Urmila Devi vs State Of U.P. And 3 Others
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Allahabad High Court

Urmila Devi vs State Of U.P. And 3 Others on 1 March, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2024:AHC:37291
 
Reserved
 
A.F.R.
 

 

 
Court No. - 32
 

 
Case :- CRIMINAL REVISION No. - 1012 of 2023
 
Revisionist :- Urmila Devi
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Revisionist :- Ankit Agarval,Dilip Kumar Patel
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Surendra Singh-I,J.
 

This criminal revision has been filed for challenging the impugned judgement and order dated 05.12.2022 passed by the Sessions Judge, Gautam Buddh Nagar in S.T. No.631 of 2018 (State vs. Khudiram) arising out of Case Crime No. 301 of 2017, under Sections 306 and 506 I.P.C., Police Station-Sector-20, Noida, District-Gautam Buddh Nagar.

2. By the impugned order, the trial Court had rejected the application No.31 Ka filed by the revisionist under Section 319 Cr.P.C. for summoning Mohit Mandal, Krishna Mandal, Arjun Mandal and Sheela Devi in S.T. No.631 of 2018 arising out of Case Crime No.301 of 2018, under Sections 306 and 506 I.P.C., Police Station Sector-20, District Noida.

3. It has been submitted by learned counsel for the revisionist that learned Sessions Judge vide order dated 05.12.2022 has illegally rejected the application filed by the revisionist under Section 319 Cr.P.C. without considering the evidence on record. It has also been submitted that on the basis of deposition of P.W.1-Sachin Kumar, P.W.2-Dr. Sanjeev Kumar, P.W.-3 Smt. Urmila Devi and P.W-4.-Kaleshwar there was sufficient evidence to summon the opposite party Nos.2 to 4, namely, Mohit Mandal, Krishna Mandal and Sheela Devi under Section 319 Cr.P.C. for trial with charge-sheeted accused, namely, Khudiram. It has also been submitted that impugned order is based on surmises and conjectures and is against the perverse and against the evidence on record and same may be set-aside.

4. Per contra, learned A.G.A. for the State submitted that trial Court has passed reasoned order after discussing the deposition of P.W.1 to 4 and considering the other documentary evidence. There is no illegality or irregularity in the impugned order, hence, no interference in the impugned order is warranted.

5. Heard Sri Ankit Agarwal, learned counsel for the revisionist and Sri Alok Sharma, learned A.G.A. for the State.

6. The brief facts of the case is that First Information Report was lodged on the application of the revisionist, under Section 156 (3) Cr.P.C. with the averments that his son, namely, Manoj Kumar, who is aged about 24 years running a grocery shop. Co-accused, namely, Khudiram, who was of criminal nature, used to extract money from Manoj Kumar for running the shop in the area and his relatives, who are brothers-in-law and sister-in-law, namely, Mohit Mandal, Krishna Mandal and Sheela used to take free commodities from the shop of deceased Manoj Kumar and on being asked for payment of the commodities, they threatened him to defame his reputation. On 22.10.2016 at about 5:00 P.M., sister-in-law of co-accused-Khudiram entered into the shop of deceased Manoj Kumar and closed the shutter and thereafter, son of the revisionist was forced to drink intoxicating substance administered by co-accused Khudiram, therefore, he became unconscious. Co-accused- Khudiram started shouting in front of his shop that son of the revisionist has closed his sister-in-law in his shop and trying to outrage her modesty. On being conscious, son of the revisionist somehow came out through drain from behind the shop. Meanwhile, Khudiram, Mohit Mandal, Krishan Mandal with common intention entered into the house of revisionist/informant and made false allegation that his son was making indecent gesture with Sheela Kumari and they started beating him. Upon hearing the noise, Manju, Geeta and some other person of the locality reached there and saved them, then accused persons ran away from the place of occurrence after giving threat. On the same day at about 7:00 P.M., son of the revisionist committed suicide by hanging due to anguish of being falsely defamed by the accused persons. The suicide note was recovered, in which, accused persons were made responsible for his abetment to commit suicide. In this regard, revisionist had given application to the concerned Police Station, but no action was taken.

7. Before examining the merits of the present case, the ambit, scope and power of the Sessions Court under Sections 397 as well as 319 Cr.P.C. should be discussed and ascertained.

8. The Hon'ble Apex Court in Amit Kapoor Vs. Ramesh Chander and Another, (2012) 9 SCC 460 in paragraph nos.12 and 13 of its judgement has narrated the scope of revision by the High Court u/s 397 Cr.P.C. which is as follows :

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."

9. In paragraph nos.17 and 19 of the aforesaid judgement, the Hon'ble Apex Court has narrated that before framing a charge, what documents should be considered by the trial court. It has also provided about the extent of evidence required for framing of a charge. In paragraph no.20 of the aforesaid judgement, the Apex Court has compared the power and extent of jurisdiction of the High Court u/s 397 Cr.P.C. and Section 482 Cr.P.C. which is given hereunder :

"20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused."

10. The Hon'ble Apex Court in para 117.3 and 117.4 in the case of Hardeep Singh vs. State of Punjab; (2014) 3 SCC 92 has explained the meaning of word 'evidence' as used under Section 319 Cr.P.C.. The relevant paragraphs of the judgement reads as under:-

"117.3. In view of the above position the word "evidence" in Section 319CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question (ii)--Whether the word "evidence" used in Section 319(1)CrPC 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?Answer

117.4. Considering the fact that under Section 319CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4)CrPC 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."

11. The Hon'ble Apex Court in para 117.5 of the case of Hardeep Singh (supra) has also explained the nature of satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused. The relevant paragraph of the judgement reads as under:-

"117.5. Though under Section 319(4)(b)CrPC 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 319CrPC 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."

12. The scope and ambit of Section 319 Cr.P.C. has been well-settled by the pronouncement of Constitution Bench of the Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 and paras 105 and 106 which are relevant for the purpose are reproduced hereunder :

"105. 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 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 Cr.P.C., 1973. In Section 319 Cr.P.C., 1973, 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 Cr.P.C., 1973 to form any opinion as to the guilt of the accused."

13. In S. Mohammad Ispahani Vs. Yogendra Chandak (2017) 16 SCC 226, this Court has observed and held as under :

"35.  It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 of the Cr.P.C. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."

14. In the case of Rajesh Vs. State of Haryana (2019) 6 SCC 368, after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinabove, this Court has further observed and  held that 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 F.I.R. but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 Cr.P.c. and even those persons named in the F.I.R. but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.

15. The Hon'ble Apex Court in the case of Yashodhan Singh and others vs. State of Uttar Pradesh and Another; (2023) 9 SCC 108 has explained the law purported by the Hon'ble Apex Court in the case of Hardeep Singh (supra) regarding the evidence required the satisfaction of the Court for summoning a person under Section 319 Cr.P.C. The paragraph Nos. 22.6, 22.7 and 22.8 which are relevant for the purpose are reproduced hereunder :

"22.6. It was also observed by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that apart from evidence in the strict legal sense recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319CrPC. Holding that the expression "evidence" must be given a broad meaning, it was observed that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. Such material would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have been suppressed or had escaped the notice of the court. Therefore, any material brought before the court even prior to the trial can be read within the meaning of the expression "evidence" for the purpose of Section 319CrPC. While considering the evidence that emanates during the trial, it was observed by this Court that evidence recorded by way of examination-in-chief and which is untested by cross-examination is nevertheless evidence which can be considered by the court for the exercise of power under Section 319CrPC so long as, it would appear to the court that some other person who is not facing the trial, may also have been involved in the offence.

22.7. Further, Section 319CrPC also uses the words "such person could be tried", which means not to have a mini-trial at the stage of Section 319CrPC by having examination and cross-examination and thereafter coming to a prima facie conclusion on the overt act of such person sought to be added. Such a mini-trial will affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all. As under Section 319(4)CrPC, such a person has the right to cross-examine the prosecution witnesses and examine the defence witnesses and advance his arguments. It was further observed that the power under Section 319CrPC can be exercised even after completion of examination-in-chief and the court does not have to wait till the said evidence is tested on cross-examination, for 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 persons, not facing the trial in the offence.

22.8. 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. Therefore, such satisfaction is sine qua non for exercise of power under Section 319CrPC. Ultimately, the exercise of power is for the trial of such persons summoned together with the accused already on trial and not for conviction with the accused. Therefore, at that stage, the court need not form any definite opinion as to the guilt of the accused."

16. The trial Court has discussed the evidence on record and given reasons arriving at the conclusion, which are as follows:-

" The inquest of the dead body was conducted on 22.10.2016 at 21:40 Hrs in presence of Pawan Kumar, Kaleshwar, Rambabu, Suneel Kumar and Satish Kumar, wherein they have opined that the death of Manoj Kumar was due to hanging inside the room.

The postmortem reveals Lacerated Mark 28 cm 4cm below right ear and 7 cm below from chin and 7 cm below from left ear; gap 11 cm. In the opinion, the death was asphyxia due to antemortem hanging.

In the present matter Sachin Kumar the scribe of chik FIR has deposed as P.W.1 that on the basis of order dated 09.03.2017 of Chief Judicial Magistrate on application under Section 156 (3) Cr.P.C. the FIR has been registered on 19.03.2017 on the basis of which the GD has been entered.

P.W.2, Dr. Sanjeev Kumar has stated that he has conducted the postmortem and found that the death has been caused due to hanging. During his cross-examination he has stated that while conducting postmortem he did not found any traces that the deceased was in influence of any intoxicant.

P.W.3, Smt. Urmila Devi, mother of the deceased has stated that Krishna Mondal, Mohit Mondal brothers of Sheela have accused her son of having illicit relations with Sheela and called the police when they found Sheela Devi in the shop with shutter down. It is further stated that the accused came and ask her son to marry Sheela.

P.W.4, Kaleshwar, father of the deceased has stated that he was not at the place of incident and went to AIIMS for his medicine. He further stated that the constable has asked him to call his son otherwise they will register the FIR against him.

P.W.5 Pawan Kumar, brother of the deceased has stated that the accused have falsely targeted the deceased in the garb of free grocery.

The witnesses of fact have not deposed in regard to the positive assertion on instigation against the proposed accused but have only stated that the accused have asked the deceased to marry Sheela for having found from the shop of deceased, who was already married. So far as taking of free grocery is concerned , the same is stated differently, as P.W.3 stated it as of Rs.80,000/- and according to P.W.5, it was Rs.20,000/-"

17. From the perusal of the aforesaid reasons given by the trial Court in the impugned order, the statements of prosecution witnesses on record as well as law laid down by the Hon'ble Apex Court in the aforesaid decisions, it appears that trial Court has not committed any illegality or irregularity in arising at the conclusion that there is no sufficient ground to summon the opposite party Nos.2 to 4 for trial with the co-accused Khudiram. Hence, I do not find any merit in the revision which is liable to be dismissed and is hereby dismissed accordingly.

Order Date :- 01.03.2024

Amit