Raju Singh @ Avnendra Singh vs State Of U.P. And Another
2023 Latest Caselaw 7585 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Judgement Reserved: 19.12.2022
 
						Judgement Delivered: 16.03.2023
 
Court No. - 71
 
Case :- APPLICATION U/S 482 No. - 12316 of 2022 
 
Applicant :- Raju Singh @ Avnendra Singh 
 
Opposite Party :- State of U.P. and another 
 
Counsel for Applicant :- Vikas Tiwari, Vineet Sankalp 
 
Counsel for Opposite Party :- G.A., Nand Kishor Mishra, Rakesh Kumar Gupta, Shilpa Ahuja
 
With
 
Case :- APPLICATION U/S 482 No. - 25601 of 2021 
 
Applicant :- Smt. Rama Singh 
 
Opposite Party :- State of U.P. and another 
 
Counsel for Applicant :- Gaurang Dwivedi, Vikas Tiwari, Vimlendu Tripathi 
 
Counsel for Opposite Party :- G.A., Nand Kishor Mishra, Rajrshi Gupta, Shilpa Ahuja 
 
Hon'ble Samit Gopal, J.

1. These two applications under Section 482 Cr.P.C. are connected together as they arise out of the same case, are against the same order impugned therein and the proceedings of the same case and are of co-accused persons.

2. Criminal Misc. Application U/S 482 Cr.P.C. No. 12316 of 2022 (Raju Singh @ Avnendra Singh Vs. State of U.P. and another) has been filed by the applicant Raju Singh @ Avnendra Singh with the following

prayers :-

"It is, therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to allow the present Criminal Misc. Application and to quash the entire proceeding of Session Trial No. 76 of 2014 (State Vs. Ram Singh @ Ramu Singh) pending before the court of learned Addl. Sessions Judge, Court No. 1/Special Judge (D.A.A.) Act, arising out of Case Crime No. 98 of 2014, under 302/34 I.P.C., 307/34 I.P.C., Police Station Kharela, District Mahoba and also be pleased to quash the impugned summoning order dated 28.10.2021 passed by learned Addl. Sessions Judge, Court No. 1/Special Judge (D.A.A.) Act, Mahoba (Annexure No. 23) under Section 319 Cr.P.C. in ST No. 76 of 2014, under 302/34 I.P.C., 307/34 I.P.C., "State Vs. Ram Singh @ Ramu Singh" Police Station Kharela, District Mahoba and also be pleased to quash the order dated 07.4.2022 passed by Addl. Sessions Judge, Court No. 1, whereby bailable warrants have been issued against the applicant (Annexure No. 25).

It is further prayed that this Hon'ble Court may also be pleased to stay the further proceedings of ST No. 76 of 2014 pending before the court of learned Addl Sessions Judge, Court No. 1/Special Judge (D.A.A.) Act, Mahoba during the pendency of present Criminal Misc. Application before this Hon'ble Court otherwise applicant would suffer with irreparable loss and injury.

And/or may kindly be pass such other or further order, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, so that justice may be done."

3. Criminal Misc. Application U/S 482 Cr.P.C. No. 25601 of 2021 (Smt. Rama Singh Vs. State of U.P. and another) has been filed by the applicant Smt. Rama Singh with the following prayers :-

"It is, therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to allow the present Criminal Misc. Application and to quash the impugned summoning order dated 28.10.2021 passed by learned Addl Sessions Judge, Court No. 1/Special Judge DAA Act, Mahoba, under Section 319 Cr.P.C. in ST No. 76 of 2014, under 302/34, 307/34 I.P.C., "State of U.P. vs. Ram Singh @ Ramu Singh" P.S. Kharela, District Mahoba.

It is further prayed that this Hon'ble Court may also be pleased to stay the further proceeding of ST No. 76 of 2014 pending before the court of learned Addl Sessions Judge, Court No. 1/Special Judge DAA Act, Mahoba during the pendency of present Criminal Misc. Application before this Hon'ble Court otherwise applicant would suffer with irreparable loss and injury.

And/or may kindly be pass such other or further order, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, so that justice may be done."

4. The orders passed in Criminal Misc. Application U/S 482 Cr.P.C. No. 12316 of 2022 (Raju Singh @ Avnendra Singh Vs. State of U.P. and another) on various dates are extracted herein below :-

1. On 9.5.2022 the following order was passed :-

"Heard learned Counsel for the applicant, learned AGA for State and perused the material available on record.

Applicant has invoked jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire proceeding of Session Trial No.76 of 2014, State versus Ram Singh @ Ramu Singh, (Case Crime No.98 of 2014), under Sections 302/34, 307/34 IPC, Police Station Kharela, District Mahoba and summoning order dated 28.10.2021 passed by the Court, under Section 319 Cr.P.C., dated 07.04.2022 bailable warrant against the applicant.

Learned Counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case. He has committed no offence. Entire prosecution story is false and fabricated. No offence against the applicant is made out under the alleged sections. It is further submitted that although applicant was named in the FIR but in investigation no evidence was found against him and matter was investigated twice and both times Investigating Officer exonerated the accused applicant and submitted charge sheet against only one accused i.e. Ram Singh @ Ramu Singh. Court below wrongly summoned the accused applicant exercising its power under Section 319 Cr.P.C. but no degree of satisfaction has been recorded in the impugned order. Impugned order is against law and fact and it has been passed without exercising judicial mind. Applicant cannot be summoned under Section 319 Cr.P.C. in any manner. Co-accused Smt. Rama Singh has been granted indulgence of this Court against the impugned order. Learned Counsel for the applicant referred to the judgements of Apex Court passed in the cases of Shishupal Singh versus State of U.P. and others, (2019) 8 SCC 682; Brijendra Singh and others versus State of Rajasthan, (2017) 7 SCC 706 and Hardeep Singh and others versus State of Punjab and others, (2014) 3 SCC 92.

Matter requires consideration.

Notice on behalf of State has been accepted by learned AGA.

Issue notice to the opposite party no.2 to be served through CJM concerned returnable within six weeks.

Counter affidavit may be filed by opposite parties within two months.

Rejoinder, if any, be filed by applicant within next two weeks.

List in the month of August, 2022 after exchange of pleadings by both the parties.

Till further order, further proceedings pursuant to the impugned order in Session Trial No.76 of 2014, State versus Ram Singh @ Ramu Singh, (Case Crime No.98 of 2014), under Sections 302/34 and 307/34 IPC, Police Station Kharela, District Mahoba, shall remain stayed and applicant shall not be coercively dealt with."

2. On 31.8.2022 the following order was passed :-

"Learned counsel for applicant, learned counsel for Opposite Party No.2 and learned AGA for State are present.

Pleadings have already been exchanged by the parties.

It is stated at bar that another Application U/S No. 25601 of 2021, arising out of same order impugned, is still pending and both the cases should be heard and decided together.

Let this case be listed along with the aforesaid application.

As requested by the learned counsel for Opposite Party No.2, list on 7.9.2022 in the additional cause list."

3. On 07.9.2022 the following order was passed :-

"Learned counsel for applicant, learned AGA and learned counsel for Informant are present.

On the last date, on the request of learned counsel for Informant, case was directed to be fixed today.

Today again, Sri Vinay Kumar Mishra, holding brief of Ms. Rajrshi Gupta, learned counsel for Informant prayed for pass over the case on the ground that Ms. Rajrshi Gupta is not present in the court today.

Learned counsel for Informant also undertakes that matter will be argued on the next date fixed from the side of Informant.

As requested by learned counsel for Informant, list on 9.9.2022 along with connected case."

4. On 09.9.2022 the following order was passed :-

"List revised.

These two matters have been nominated to this Bench by Hon'ble The Chief Justice vide order dated 08.9.2022 and therefore, both applications are taken up together.

Heard Sri Vineet Sankalp, learned counsel for the applicant/Raju Singh @ Avnendra Singh, Sri Vimlendu Tripathi, learned counsel for the applicant/Smt. Rama Singh, Sri Rakesh Kumar Gupta and Ms. Shilpa Ahuja, learned counsels for the opposite party no. 2 and Sri Sanjay Kumar Singh, learned State counsel.

Learned counsels for the both the applicants prays for an adjournment in the matter for four days. Prayer is allowed.

List on 15.9.2022 along with connected matter."

5. On 15.9.2022 the following order was passed:-

"Sri Manish Tiwary, learned Senior Advocate assisted by Sri Vikas Tiwari, learned counsel for the applicant, Sri Dilip Kumar, learned Senior Advocate assisted by Sri Rakesh Kumar Gupta and Ms. Shambhavi Shukla, learned counsel for the opposite party no.2 and Sri Ankit Srivastava, learned counsel for the State are present.

Learned counsel for the applicant prays for and is granted a weeks' time to file rejoinder affidavit to the counter affidavit of the opposite party no.2.

Let the matter be listed on 27.09.2022."

6. On 14.11.2022 the following order was passed:-

"List revised. No one appears on behalf of the applicant to press this application.

Ms. Shilpa Ahuja, learned counsel for the opposite party no.2 and Sri S.B. Maurya, learned counsel for the State are present.

Since there is no representation on behalf of the applicant even in the revised list, as a last opportunity, the matter is adjourned today.

Let the matter be listed on 03.12.2022."

7. On 06.12.2022 the following order was passed :-

"Sri Manish Tiwary, learned Senior Advocate assisted by Sri Vineet Sankalp and Sri Vikas Tiwari, learned counsels for the applicant, Sri Rakesh Kumar Gupta and Ms. Shilpa Ahuja, learned counsels for the opposite party no.2 and Sri Sanjay Kumar Singh, learned counsel for the State are present in the matter of Raju Singh @ Avnendra Singh.

Learned counsel for the State states that he has filed a counter affidavit on 19.11.2022 in the office, but the same is not on record.

Office is directed to trace out the same and place it on record by the next date.

Learned counsel for the applicant prays for and is granted a weeks' time to file rejoinder affidavit.

In the connected matter of the applicant- Smt. Rama Singh, Sri Manish Tiwary, learned Senior Advocate assisted by Sri Vikas Tiwari appears for the applicant, Ms. Shilpa Ahuja appears for the opposite party no.2 and Sri Sanjay Kumar Singh, learned A.G.A. appears for the State.

It is stated by learned counsel for the opposite party no.2 that Sri Dilip Kumar, Senior Advocate is appearing in the matter who is indisposed due to some personal reason and as such the matter be adjourned for a week.

Prayer is allowed.

Learned counsels for the parties state that the matter be placed for final disposal.

Let the matter be listed on 19.12.2022 peremptorily for final disposal.

It is made clear that the matter will not be adjourned on the next date on any pretext. The present matter is nominated to this Bench.

In the case of the applicant- Raju Singh @ Avnendra Singh, a Stay Extension Application dated 29.11.2022 has been filed and it is stated by placing Annexure-4 to the affidavit in support of stay extension application that vide order dated 25.11.2022 the trial court has fixed the matter for 08th December, 2022 and has passed an order that the accused to produce before the Court any order of extension of stay on the said date. It is argued that only on 14.11.2022 the interim order in the matter could not be extended as the counsel could not appear on the said date whereas the interim order was continuing.

In the facts & circumstances as stated above, the trial court may be informed that the matter is listed for final disposal on 19.12.2022 before this Court and as such may not proceed to pass any coercive order against the accused till next date of listing only.

In the case of the applicant- Smt. Rama Singh also a Stay Extension Application dated 22.11.2022 has been filed and it is argued that an interim order was continuing in the matter and it was only on 14.11.2022 the same could not be extended due to non presence of learned counsels for the applicant.

In the facts & circumstances as stated above, the order passed in the case of the applicant- Raju Singh @ Avnendra Singh shall also be applicable in the case of the applicant- Smt. Rama Singh till the next date of listing only."

8. On 19.12.2022 the following order was passed :-

1. List revised.

2. Heard.

3. Sri Manish Tiwary, learned Senior Advocate, assisted by Sri Vikas Tiwari and Sri Vineet Sankalp, learned counsels for the applicants, Sri Rakesh Kumar Gupta, learned counsel for the opposite party no.2 in the matter of Raju Singh @ Avnendra Singh.

4. Sri Manish Tiwary, learned Senior Advocate, assisted by Sri Vikas Tiwari, learned counsel for the applicant and Sri Rajrshi Gupta, learned counsel for the opposite party no. 2 in the matter of Smt. Rama Singh.

5. Sri Sanjay Kumar Singh, learned Additional Government Advocate for the State of U.P. has also been heard in both the matters.

6. Arguments concluded in both the matters.

7. Judgement reserved.

8. Interim order, if any, shall remain in currency till delivery of judgement."

5. The orders passed in Criminal Misc. Application U/S 482 Cr.P.C. No. 25601 of 2021 (Smt. Rama Singh Vs. State of U.P. and another) on various dates are extracted herein below :-

1. On 14.12.2021 the following order was passed:-

"Supplementary affidavit filed by learned counsel for the applicant today in the Court, is taken on record.

The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 28.10.2021 passed by learned Additional Sessions Judge, Court No.1/Special Judge D.A.A. Act Mahoba in Sessions Trial No. 76 of 2014 under Sections 302/34, 307/34 I.P.C. Police Station Kharela, District Mahoba, whereby the applicant has been summoned to face trial on an application under Section 319 Cr.P.C.

Heard Shri Vimlendu Tripathi learned counsel for the applicant, Sri Rajrshi Gupta, learned counsel for the opposite party no.2 learned A.G.A. for State and perused the material on record.

In view of submissions made by learned counsel for the applicant, matter requires consideration.

Notice on behalf of State has been accepted by learned A.G.A.

Put up this case as fresh on 23.12.2021.

Till the next date of listing, no coercive action shall be taken against the applicant in the aforesaid case pursuant to the impugned order dated 28.10.2021."

2. On 23.12.2021 the following order was passed :-

"As prayed, put up on 20.01.2022 as fresh.

Interim order, if any, is extended till the next date of listing."

3. On 21.1.2022 the following order was passed:-

"The matter is taken up through video conferencing.

On the request of learned A.G.A. appearing for the State of U.P./opposite party no. 1, list this case on

03.02.2022 as fresh, before the appropriate Bench.

Interim order, earlier granted by this Court, is extended till the next date of listing."

4. On 18.2.2022 the following order was passed:-

"On the matter being taken up, learned counsel for opposite party no. 2 submits that counter affidavit on behalf of opposite party no. 2 is under preparation and he may be allowed three weeks' time to file counter affidavit.

List this case after three weeks.

Interim order, earlier granted, is extended till the next date of listing."

5. On 24.3.2022 the following order was passed :-

"As prayed, list this case on 05.05.2022.

Interim order is extended till then."

6. On 5.5.2022 the following order was passed:-

"List on 31.5.2022.

Interim order, if any, shall continue to operate till the next date of listing."

7. On 31.5.2022 the following order was passed:-

"Due to paucity of time, the case could not be taken up, today.

List this case on 28.7.2022.

Interim order, if any, is extended till the next date of listing."

8. On 28.7.2022 the following order was passed:-

"List after three weeks.

Interim order, if any, is extended till the next date of listing."

9. On 7.9.2022 the following order was passed:-

"Interim order, granted earlier, shall continue till the next date of listing.

List along with connected case."

10. On 9.9.2022 the following order was passed:-

"List on the date fixed in the connected Application U/S 482 No. 12316 of 2022 (Raju Singh @ Avnendra Singh vs. State of U.P.)."

11. On 15.9.2022 the following order was passed:-

"Sri Manish Tiwary, learned Senior Advocate assisted by Sri Vikas Tiwari, learned counsel for the applicant, Sri Dilip Kumar, learned Senior Advocate assisted by Sri Rakesh Kumar Gupta and Ms. Shambhavi Shukla, learned counsel for the opposite party no.2 and Sri Ankit Srivastava, learned counsel for the State are present.

Counter affidavit on behalf of the State/opposite party no.2 is on record.

Learned counsel for the applicant prays for and is granted a weeks' time to file rejoinder affidavit to the same.

Counter affidavit of the opposite party no.2 is also on record to which a rejoinder affidavit has been filed on behalf of the applicant which is also on record.

Let the matter be listed on the date fixed in the connected matter.

Interim order, if any, is extended till the next date of listing."

12. On 27.9.2022 the following order was passed:-

"Heard Sri Vikas Tiwari, learned counsel for the applicant, Sri R.K. Gupta, learned counsel for the opposite party no. 2 and Sri B.B. Upadhyay, learned counsel for the State.

List on 14.11.2022 along with connected matter.

Interim order, if any, shall remain in currency till the next date of listing."

13. On 14.11.2022 the following order was passed:-

"List revised. No one appears on behalf of the applicant to press this application.

Ms. Shilpa Ahuja, learned counsel for the opposite party no.2 and Sri S.B. Maurya, learned counsel for the State are present.

Since there is no representation on behalf of the applicant even in the revised list, as a last opportunity, the matter is adjourned today.

Let the matter be listed on 03.12.2022."

14. On 6.12.2022 the following order was passed:-

"For order, see order of date passed in Application U/S 482 No. 12316 of 2022 (Raju Singh @ Avnendra Singh vs. State of U.P. and another)."

15. On 19.12.2022 the following order was passed:-

"For order see order of date passed in Application U/S 482 No. 12316 of 2022 (Raju [email protected] Singh vs. State of U.P. and another)."

6. The facts arising out in the case are that a First Information Report was lodged on 12.3.2014 at 11:15 AM by Pushpraj Singh against Raju Singh @ Avnendra Singh, Smt. Rama Singh, Raghvendra Singh, Ramu Singh as Case Crime No. 98 of 2014, under Sections 147, 148, 149, 307/302 I.P.C., Police Station Kharela, District Mahoba in connection with an incident said to have taken place on 11.3.2014, Tuesday at about 4:30 PM with the allegation that he with his associates Bharat Kumar Tiwari, Ram Milan @ Chainu, Pradeep Kumar and Lakhan Lal Tiwary who is brother of the deceased Bharat Kumar, had come to meet him, together went to see their fields in Parhaita Mauja Basni Haar where in the farm house Raju Singh @ Avnendra Singh, Rama Singh Raghvendra Singh, Raju Singh and one unknown person were sitting on the roof. One person was with DBBL gun, on seeing them they started indiscriminate firing. Fire of rifle of Raju Singh hit Chainu Nai, Raghvendra Singh fired from his mouser. Raghvendra Singh, Raju Singh and Smt. Rama Singh are residents of Kharela whereas Ramu Singh is the resident of Surha who fired indiscriminately from his licensed rifle due to which the first informant, Lakhan Lal Tiwari and Pradeep Kumar saved themselves by lying down. They took the injured in the vehicle to the police station where they informed the police orally and further went to Kharela for first aid from where they immediately went to District Hospital, Mahoba where the doctors declared Bharat Kumar Tiwari dead. He has come to give a written report at the police station. Legal action be taken against the accused persons. Kamta Prasad resident of village Hussaina, District Hamirpur is the scribe of the said F.I.R.

The inquest on the body of Bharat Kumar Tiwari was conducted on 12.3.2014 after which his post mortem examination was done on 12.3.2014 itself. The doctor in the post mortem examination report stated that he was brought dead at District Hospital, Mahoba on 11.3.2014 at 6:30 PM. Further the doctor found two gunshot injuries being an entry wound with an exit on the body of the deceased. Cause of death was opined as haemorrhagic shock  due to ante mortem gunshot injury. Chainu Nai was medically examined on 11.3.2014 at Maharani Laxmi Bai Medical College, Jhansi where he was provisionally diagnosed as having firearm injury on right shoulder. He was provided treatment. He was found to have had fracture of clavicle.

The matter was investigated after which a charge sheet no. 40 of 2014. dated 10.6.2014 was filed against Ram Singh @ Ramu Singh, under Sections 302/307 I.P.C. only. In so far as Smt. Rama Singh and Raghvendra Singh are concerned their implication was found to be false and as such their names were expunged in the matter. Avnendra Singh @ Raju Singh was found absconding and as such proceedings under Section 83 Cr.P.C. were drawn against him. The investigation since remained pending the Investigating Officer finally came to the conclusion that Avnendra Singh @ Raju Singh, Rama Singh, Raghvendra Singh have been falsely implicated in the case and hence submitted a Final Report No. 3 of 2015, dated 25.2.2015. Against the same a protest petition dated 24.9.2015 was filed by the first informant with the prayer to reject the Final Report No. 55 of 2015 (the number of which appears to be wrongly typed), allow the protest petition and take legal action against the accused persons. The trial court vide its order dated 07.11.2015 allowed the protest petition, quashed the Final Report No. 03 of 2015 and summoned the accused Raju Singh @ Avnendra Singh under Section 302 I.P.C. and Smt. Rama Singh and Raghvendra Singh under Section 307 I.P.C. Raju Singh @ Avnendra Singh challenged the order dated 7.11.2015 passed by the Chief Judicial Magistrate on the protest petition before the Sessions Judge, Mahoba being Criminal Revision No. 20 of 2016, Raju Singh @ Avnendra Singh vs. State of U.P., which was allowed. The order dated 7.11.2015 passed by the C.J.M., Mahoba was set aside and it was directed that the C.J.M. shall consider the matter again on merits considering the protest petition, the judgement of the Apex Court in the case of Dharmpal vs. State of Haryana: 2013 ACC 963 and the observations in the said judgement and order. The matter was taken up by the C.J.M., Mahoba and vide order dated 27.09.2018 he forwarded the file to the Sessions Judge, Mahoba for further action. The Sessions Judge, Mahoba vide order dated 22.10.2018, remanded the matter back to the C.J.M., Mahoba with a direction to ensure compliance of the judgement and order dated 3.9.2016. In compliance of the order dated 22.10.2018, the C.J.M., Mahoba passed an order that since cognizance has already been taken of the offences, he cannot take cognizance again which is barred by law and sent the matter back to the Sessions Judge, vide order dated 28.2.2019. The matter was again sent to the C.J.M., Mahoba for disposal as per the order dated 3.9.2016 vide order dated 15.3.2019 passed by the Sessions Judge, Mahoba. The C.J.M., Mahoba vide order dated 14.6.2019 directed further investigation in the matter. The matter was further investigated and the Investigating Officer reached to a conclusion that Raju Singh @ Avnendra Singh, Smt. Rama Singh, Raghvendra Singh have been falsely implicated in the matter and reiterated the previous Final Report No. 3 of 2015 vide his note dated 20.9.2019 in C.D. No. 20. The case was then put up for trial only against Ram Singh @ Ramu Singh and was numbered as S.T. No. 76 of 2014, State vs. Ram Singh @ Ramu. During trial Pushpraj Singh the first informant was examined as P.W.-1, Lakhan Lal was examined as P.W.-2 and Chainu Nai was examined as P.W.-3. Subsequent thereto an application no. 87 Kha under Section 319 Cr.P.C. was moved by the opposite party no. 2/Pushpraj Singh on 20.7.2017 with the prayer that Raju Singh @ Avnendra Singh, Smt. Rama Singh, Raghvendra Singh and Raghuraj Singh be summoned under Section 319 Cr.P.C., be tried and punished accordingly. It is herein clarified that Raghuraj Singh was not named in the F.I.R. but was made an accused in the matter during investigation as he was identified as one other person referred to in the F.I.R. who was stated to be armed with a DBBL gun. The Application No. 87 Kha of the first informant as well as application no. 35 Kha with regard to deletion of name of Raghvendra Singh from the application no. 87 Kha since he had died in the meantime, were decided vide order dated 28.10.2021 (order impugned herein) and the accused persons namely Raju Singh @ Avnendra Singh and Smt. Rama Singh were summoned for offences under Sections 302/34 I.P.C., Section 307/34 I.P.C. The present applications under Section 482 Cr.P.C. have thus been filed with the prayers as aforesaid.

7. Sri Manish Tiwary, learned Senior Advocate, assisted by Sri Vikas Tiwari and Sri Vineet Sankalp, learned counsels for the applicant Raju Singh @ Avnendra Singh, Sri Rakesh Kumar Gupta, learned counsel for the opposite party no.2 have been heard.

8. Sri Manish Tiwary, learned Senior Advocate, assisted by Sri Vikas Tiwari, learned counsel for the applicant Smt. Rama Singh and Sri Rajrshi Gupta, learned counsel for the opposite party no. 2 have been heard.

9. Sri Sanjay Kumar Singh, learned Additional Government Advocate for the State of U.P. has also been heard in both the matters for the State opposite party.

10. Learned counsel appearing in the matter of Smt. Rama Singh argued the following :-

(i) The order impugned dated 28.10.2021 has been passed without applying judicial mind and in a mechanical manner and it is absolutely arbitrary, illegal and beyond jurisdiction of the trial court.

(ii) Against the order dated 07.11.2015 passed by the Chief Judicial Magistrate, Mahoba allowing the protest petition, rejecting the Final Report No. 03/2015, taking cognizance of the offence and summoning accused Raju Singh @ Avnendra Singh, under Section 302 I.P.C. and Smt. Rama Singh & Raghvendra Singh under Section 307 I.P.C., accused Raju Singh @ Avnendra Singh filed a Criminal Revision No. 20 of 2016, Raju Singh @ Avnendra Singh vs. State of U.P., before the Sessions Judge, Mahoba, which was allowed vide judgement and order dated 3.9.2016 passed by the Sessions Judge, Mahoba, the order dated 7.11.2015 was set aside, and the matter was remanded back to the Chief Judicial Magistrate, Mahoba, with the direction to consider the final report, protest petition, judgement of the Apex Court in the case of Dharampal vs. State of Haryana (2013 ACC 963), ground taken in the revision and decide the same in accordance with law after hearing both the sides.

(iii) There is no evidence whatsoever to summon the applicant in the present matter.

(iv) There is a cross case also lodged by Raju Singh against Sonu Singh @ Pushpraj Singh, Ram Nihor Mishra, Deepu Mishra, Chainu Nai, Bharat Tiwari as Case Crime No. 98A of 2014, under Sections 147, 148, 149, 307 I.P.C. in which a charge sheet has been submitted against Sonu Singh @ Pushpraj Singh, Ram Nihor Mishra, Deepu Mishra, Chainu Nai, Bharat Tiwari as charge sheet no. 40A of 2014, dated 12.7.2014, under Sections 307, 120B, 34 I.P.C. on which cognizance has been taken by the concerned Magistrate on 17.7.2014.

(v) The entire prosecution case is a false case. The applicant is a lady and is an elected Zila Panchayat Member of B.J.P. and is leading a social life.

(vi) The applicant has no criminal history as stated in para-56 of the affidavit.

11. Learned counsel appearing for the applicant Raju Singh @ Avnendra Singh argued the following :-

(i) The applicant has been summoned vide order dated 28.10.2021 passed by the trial court.

(ii) There is no observation of the trial court in the impugned order that evidence shows prima facie case against the applicant.

(iii) The trial court has not recorded its satisfaction at all that the evidence as per it on which it has summoned the applicant, would lead to conviction.

(iv) Section 319 Cr.P.C. cannot be used for summoning the applicant inasmuch as the said provision is only attracted if a person is not an accused in the matter. In the present matter Final Report as submitted is still pending and therefore the applicant continues to remain as an accused and as such he cannot be summoned by exercising powers under Section 319 Cr.P.C. as the said section can only be used for summoning a person who is not being an accused.

(v) The applicant is Block Pramukh of Block Kabrai, District Mahoba and is leading a social and political life in the district. He is a law abiding citizens.

12. Learned counsel appearing for Smt. Rama Singh in Criminal Misc. Application U/S 482 No. 25601 of 2021 has relied upon the following judgements :-

(a) Shishupal Singh vs. The State of U.P. and others : (2019) 8 SCC 682 (para - 8 & 9);

(b) Brijendra Singh and others vs. State of Rajasthan : (2017) 7 SCC 706 (para - 11, 14 & 15);

(c) Hardeep Singh and others vs. State of Punjab and others : (2014) 3 SCC 92 (para - 69 to 80, 99) and;

(d) Sohan Lal and others vs. State of Rajasthan : (1990) 4 Supreme Court Cases 580.

13. Per contra, learned counsel for the opposite party no. 2 appearing in the matter of Smt. Rama Singh argued while placing para-7 of the counter affidavit argued that there is material concealment of relevant fact. It is argued that against the order of summoning dated 7.11.2015 passed by the C.J.M., Mahoba, the applicant Smt. Rama Singh had approached this Court by filing a Criminal Misc. Application U/S 482 Cr.P.C. No. 8844 of 2016 (Smt. Rama Singh vs. State of U.P. and another) in which this Court while disposing of the said petition directed her to surrender before the trial court within 30 days. The said order has been placed before this Court which is annexure no. C.A.-2 to the counter affidavit. It is argued that the applicant is named in the F.I.R. and there is a specific allegation of her participating in the incident. The investigation although concluded by exonerating her in the matter and filing a final report but in the trial her name again surfaced in the statements of the witnesses after which by exercising power under Section 319 Cr.P.C. she was summoned to face trial. It is argued that even if it is presumed that the accused has been discharged by a competent court, summoning the said person under Section 319 Cr.P.C. is not barred as the same is done after evidence regarding her implication comes before the trial court and the trial court then satisfies itself that there is ample ground prima facie for proceeding against the said person. It is argued that in the present case the investigating agency although first filed a final report in favour of the applicant Smt. Rama Singh and two other persons which after an order of further investigation was reiterated by the Investigating Officer but in the trial court after recording of the evidence of three prosecution witnesses, implication of the applicant surfaced on which she has been summoned by the trial court under Section 319 Cr.P.C. It is argued that filing of a final report and subsequently reiterating the said opinion by the Investigating Officer after further investigation would reach to an irresistible conclusion that the said person is not an accused in the present matter. Learned counsel has relied upon the following judgements :-

(a) Bholu Ram vs. State of Punjab and another: 2008 (7) Supreme 444 (para- 16, 24, 25, 40);

(b) Lok Ram vs. Nihal Singh and another : (2006) 10 Supreme Court Cases 192.

The trial court thus was within its powers to summon the applicant under Section 319 Cr.P.C. The present application under Section 482 Cr.P.C. is thus devoid of any merit and deserves to be dismissed.

14. Learned counsel appearing for the opposite party no. 2 in Criminal Misc. Application U/S 482 No. 12316 of 2022, has reiterated the said arguments of learned counsel for the first informant appearing in the connected matter. It is further argued that in para-13 of the case of Manjeet Singh vs. State of Haryana and others : AIR 2021 SC 4274, the Apex Court has summarized the scope and ambit of powers of the trial court under Section 319 Cr.P.C. and looking to the same the order summoning the accused persons under Section 319 Cr.P.C. is a just and proper order.

15. Both learned counsel appearing for the opposite party no. 2 in both the petition, have relied upon para-13 of judgement of the Apex Court in

the case of Manjeet Singh (supra).

16. Learned A.G.A. also adopted the arguments of learned counsels for the opposite party no. 2 in both the petitions and argued that both petitions deserve to be dismissed.

17. After having heard learned counsels for the parties and perusing the records, it transpires that both the applicants in the present 482 Cr.P.C. applications are named in the F.I.R. Investigation concluded and a charge sheet was submitted against one accused only namely Ramu Singh. There was a reference of one other person as an accused who was stated to be armed with DBBL gun. Identity of the said person surfaced during investigation as one Raghuraj Singh. Investigation concluded after submission  of charge sheet against Ramu Singh with the opinion that Smt. Rama Singh and Raghvendra Singh were not involved in the present matter and their implication was found to be false. In so far as Raju Singh @ Avnendra Singh is concerned, he was absconding and as such proceedings under Section 83 Cr.P.C. were taken against him. After certain orders passed by the Sessions Judge concerned and the C.J.M. Mahoba, the matter was then ordered to be further investigated. After further investigation the said final report was again reiterated by the Investigating Officer. Subsequently the trial started against Ramu Singh only in which three prosecution witnesses were examined after which an application under Section 319 Cr.P.C. was filed for summoning the other persons as accused. During hearing of the application under Section 319 Cr.P.C. Raghvendra Singh died. The trial court then vide its order dated 28.1.2021 summoned the applicants under Section 319 Cr.P.C. as stated above.

Argument of learned counsels for the applicants in both the petitions is only to the fact that the said final report remained pending and as such the said person remained as accused in the matter and as such could not have been summoned under Section 319 Cr.P.C. as the requirement under Section 319 Cr.P.C. is of summoning of a person who is not an accused. The said argument does not hold good ground. The Apex Court in the case of Manjeet Singh (supra) in para-13 while summarizing the scope and ambit of Section 319 Cr.P.C. held that the said power can be exercised where the investigating agency for any reason does not array one of the real accused person as an accused, the court is not powerless in calling the said person to face trial. The entire purpose of Section 319 Cr.P.C. is that the real perpetrators of an offence do not go unpunished. The duty of the court is to find out the real truth and ensure that guilty do not go unpunished. Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in case before it. In the present case the filing of final report and its reiteration thereafter in further investigation keeps out the applicants from array of accused person. Para- 13 of the judgement in the case of Manjeet Singh (supra) reads as follows :-

"13. The ratio of the aforesaid decisions on the scope and ambit of the powers of the Court under  Section 319 can be summarized as under:

(i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;

(ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly;

(iii) the law has been properly codified and modified by the legislature under the Cr.P.C. indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law;

(iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished;

(v) where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial;

(vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it;

(vii) the court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency;

(viii) Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial;

(ix) the power under Section 319 CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre- trial stage intended to put the process into motion;

(x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence;

(xi) the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents;

(xii) it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation;

(xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s);

(xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised;

(xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross-examination;

(xvi) even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses);

(xvii) while exercising the powers under Section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial."

18. The order impugned addresses the matter on merits and in detail. There is no illegality or irregularly in the same. In view of the same, this Court does not find any ground to interfere with the impugned order. Both the applications under Section 482 Cr.P.C. thus stand dismissed.

19. The interim orders in both the applications under Section 482 Cr.P.C. are hereby vacated.

(Samit Gopal, J.)

Date :- 16.03.2023

Naresh