Allahabad High Court
Shashi Kumar Yadav @ Raju Yadav vs State Of U.P. And Another on 13 February, 2023
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL REVISION No. - 993 of 2016
Revisionist :- Shashi Kumar Yadav @ Raju Yadav
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Sumit Kumar Srivastava
Counsel for Opposite Party :- Govt. Advocate,Ghanshyam Yadav,Sartaj Ahmad Siddiqui
Hon'ble Mrs. Renu Agarwal,J.
Heard learned counsel for the revisionist and learned A.G.A. for the State.
The present application is filed under Section 357 & 480 Cr.P.C. against the impugned order dated 01.06.2016 passed by Additional Sessions Judge, F.T.C.-I, Pratapgarh, in S.T. No.847 of 2011(State Vs. Ramanand Yadav and others) arising out of Case Crime No.261 A of 2011, under sections-147, 323, 504, 506, 308, 307 and 325 I.P.C., P.S. Lalganj, District- Praapgarh, whereby allowed the application under section 319 Cr.P.C. moved by the prosecution for sommoning the revesioninst for facing the trial as well as impugned bailable warrant dated 28.09.2016 issued by the Court. In short, the brief facts of the F.I.R. are that on 16.06.2011 at about 6:30 p.m., a dispute arose between the complainant and accused regarding ghosts and evil spirits. Ramanand, Krishnkant, Ashish, Arjun, Vijay and Shankarlal tried to intervene between the parties. Then, Prithviraj, Shrikant, Balkrishna, Brijesh, Lavkesh and Lakshmikant and the wife of prithviraj and Lakshmikant and Harikant started beating the complainant side and prithviraj shot fire at Ashish and the fire hit at the chest of Ashish. Then, the accused took to their heels challenging the injured.
After the investigation, charge sheet was filed against Prithviraj Yadav, Shri Krishna, Balkrishna, Brijesh Yadav, Lakshmikant Yadav, Lavkesh Yadav, Sunita Devi, Rajkumari Yadav, Rampati Yadav and Premchandra Yadav.
Application under section 319 Cr.P.C. was moved to summon the present revisioninst and the Court vide its order dated 01.06.2016 summoned accused Raju s/o Munnu also under section 147, 323, 504, 506, 307, 308, 325 to face the trial.
Learned counsel submitted that during investigation, no case was found against him and he was summoned on the basis of the statement of the co-accused in the case. It is also submitted that during the course of trial, the statement of P.W.1 Prem Chand Yadav and P.W.2 injured Balkrishna were recorded. Injured Balkrishna assigned the general role of the assault by lathi and danda against the revisionist. Learned Trial Court did not give any specific finding to summon the revisionist to face the trial and passed the impugned order in routine manner, therefore, the entire proceeding initiated against the revisionist on the basis of the application under section 319 Cr.P.C. as well as the impugned bailable warrant issued by Trial Court are liable to the quashed.
Learned A.G.A. opposed the revision and stated that the learned Trial Court summoned the present revisionist in the right perspective and on the basis of evidence on record. Therefore, the revision is liable to be dismissed.
It transpires from the record that general role was assigned to all the accused. Learned counsel informed that the cross-case was also instituted for the same incident on behalf of the revisionist side. P.W.2 admitted in his cross-examination that he is accused in the cross-case. Learned counsel filed the judgment of S.T. No. 847 of 2011 arising out of Case Crime No.261-A of 2011 and submitted that the accused Chhotelal Yadav, Shankarlal Yadav, Krishnakant, Vijay Bahadur Yadav and Arjun Yadav have already been acquitted of the charges levelled against them under section 147, 323 r/w 149, 325 r/w 149, 307 r/w 149, 504 and 506 I.P.C. The copy of the judgment is filed by way of supplementary affidavit (Criminal Misc. Application No.83616 of 2019) and it is also submitted that prosecution could not prove the case against the accused against whom the charge sheet was submitted in Court and they have been acquitted by the Trial Court, therefore, no purpose shall be solved if the accused is summoned under section 319 Cr.P.C. and is tried again for the same.
Learned counsel relied upon AIR 2023 Supreme Court 1, Sukhpal Singh Khaira v. State of Punjab wherein Hon'ble Apex Court formulated a few questionnaire and answered those questions in Para 33 and it is held that:
"the power under Section 319 Cr.P.C. is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined in the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable".
In the impugned case, the co-accused which were charge-sheeted by investigating officer have been acquitted and no case is found beyond reasonable doubt against those accused. As per F.I.R. and evidence, the present revisionist has not been assigned the specific role which may lead to separate trial against the present revisionist.
The copies of statement of witnesses recorded during the trial is annexed with the revision which transpires that all the accused including the present revisionist Raju Yadav were shown armed with lathi and danda in their hands and if the prosecution could not prove the case against Chhotelal Yadav, Shankarlal Yadav, Krishnakant, Vijay Bahadur Yadav and Arjun Yadav then no specific case can be proved against the present revisionist Raju Yadav. Therefore, the summoning of the present revisionist Raju Yadav under section 319 Cr.P.C. will serve no fruitful purpose if he is tried separately again for the same offence with the same witness.
Moreover, when the application under section 319 Cr.P.C. was allowed, the statement of all the witnesses were not recorded. In these circumstances, the revision has no force and is liable to be dismissed.
Accordingly, the present revision is allowed.
Let a copy this judgment in the order as well as records of the Trial Court, if any, be sent to the Trial Court concerned for necessary information and compliance of this order.
Order Date :- 13.2.2023
Manoj K.
