Basanti vs State Of U.P. And Another
2023 Latest Caselaw 14 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- CRIMINAL REVISION DEFECTIVE No. - 451 of 2022
 

 
Revisionist :- Basanti
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Ashok Kumar Pandey,Arun Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

(Ref : Crl. Misc. Delay Condonation Application)

Heard learned counsel for the revisionist and learned A.G.A. Perused the record.

This is a defective revision. Office has reported that there is delay of 71 days in filing this criminal revision.

Cause shown is sufficient.

Delay is condoned and delay condonation application is allowed.

(Ref : Crl. Revision)

Heard learned counsel for the revisionists as well as learned A.G.A. for the State and perused the record.

The instant criminal revision has been filed against the judgement and order dated 07.9.2021 passed by the learned Judicial Magistrate, Chakiya, Chandauli in Criminal Case no.1598 of 2016 (CNR No.UPCD120009112016), Ritu vs. Kanhaiya and others whereby the revisionist has been summoned in exercise of power under sections 319 Cr.P.C. under Sections 498A, 323 I.P.C. and Section 3/4 of D.P. Act, Police Station-Chakia, District-Chandauli.

Learned counsel for the revisionist submits that the revisionist was not summoned in the aforesaid complaint case in exercise of power u/s 204 Cr.P.C. as there was no specific allegation against her. After recording the statements u/s 244 Cr.P.C. an application u/s 319 Cr.P.C. has been moved by the complainant and the court below in a casual way has summoned the revisionist as an additional accused vide order dated 7.9.2021 in exercise of power under section 319 Cr.P.C. to face the prosecution u/s 498A, 323 I.P.C. and 3/4 D.P. Act.

Learned counsel for the revisionist submitted that the impugned order is de hors of the settled principles of law by the Hon'ble Apex Court. This matter arises out of matrimonial dispute between the husband and wife and the revisionist is a relative of the husband, who has not been attributed any specific role in the commission of offence. The revisionist (non accused) was also not summoned u/s 204 Cr.P.C. in a complaint whereby a general allegation has been attributed to all accused persons. In this regard learned counsel for the revisionist has relied upon the latest judgment of Hon'ble Apex Court in the case of Kahkashan Kausar @ Kausar Sonam and others vs. State of Bihar and others decided on 8.2.2022 in Criminal Appeal No.195 of 2022, in which it has been held :

"18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."

Learned counsel for the revisionist submits that there was general and sweeping allegation in the complaint, consequently, the revisionist was not summoned under section 204 Cr.P.C. Thereafter, without taking into account that there is general and sweeping allegation against the revisionist, the court below in a most mechanical sense has summoned the revisionist in exercise of power under Section 319 Cr.P.C.

Learned counsel for the revisionist has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C. :

"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

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.

Learned counsel for the revisionists has further drawn the attention of the Court to para-12 of the above judgement:

"12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one,is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused."

Learned counsel for the revisionist has further submitted that after recording the statement u/s 200 and 202 Cr.P.C. the court below has found nothing against the revisionist but in exercise of power u/s 319 Cr.P.C. the revisionist has been summoned in a cavalier fashion and without having any cogent evidence against her. Learned counsel for the revisionist in this regard has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019, in which it has been held that :

"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."

Moreover, in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, it has been stated that,"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 I.O. 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. revisionists) complicity has come on record".

I have perused the order impugned and I am of the considered opinion that the order passed by the court below is dehors of the law laid down by Hon'ble the Apex Court in the aforesaid judgment. Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above), therefore, impugned order dated 7.9.2021 is hereby quashed and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of six weeks from the date of producing certified copy of this order by the revisionist.

With the aforesaid observations, the present revision stands disposed off.

Order Date :- 2.1.2023

M. Kumar