Vishwapal Singh And 2 Ors. vs State Of U.P. And Anr.
2023 Latest Caselaw 23749 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 
Reserved on 01.08.2023
 
Delivered on29.08.2023
 

 
Neutral Citation No. - 2023:AHC-LKO:57560
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 657 of 2021
 
Appellant :- Vishwapal Singh And 2 Ors.
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Pradeep Kumar Singh,Sushil Kumar Singh
 
Counsel for Respondent :- G.A.,Anil Kumar Shukla
 

 
Hon'ble Shamim Ahmed,J. 

1. Heard Sri Sushil Kumar Singh, learned counsel for the appellants, Sri Anil Kumar Shukla, learned counsel for the opposite party no.2 and Sri Bhasker Mal, learned A.G.A. for the State.

2. The instant appeal has been moved by the appellants, namely, Vishwapal Singh, Adarsh Singh and Vipin Singh with a prayer to quash the impugned summoning order dated 04.03.2020 passed by the Additional Sessions Judge, Court No.3, Sitapur, whereby the appellants have been summoned under Section 319 Cr.P.C. in Special Trial No.181/2017 (State Vs. Shivpal Singh & Others), under Sections 452, 323, 427, 504, 506 I.P.C. and Section 3(1)(Gha) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kotwali, District Sitapur.

3. Before opening the arguments, learned counsel for the appellants informed that appellant no.1, Vishwapal Singh died, as such, the appeal in respect of appellant no.1 Vishwapal Singh stands abated. This Court is proceeding in respect of appellant no.2, Adarsh Singh and appellant no.3, Vipin Singh.

4. Learned counsel for the appellants submitted that initially an impugned F.I.R. was lodged by the opposite party no.2, complainant on 29.02.2016 at Case Crime No.0143 of 2016, under Sections 323, 147, 452, 504, 506, 427 I.P.C. and Section 3(1)(xi) of S.C./S.T. Act against the five persons including the present appellants. Thereafter, the matter was thoroughly investigated and nothing was found against the present appellants and they were expunged by the Investigating Officer.

5. Learned counsel for the appellants further submitted that opposite party no.2 moved an application dated 16.09.2019 under Section 319 Cr.P.C. before the court below for summoning the appellants to face trial. He further submitted that against the application under Section 319 Cr.P.C., objection was filed by the appellants on 04.10.2019.

6. Learned counsel for the appellants further submitted that there is a civil dispute pending between the parties before the Civil Judge (Senior Division), Sitapur bearing O.A. No.602/2015 (Shivpal Singh & Others Vs. Ram Swaroop & Others), as such, the prosecution has tried to give colour of criminal nature to a civil dispute.

7. Learned counsel for the appellants further submitted that the appellants have not committed any offence as alleged by the complainant and from a bare perusal of the evidence collected by the Investigating Officer, it is crystal clear that the appellants have not participated in the alleged offence.

8. Learned counsel for the appellants further submitted that the application dated 16.09.2019 moved by the opposite party no.2, complainant under Section 319 Cr.P.C. is not supported with any affidavit nor any cogent reason has been given as to why the appellants be summoned after a long time of lodging of the first information report, as such, it shows the malafide arbitrary intention of the complainant just to harass the appellants.

9. Learned counsel for the appellants further submitted that the impugned order dated 04.03.2020 passed by the learned Additional Sessions Judge, Court No.3, Sitapur, by which the appellants were summoned, is also non speaking as the Magistrate has not considered any material available before him while summoning the appellants to face the trial. As such, the impugned order dated 04.03.2020 on the face of record appears to be unjustified and is passed without application of judicial mind, therefore, the same is liable to be set aside by this Court and the present appeal be allowed.

10. Learned A.G.A. for the State as well as learned counsel for the opposite party no.2 have opposed the argument raised by the learned counsel for the appellants and have jointly submitted that the impugned order dated 04.03.2020, summoning the appellants under Section 319 Cr.P.C., was rightly passed, as such, the same is not liable to be quashed and the instant appeal is liable to be rejected.

11. After hearing learned counsel for the parties and perusal of record, it reveals that the charge-sheet has not been filed against the present appellants. The appellants have been summoned merely on the application given by the opposite party no.2, complainant under Section 319 Cr.P.C. It also reveals that a Civil Suit bearing O.A. No.602/2015 (Shivpal Singh & Others Vs. Ram Swaroop & Others) is pending between the parties, as such, the prosecution has tried to give colour of criminal nature to a civil dispute.

12. Further, this Court finds that the application dated 16.09.2019 filed by the opposite party no.2, complainant under Section 319 Cr.P.C. before the learned court below is not supported with any affidavit nor any cogent reason has been given so that the appellants be summoned by the court below. Even though when the names of the appellants were dropped/expunged during the investigation, the opposite party no.2, complainant has not filed any protest petition against the same, however, after a long gap, the application under Section 319 Cr.P.C. was filed that too without assigning any cogent reason.

13. It is further observed by this Court that in application dated 16.09.2019 filed by the opposite party no.2, complainant under Section 319 Cr.P.C., the same allegation has been leveled which was leveled in the first information report and further that the learned trial court, while passing the impugned order dated 04.03.2020 did not consider this aspect that the power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be sparingly used and only in those cases where the circumstances of the case so warrant, has passed the order in cursory manner and without application of judicial mind.

14. The Constitution Bench judgment of the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab & others, (2014) 3 SCC 92 was pleased to observe in paragraph 105 and 106 of the aforesaid judgment as under :-

"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."

15. Further, the Constitution Bench judgment was duly considered by the Hon'ble Apex Court in the case of Labhuji Amratji Thakor & others Vs. The State of Gujarat and another, 2018 (0) Supreme (SC) 1147 and the Hon'ble Supreme Court in paragraph 9 of the aforesaid judgment was pleased to observe as under :-

"9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is "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." The present is a case, where the trial court had rejected the application filed by the prosecution under Section 319 Cr.P.C. Further, in the present case, the complainant in the F.I.R. has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure. After carrying investigation, the Charge Sheet was submitted in which the appellants names were also not mentioned as accused. In the statement recorded before the Police, the victim has named only Natuji with whom she admitted having physical relations and who took her and with whom she went out of the house in the night and lived with him on several places. The mother of victim in her statement before the Court herself has stated that victim girl returned to the house after one and a half months. In the statement, before the Court, victim has narrated the entire sequence of events. She has stated in her statement that accused Natuji used to visit her Uncle's house Vishnuji, where she met Natuji. She, however, stated that it was Natuji, who had given her mobile phone. Her parents came to know about she having been given mobile phone by Natuji, then they went to the house of Natuji and threatened Natuji."

16. Further, the Hon'ble Apex Court in the case of Brijendra Singh and others vs. State of Rajasthan, (2017) 7 SCC 706 and in para 13 and 15 was pleased to observe as under :-

"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. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.

xx xx xx

15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. 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 IO 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. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."

17. Further, the Hon'ble Apex Court in the case of Periyasami and others vs. S. Nallasamy, (2019) 4 SCC 342 and in paragraph 14 and 15 of the aforesaid judgment was pleased to observe as under:-

"14. In the First Information Report or in the statements recorded under Section 161 of the Code, the names of the appellants or any other description have not been given so as to identify them. The allegations in the FIR are vague and can be used any time to include any person in the absence of description in the First Information Report to identify such person. There is no assertion in respect of the villages to which the additional accused belong. Therefore, there is no strong or cogent evidence to make the appellants stand the trial for the offences under Sections 147, 448, 294(b) and 506 of IPC in view of the judgment in Hardeep Singh case (supra). 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.

15. The High Court has set aside the order passed by the learned Magistrate only on the basis of the statements of some of the witnesses examined by the Complainant. Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the Complainant is a husband and has initiated criminal proceedings against family of his in-laws and when their names or other identity were not disclosed at the first opportunity."

18. In the present case, it is apparent that the order under Section 319 Cr.PC. is based on the statement of P.W.1 without considering the relevant facts and without recording any satisfaction that there is some cogent evidence which may lead to their conviction even otherwise the appellants were already expunged by the Investigating Officer and final report was submitted agaisnt them. In the matter of Hardeep Singh & Bijendra Singh (supra) and other judgments, the Apex Court is clearly of the view that evidence should be more prima facie, if unrebutted, would lead to conviction, here no such satisfaction has been recorded by the Additional Sessions Judge, Court No.3, Sitapur while passing the summoning order dated 04.03.2020.

19. Hon'ble Apex Court in the case of Brindaban Das and others vs. State of West Bengal, 2009 (66) ACC 273, held that in matters relating to invocation of powers under section 319 Cr.P.C., the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. The Apex Court further observed that the fulcrum on which the invocation of section 319 Cr.P.C. rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned.

20. Thus, in view of the law laid down by the Hon'ble Apex Court and the facts and circumstances, as narrated above and from the perusal of the record, the impugned summoning order dated 04.03.2020 passed by the learned Additional Sessions Judge, Court No.3, Sitapur, summoning the appellants under Section 319 Cr.P.C., is against the spirit and directions issued by the Hon'ble Apex Court and is liable to be set aside.

21. Accordingly, the order dated 04.03.2020 passed by the learned Additional Sessions Judge, Court No.3, Sitapur, whereby the appellants have been summoned under Section 319 Cr.P.C. in Special Trial No.181/2017 (State Vs. Shivpal Singh & Others), under Sections 452, 323, 427, 504, 506 I.P.C. and Section 3(1)(Gha) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kotwali, District Sitapur is hereby set aside and reversed.

22. For the reasons discussed above, the appeal is allowed in respect of appellant no.2, Adarsh Singh and appellant no.3, Vipin Singh.

23. No order as to the costs.

Order Date :- 29.08.2023

Saurabh

(Shamim Ahmed, J.)