Mohd Kaleem vs State Of U.P. And 2 Others
2023 Latest Caselaw 8890 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 25.01.2023
 
Delivered on 27 .03.2023
 
Court No. - 77
 

 
Case :- CRIMINAL REVISION No. - 3720 of 2021
 

 
Revisionist :- Mohd Kaleem
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- M J Akhtar,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Sheshadri Trivedi
 

 
Hon'ble Raj Beer Singh,J.

1. Heard Sri V.M. Jaidi, learned Senior Advocate, assisted by Sri M.J. Akhtar and Sri Imran Khan, learned counsel for the revisionist, Sri Satish Trivedi, learned Senior Advocate, assisted by Sri Sheshadri Tivedi, learned counsel for the opposite party No.2 and 3 and learned A.G.A. for the State.

2. This criminal revision has been preferred against the order dated 30.11.2021, passed by the learned Additional Sessions Judge, Court No.1, Muzaffarnagar, in Session Trial No.414 of 2018 (State vs. Dilshad and Others), under Sections 307, 302, 120-B, 147, 148 and 149 IPC, police station Kotwali Nagar, Muzaffarnagar, whereby, the application filed by the informant/revisionist Mohd Kaleem, under Section 319 Cr.P.C., for summoning of the opposite party No.2 and 3, namely, Rajendra and Mausam, has been rejected.

3. It has been argued by learned Senior Counsel for the revisionist that the impugned order is against facts and law and thus, liable to be set aside. The Trial Court failed to follow the procedure for summoning the accused in exercise of its power under Section 319 Cr.P.C. by inviting objections from the accused persons. It is well settled that while exercising powers under Section 319 Cr.P.C. for summoning the accused, who is not charge-sheeted, the evidence collected during investigation and the evidence produced by the prosecution during trial has to be considered. The accused persons have no right to raise objections against application under Section 319 Cr.P.C. Learned Senior Counsel submitted that during trial, PW-1. Mohd. Kaleem and other witnesses, namely, P.W-6 Khaleel and P.W-7 Tazeem have clearly stated in their statements regarding involvement of opposite party No.2 and 3 in conspiracy of the alleged incident. The evidence of said witnesses was sufficient for holding their conviction and which is more than a prima facie case against the said opposite party No.2 and 3, thus, a case for summoning the opposite party No.2 and 3 under Section 319 Cr.P.C. was made out. The quality of evidence produced by prosecution was higher than that of a prima facie case against the alleged accused persons. The genuineness or reliability of the statements of said witnesses was not to be considered at this stage. Referring to statements of P.W.1. Mohd. Kaleem, P.W.6 Khaleel and P.W.7 Tazeem, it was submitted that in view of their statements before the Trial Court and other facts and circumstances of the matter, a case for summoning of opposite party No.2 and 3 is made out and thus, the Trial Court has committed error by rejecting application of the revisionist/complainant filed under Section 319 Cr.P.C. In support of his contentions, learned Senior Counsel for revisionist has placed reliance upon the following case laws:-

(i) Bhura and 4 others Vs. State of U.P. and another [2023 LawSuit (All)57](ii) State of Kerala Vs. Rasheed (Criminal Appeal No.1321 of 2018), decided by the Hon'ble Supreme Court on 30.10.2018.

4. Learned A.G.A. and learned Senior Counsel for the opposite party No.2 and 3 have opposed the revision. Learned Senior Counsel for the opposite party No.2 and 3 argued that there is no illegality or perversity in the impugned order. The Trial Court has considered evidence and all relevant facts of the matter and the application of appellant/revisionist was rejected by the Trial Court by a reasoned order. Referring to facts of the matter, it was submitted that no case for summoning of opposite party No.2 and 3 under Section 319 Cr.P.C. is made out and that there is no illegality or perversity in the impugned order. Learned Senior Counsel for the opposite party No.2 and 3 has relied upon the following case laws:-

(i) Labhuji Amratji Thakor & Ors. vs. State of Gujarat & Anr [2019(1) JIC55(SC)].

(ii) S Mohammed Ispahani vs. Yogendra Chandak and others [2017 LawSuit (SC)1291]

(iii) Brijendra Singh and Ors. vs. State of Rajasthan [AIR 2017 SUPREME COURT 2839]

(iv) Sunil Kumar Gupta and Ors. vs. State of Uttar Pradesh and Ors. Khusbu Gupta vs. State of Uttar Pradesh and Ors.

5. I have considered rival submissions and perused the record.

6. Before considering the merits of the contentions, it would be relevant to refer to Section 319 Cr.P.C. which reads as under:-

"319. Power to proceed against other persons appearing to be guilty of offence. ? (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

...............

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

7. By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused. In case of Hardeep Singh Vs State of Punjab (2014) 3 SCC 92, the Hon'ble Apex Court held as under:

"10. We accordingly sum up our conclusions as follows:

Question Nos.1 & III

Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised

AND

Q. III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.

Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question No. II

Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question No. IV

Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question No.V

Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?

A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."

8. In case of Bhura and 4 others (supra), referring to the case of Hardeep Vs. State of Punjab (supra), the court observed that the Trial Court can summon persons, who have been charge-sheeted, as accused, on the basis of examination-in-chief of a witness and it is not necessary that the witness should be cross-examined before such person can be summoned under Section 319 Cr.P.C. It was further observed that the evidence required for summoning such persons under Section 319 Cr.P.C. is more than prima facie case but short of such evidence which if not rebutted will result in conviction of the persons summon for trial. The case of State of Kerala Vs. Rasheed (supra), referred from the side of the revisionist, deals with interpretation of provisions of section 231 CrPC and the same is not relevant for the dispute involved in the present case.

9. In case of Brijendra Singh and Ors. vs. State of Rajasthan (supra), the Hon'ble Apex Court held as under:-

"10. It also goes without saying that Section 319 Cr.P.C., which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of section 207/208 Cr.P.C., the committal etc., which is only a pre-trial stage intended to put the process into motion.

11. In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word ''evidence' used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word ''evidence' is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word ''evidence' has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that ''evidence' under Section 319 Cr.P.C. could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence."

10. The issue regarding exercise of powers under Section 319 Cr.P.C. has also been considered by Hon'ble Apex Court in case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and another, decided on 23rd July, 2019 [Criminal Appeal No. 1105 of 2019], wherein, it was observed that the standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. It is not that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. As held by the Constitution Bench in case of Hardeep Singh (supra), the power under Section 319 Cr.P.C. is discretionary and 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.

11. Keeping in view of aforesaid legal position, in the instant case it may be seen that the revisionist/informant has lodged first information report of this case against eight accused persons, including the opposite party No.2 and 3, alleging that on 22.08.2017 at 10.30 AM while the informant along with one Mohd. Ammar was going to district court on scooter and reached near Ansari road, accused Dilshad, Mumtaz, Abid and one unknown person came on motorcycle and they fired bullets at Mohd. Ammar. This incident was also witnessed by one Iqbal. Injured Mohd. Ammar was taken to hospital, where he was declared dead. It appears from perusal of record that during investigation it was found that accused Dilsahd, Sandeep, Rahul @ Kapil @ Fauji, Aamir, Gulshanawwar, Naushad and Puja were involved in the incident and that co-accused Jamshed and Gulshanawwar were involved in criminal conspiracy of the incident and charge-sheet was submitted accordingly. It appears that involvement of Mumtaz and Abid was not found and thus, they were exonerated during investigation. Similarly, the opposite party No.2 and 3 were also not charge-sheeted. As per statements of P.W.6 Khaleel and P.W.7 Tazeem, the opposite party No.2 and 3 (Rajendra and Mausam) were involved in conspiracy with co-accused Gulshanawwar, Jamshed and Naushad, who were lodged in the jail. Statement of P.W.1 Mohd. Kaleem was to the effect that opposite party No.2 and 3 have visited the co-accused persons in jail and the alleged conversation between them was heard by P.W-6 and P.W-7. Perusal of impugned order shows that the trial court has considered the statements of P.W-1, P.W-6 and P.W-7 in detail and observed that regarding involvement of opposite party No.2 and 3 in conspiracy, there are contradictions in the statement of the witnesses. As per P.W-1, the opposite party No.2 and 3 used to meet three accused persons in the jail, whereas P.W-6 states that they used to meet only two accused persons, namely, Gulshanawwar and Naushad. P.W-7 states that they used to meet only with co-accused Gulshanawwar. No specific dates of said visits of the opposite party No-2 and 3 to jail was provided. It appears that no entry of jail regarding visits of said persons to jail was brought on record. It was also observed by the Trial Court that in fact co-accused Jamshed was transferred from district jail Muzaffarnagar to district jail Saharanpur and from there to district Mirzapur jail and that at the relevant time he was lodged in Mirzapur jail. It was also observed that on various material points, the statement of P.W-1 was not found consistent with his statement recorded during investigation and that he has accepted that at the time of alleged incident, co-accused Jamshed was lodged in Mirzapur jail. Learned Trial Court has considered the statements of above stated witnesses in detail and noticed certain contradictions and inconsistencies and rendered findings that the evidence was not of such quality and consequence so as to make out a case for summoning of opposite party No.2 and 3 under Section 319 Cr.P.C.. After going through the evidence of above stated witnesses and considering all relevant facts and circumstances of the case, this Court is of the view that evidence of prosecution qua the opposite party No.2 and 3 is not of such quality and consequence so as to make out a case for summoning of the alleged persons as accused. In view of attending facts and circumstances of the case, merely because the Trial Court provided opportunity of hearing to the accused persons, it can not be termed such material illegality so as to warrant any interference in the impugned order. When the evidence and all attending facts and circumstances of the case are considered at the anvil of the stated legal position, no case for summoning of opposite party No.2 and 3 under Section 319 Cr.P.C. is made out.

12. As discussed above, power under Section 319 Cr.P.C. 1973 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 merely 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. In the instant case no material illegality or perversity or error of jurisdiction could be shown in the impugned order so as to require any interference by this Court. The revision has no substance and thus, liable to be dismissed.

13. Accordingly the revision is dismissed.

Order Date :- 27.03.2023

Neeraj