Allahabad High Court
Dharmendra Giri And Another vs State Of U.P. Thru. Prin. Secy. ... on 12 May, 2023
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:33276
Court No. - 15
Case :- CRIMINAL REVISION No. - 17 of 2023
Revisionist :- Dharmendra Giri And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko.
Counsel for Revisionist :- Shailesh Kumar Singh,Adarsh Kumar Maurya,Rajendra Kumar Dwivedi
Counsel for Opposite Party :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard Sri Rajendra Kumar Dwivedi, learned counsel for the revisionist and Sri Pramod Kumar, learned A.G.A. for the State.
2. The instant criminal revision has been filed by the revisionist for setting aside the impugned judgment and order dated 10.10.2022, passed by learned 1st Additional District & Sessions Judge, Lakhimpur Kheri in Sessions Trial No.51 of 2020 "State vs. Ram Ji and others" arising out of Case Crime No.0177 of 2019, under Sections 302 I.P.C., Police Station Bheera, District Lakhimpur Kheri.
3. Learned counsel for the revisionist has submitted that the innocent revisionists have been falsely implicated in the present case. His further submission is that a false first information report came to be lodged under Section 302 I.P.C. against the present revisionists. Upon conclusion of the investigation, no charge sheet came to be submitted against the present revisionists as no credible evidence could be collected against them during investigation. However, during trial, an application under Section 319 Cr.P.C. was moved by the first informant and the court below allowed the same vide impugned order dated 10.10.2022 and summoned the revisionists for the offence punishable under Section 302 I.P.C. to face trial.
4. Learned counsel for the revisionists has also submitted that the law in respect of summoning any other accused person to face trial under Section 319 Cr.P.C. is clearly settled in view of law laid down by Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 and Brijendra Singh v. State of Rajasthan, (2017) 7 SCC 706.
5. His further submission is that the impugned order does not record the kind of satisfaction, which is a condition precedent to summon an accused person under Section 319 Cr.P.C. as held by Hon'ble Supreme Court in Hardeep Singh (supra) and Brijendra Singh (supra), therefore, he submits that the impugned order is palpably illegal and deserves to be set aside.
6. Per contra, learned A.G.A. has opposed the aforesaid prayer made by learned counsel for the revisionists by submitting that the learned trial court has rightly entertained an application under Section 319 Cr.P.C. at the behest of first informant and being satisfied as to availability of sufficient material to proceed against the present revisionists under Section 302 I.P.C. I.P.C. Thus, the present revisionists have been summoned to face the trial. He therefore, submits that the instant criminal revision lacks merit and deserves to be dismissed.
7. His further submission is that in view of aforesaid evidence, learned trial Court has come to pass the impugned order which is well discussed and reasoned wherein no interference by this Court is warranted in exercise of power under Section 401 Cr.P.C. He has also submitted that the on the basis of evidence available on record, it cannot be said that the same is not efficient to clinch conviction, therefore, the argument of learned counsel for the revisionist as to unavailability of evidence which is capable of clinching conviction in the facts of this case is not tenable. He therefore, submits that the instant criminal revision lacks merit and deserves to be dismissed.
8. The kind of satisfaction which is required to be recorded by the learned trial Court before summoning an accused person to face the trial in exercise of its power under Section 319 Cr.P.C. is stated in paragraph nos.105 & 106 of the judgment rendered by Hon'ble Supreme Court in the case of Hardeep Singh (supra), which are quoted below:-
"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.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."
9. Having heard learned counsel for the revisionist, learned A.G.A. for the State and upon perusal of the record, this Court finds that initially a first information report came to be lodged under Section 302 I.P.C. against the present revisionists. However, after conclusion of evidence, no charge sheet came to be filed against the present revisionists. Subsequently, The revisionist has been summoned under Section 319 Cr.P.C. on an application moved by the first informant and on the basis of statements of Yusuf and Anoop Giri, who have been examined as P.Ws.-6 and 7 before the learned trial Court in S. T. No.51 of 2020 in which they have stated that the present revisionists were involved in commission of crime in question. Therefore, there appears sufficient evidence against the present revisionists.
10. Having regard to the aforesaid overall facts and circumstances of the case, this Court does not find any illegality, material irregularity or perversity in the impugned order dated 10.10.2022, therefore, the instant criminal revision lacks merit and deserves to be dismissed.
11. However, it is needless to mention that if the revisionists apply for grant of bail, the court below shall consider and decide the same expeditiously, in accordance with law laid down by the Hon'ble Supreme Court in Satender Kumar Antill Vs. Central Bureau of Investigation and another reported in 2022 SCC OnLine SC 825 and Satender Kumar Antil vs. Central Bureau of Investigation and another reported in 2023 Livelaw (SC) 233.
12. With the aforesaid observations, the instant criminal revision is finally disposed of.
Order Date :- 12.5.2023
Mahesh
