Ramdaur vs State Of U.P. And 2 Others
2023 Latest Caselaw 15309 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:105700
 
Court No. - 71
 
Case :- APPLICATION U/S 482 No. - 18112 of 2023
 

 
Applicant :- Ramdaur
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Deepak Kumar Tripathi,Nikhilesh Kumar Chaudhary
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri Deepak Kumar Tripathi, learned counsel for the applicant, Sri B.B. Upadhyay, learned counsel for the State and perused the material brought on record.

3. The present application under Section 482 Cr.P.C. has been filed by the applicant- Ramdaur with the prayer to allow this application and set-aside the order dated 06.02.2023 in Sessions Trial No. 1512 of 2020, (State vs. Kamlesh and others) arising out of Case Crime No. 108 of 2020, under Sections 498-A, 304-B I.P.C. and 3/4 D.P. Act, Police Station Rudhauli, District basti pending in the Court of Additional District & Sessions Judge, Fast Track Court-First, Basti with a further prayer to direct the court below to pass fresh order and summon the opposite party nos. 2 & 3 in the aforesaid case.

4. Learned counsel for the applicant argued that initially an order dated 16.08.2022 was passed by the trial court summoning the opposite parties nos. 2 & 3, under Sections 498-A, 304-B I.P.C. and 3/4 D.P. Act against which they preferred a revision being Criminal Revision No. 3550 of 2022 (Shiv Kumar and another vs. State of U.P. and another) which was disposed of with certain directions by a co-ordinate Bench of this Court vide order dated 05.01.2023, in compliance of which the trial court has rejected the Application No. 36 Kha, under Section 319 Cr.P.C. dated 08.12.2021 of the applicant vide order dated 06.02.2023. It is argued that the trial court has without considering the matter in its true spirit rejected the the application under Section 319 Cr.P.C. It is further argued that in the trial, the first informant Ramdaur was examined as P.W.-1 and Ram Lal was examined as P.W.-2 after which an application under Section 319 Cr.P.C. was moved which was allowed. It is argued that the trial court did not consider the matter properly and the order impugned dated 06.02.2023 is an arbitrary order.Learned counsel argued that the opposite parties nos. 2 & 3 are jeth of the deceased Smt. Sarita who was married around three years back with Kamlesh. It is argued that the opposite parties nos. 2 & 3 are named in the first information report and there are allegations against them. Even in the statement of the said two witnesses they are named. The trial court has failed to consider the said aspect and has without any proper reasoning and finding rejected the application under Section 319 Cr.P.C.

5. Learned counsel for the State has been heard.

6. After hearing the learned counsel for the parties and perusing the records, it is evident that an Application No. 36 Kha was moved under Section 319 Cr.P.C. for summoning the opposite party nos.2 & 3 namely Shiv Kumar and Ram Pratap who are the jeth of the deceased. The said application was allowed by the trial court and the said two persons were summoned against which they preferred a revision being Criminal Revision No. 3550 of 2022 (Shiv Kumar and another vs. State of U.P. and another) before this Court which was disposed of by the order dated 05.01.2023. The said order is extracted herein below:-

"Heard Sri Amit Kumar Singh, learned counsel for the revisionists and learned AGA for the State.

By means of the present revision, the revisionists are assailing the legality and validity of the order dated 16.08.2022 passed by Additional District & Session Judge, FTC-1,Basti in S.T. No. 1512 of 2020 ( State Vs. Kamlesh and others) arising out of case crime no. 108 of 2020 under Sections 498A, 304B IPC and Section 3/4 D.P.Act, P.S. Rudhauli, District Basti is under judicial scrutiny.

Contention raised by the counsel for the revisionist that the revisionists are non accused persons, though they are Jeth of the deceased and named in the FIR lodged by Mr. Ramdaud. The said FIR was lodged on 02.07.2020 for the incident said to have been taken place on 28.06.2020 under section 498A, 304BIPC and Section 3/4 D.P.Act and as per the prevailing practice in the society, the entire family of Kamlesh were roped in the present case, levelling omnibus role of physical assault upon the deceased but fact remains that the deceased was died on account of consuming some poisonous substance. There is no injury over the person of the deceased and therefore the very base of the prosecution case goes haywire. However, the police after making thorough investigation in the matter, submitted charge sheet only against Kamlesh (son-in-law), Bahau (father-in-law) and Phoola @ Phoolan Devi (mother-in-law). Since the matter was cognizable offence, the matter was committed to the court of Sessions and after recording the statement of P.W.-1 Ram Daud annd P.W.-2 Ram Lal was recorded and thereafter an application under Section 319 Cr.P.c. was moved on 25.04.2022 for summoning the non accused persons.

Learned counsel for the revisionists in this regard 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 revisionists has further submitted that the revisionists even not named in the F.I.R. and after thorough investigation the police too has not included the name of the revisionists in the chargesheet, even then the learned trial court has summoned the revisionists exercising his power u/s 319 Cr.P.C. in a cavalier fashion and without having any cogent evidence against them. Learned counsel for the revisionists 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."

Learned counsel for the revisionists laid much emphasis in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, wherein it has been held by the Hon'ble Apex Court 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 same 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 16.08.2022 passed by learned Additional District & Session Judge, FTC-1,Basti is hereby set aside 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 three months positively from the production of certified copy of this order.

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

7. In compliance of the said order of this Court, the trial court vide its order dated 06.02.2023 has rejected the Application No. 36 Kha dated 08.12.2021 filed under Section 319 Cr.P.C. The order of the trial court is well reasoned, speaking order considering every aspect and even considering the law on the subject. There is no irregularity or illegality in the said order and the present petition does not call for any interference.

8. The present application u/s 482 Cr.P.C. is dismissed.

9. A copy of this order be communicated to the concerned trial court by the Registrar (Compliance).

Order Date :- 16.5.2023

AS Rathore

(Samit Gopal,J.)