionist nos. 2 and 3 namely, Imran and Iqrar are the brothers in law of Mehnaz bano (prosecutrix). Thus, question of demand of dowry does not arise in any manner on behalf of the revisionists. He further submitted that for exercising the power under Section 319 Cr.P.C., it has been held by the Hon'ble Supreme Court that for summoning the accused under Section 319 Cr.P.C. it is inevitable that more than prima facie evidence should be available against the revisionist. Therefore, summoning of the revisionist under Section 319 Cr.P.C. is liable to be quashed and the revision may be allowed.
Learned A.G.A. opposed the submissions raised by the learned counsel for the revisionists.
I have heard learned counsel for the parties. However, they could not dispute the fact that the satisfaction as required in the Constitution Bench judgement of Hardeep Singh vs. State of Punjab (2014) 3 SCC 92 has not been recorded by the trial court while passing the impugned order. The relevant paragraph nos. 105 and 106 of Hardeep Singh's case (supra) are extracted below:
"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.
106. 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."
I have perused the impugned order and also considered the argument advanced by the parties as well as perusal of the judgment of the Apex Court in the case of Hardeep Singh (supra), it is evident that it mandates that the trial court should record a satisfaction relying on much stronger evidence than mere probability of the complicity of the accused and the test that has to be applied, there should be more than a prima facie case available against the accused as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if un-rebutted, would lead to conviction. Therefore in absence of such satisfaction, the impugned order could not be sustained and nowhere in the order such satisfaction as required in the case of Hardeep Singh (supra) has been recorded and hence, I am of the opinion that the impugned order dated 18.2.2017 deserves to be set aside and is accordingly set aside. The matter is remanded to learned trial court to consider the matter afresh in the light of the law laid down by the Supreme Court in the case of Hardeep Singh (supra).
The revision is, accordingly, allowed.
Order Date :- 20.4.2023
Shravan
