Ajay Pal And Another vs State Of U.P. And Another
2023 Latest Caselaw 7607 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 90
 

 
Case :- CRIMINAL REVISION No. - 5 of 2023
 

 
Revisionist :- Ajay Pal And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Mahendra Bahadur Singh
 
Counsel for Opposite Party :- G.A.,Akhilesh Kumar Mishra
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Rejoinder affidavit filed on behalf of revisionists, is taken on record.

Heard learned counsel for the revisionists, learned counsel for the O.P. No. 2 as well as learned A.G.A. for the State.

This criminal revision has been filed against the order dated 8.12.2022 passed by Additional Session Judge-I, Basti in S.T. No. 137 of 2019 (State Vs. Gajanand Pal and others) Crime No. 120 of 2019, under section 147, 148, 307, 323, 504 and 506 IPC, P.S. Lalganj, District Basti. By the impugned order the learned court below on an application under section 319 Cr.P.C. has summoned the revisionists Ajay Pal and Vishram Pal to face trial with co-accused.

The FIR of this case was lodged on 20.6.2019 at 21:38 O'clock by Rameshwar Pal. The prosecution case is that the cousin brother of the informant has made a complaint for the development work of the village of which meeting was held on 20.6.2019 and after the meeting concluded the brother of the informant Shiv Bahadur Pal, Satendra Bahadur Pal, Veer Bahadur Pal all sons of Shambhu Saran Pal, Vivek Pal son of Shiv Sarada Pal and Sanjay Pal son of Setu Pal were going back. Due to old enmity of the village 8 accused named int he FIR assaulted the brothers of the informant with iron rod and bamboo stick. After investigation charge-sheet was submitted against six named accused persons while revisionists Ajay Pal and Vishram Pal exonerated by the Investigating Officer. During trial after examination of complainant Rameshwar Pal, P.W. 1 and injured Shiv Bahadur Pal, P.W. 2 an application under section 319 Cr.P.C. was filed by the complainant/prosecution to summon Ajay Pal and Vishram Pal. The learned trial court has allowed the aforesaid application.

Learned counsel for the revisionists submitted that revisionist no. 1 is an assistant teacher in primary school Kharka, Bankati and revisionist no. 2 is an fourth class employee in animal hospital, Bankati, Basti. Both of them have been falsely implicated being government employees. They have not committed any offence. It is further contended that there are so many contradictions in the statements of complainant and his presence on the spot is highly doubtful. He has not suffered any injury while five persons have suffered injuries. This fact itself doubt about the presence of the complainant on the spot so he is not an eye witness of the incident. There are general allegations against the revisionists-accused that they participated in the commission of the offence. The Investigating Officer during course of investigation has collected evidence regarding the fact that revisionists-accused were not present at the place of occurrence. Several persons have given affidavits of the aforesaid fact. The Investigating Officer has also recorded the statement of independent witnesses who have also denied the presence of the revisionists-accused at the place of occurrence. The I.O. on the basis of evidence collected during course of investigation did not find the complicity of the revisionists-accused and not included their names in the charge-sheet on which cognizance has been taken. It is further contended that the real facts are that the informant keeps enmity with one Shiromani Pal due to political rivalry and on the date of incident the informant along with his associates came at the house of Shiromani Pal and assaulted him and his family members. An FIR dated 20.6.2019 was lodged. In this incident Shiromani Pal, Sheshmani Pal and Dewamani Pal were seriously injured and were medically examined at PHC Bankati. Learned counsel further contended that a bare perusal of the impugned order indicates that the same is illegal and perverse. Revisionists-accused have not been charged with specific allegations. It is settled legal principle that provisions of Section 319 Cr.P.C. is not to be invoked in a routine and cursory manner and this power is to be used only on rare occasions when the evidence is strong enough to warrant interfere. The learned trial court has not recorded the finding that the chances of conviction of the revisionists-accused are bright.

The learned counsel has quoted the following case laws:

(i) The Apex Court in the case of Sugreev Kumar Vs. State of Punjab and others; MANU/SC/0389/2019 passed in Criminal 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. The relevant paragraph of the said judgment reads as under:

"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 Cr.P.C., 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 Vs. 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 Cr.P.C. 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.

"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.

(ii) The Apex Court in the judgment and order passed 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 has observed 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.

(iii) The Apex Court in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017 has 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 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".

(iv) The Apex Court in the case of Indra Mohan Goswami and others Vs. State of Uttaranchal reported in A.I.R. 2008 SC 251l; has held that the court must ensure that criminal prosecution is not utilized as an instrument of harassment or for seeking private vendetta or with an ulterior motive to prosecute the accused.

Learned counsel for the opposite parties on the other hand contended that revisionists-accused are named in the FIR with specific allegations that they were present at the place of occurrence and have participated in the commission of offence. In this incident five persons namely Shiv Bahadur Pal, Satendra Bahadur Pal, Veer Bahadur Pal, Vivek Pal and Sanjay Pal have suffered injuries. Their medico legal report is part of the record. The complainant is also an eye witness of the incident. The complainant and all the injured witnesses in their statements recorded under section 161 Cr.P.C. have fully corroborated the allegations of the FIR and stated about the involvement of revisionists-accused also in the commission of the offence. The I.O. only on the basis of some affidavits and statements of some so called independent witnesses who are friendly to the accused has exonerated the revisionists-accused in an improper manner. It is further contended that during trial complainant Rameshwar Pal and one injured witness Shiv Bahadur Pal have been examined. They have again reiterated their previous statements recorded under section 161 Cr.P.C. stating about the involvement and active participation of the revisionists-accused in the incident. So there is cogent evidence in form of eye witness account and testimony of the injured witness which can not be ignored. There is no illegality in the impugned order.

Standard of evidence required for exercising the powers under section 319 Cr.P.C. is one which is more than prima facie case which is applied at the time of framing of charge. It inter alia includes the principle that only when very strong and cogent evidence occurs against a person the power should be exercised. The aforesaid proposition of law is laid down by Apex Court in a catena of decision including the Constitution Bench decision of Hardeep Singh Vs. State of Punjab AIR (1998) SC 3148.

The revisionists-accused are named in the FIR and there are specific allegations against them that they have assaulted the cousins of complainant and others with iron rod and lathi. According to prosecution case Satendra Pal, Shiv Bahadur Pal, Veer Bahadur Pal, Sanjay Pal and Vivek Pal have suffered injuries in the incident. They have been medically examined and number of visible injuries have been found on their body which is evident from the medico legal report. The complainant himself is an eye witness. During trial complainant and another injured witness Shiv Bahadur Pal have been examined and they have corroborated the prosecution case and has stated about the involvement and active participation of the revisionists-accused in the incident. So there is cogent evidence in form of testimony of an injured witness as well as eye witness, while the investigating officer has exonerated the revisionists accused only on the basis of statements of some co-villagers who have only denied the presence of the revisionists accused at the time of occurrence at the place of incident. It is settled principle of law that the testimony of an injured witness has greater evidentiary value and can not be ignored but for sound and cogent reasons.

The Apex Court in Rajendra Singh versus State of UP A.I.R. 2007 SC 2786 has held that the statement of witnesses to the Investigating Officer under section one 161Cr.P.C. cannot be relied upon in recording finding that accused sought to be tried could not have been present at the scene of occurrence. It is further held that it must appear to the court on the evidence that someone not arrayed as accused appears to have committed an offence. The court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence.

So applying the test as laid down by the Apex Court on the present set of facts it is clear that there is strong evidence against the revisionist accused. The evidence and other material on record pass the test as laid down by the Apex Court which is more than a prima facie case as exercised at the time of framing of charge, but short of satisfaction to the extent that the evidence if got unrebutted, would lead to a conviction.

The learned trial court has passed a detailed and reasoned order narrating the entire facts, the averments of the application, and objections, the evidence available on record, and the proposition of law on the point and after analyzing it has come to the conclusion that there is sufficient ground to summon the revisionist accused and has allowed the application. The impugned order is just and proper. There is no illegality or infirmity in the impugned order. There is no ground to interfere in the impugned order. This criminal revision is liable to be dismissed.

This criminal revision is, accordingly dismissed.

Order Date :- 16.3.2023

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