Allahabad High Court
Nipendra vs State Of U.P. And Another on 21 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:91669
Court No. - 77
Case :- CRIMINAL REVISION No. - 3736 of 2023
Revisionist :- Nipendra
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Jai Shanker Malviya
Counsel for Opposite Party :- G.A.,Irfan Chaudhary,Swetashwa Agarwal,Yash Raj Verma
Hon'ble Rajeev Misra,J.
1. Heard Mr. N. I. Jafri, the learned Senior Counsel assisted by Jai Shanker Malviya, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Srijan Pandey, the learned counsel representing opposite party 2.
2. Perused the record.
3. Challenge in this criminal revision is to the judgment and order dated 25.05.2023 passed by Additional District and Sessions Judge, Court No.9, Moradabad in Sessions Trial No. 578 of 2015 (State Vs. Ramveer and others) under Sections 147, 148, 149 and 302 I.P.C., P.S. Civil Lines, District-Moradabad whereby application dated 21.02.2023 under Section 319 Cr.P.C. filed prosecution/first informant/opposite party-2 has been allowed. Consequently, prospective accused i.e. revisionist herein has been summoned by court below to face trial under Sections 147, 148, 149 and 302 I.P.C. in aforementioned Sessions Trial.
4. Mr. N. I. Jafri, the learned senior counsel assisted by Mr. Jai Shanker Malviya, the learned counsel for revisionist submits that order impugned in present criminal revision is manifestly illegal and therefore liable to be set aside by this Court. It is an undisputed fact that revisionist was nominated as a named accused in the F.IR. dated 23.02.2015 giving rise to present criminal revision. However, during course of investigation, the Investigating Officer did not come-across any such material so as to establish the complicity of revisionist in the crime in question. Accordingly, revisionist was exculpated by the Investigation Officer in the police report dated 18.04.2015 submitted by Investigating Officer in terms of Section 173 Cr.P.C. However, irrespective of above, court below simply on the basis of deposition of P.W.-8 Smt. Poonam, P.W.-9 Arjun Singh, P.W.-10 S.I. Chanchal Sirohi, P.W.-11 Yogesh Kumar and P.W.-12, Gajendra Singh, has summoned the present revisionist under Section 319 Cr.P.C.
5. In the submission of learned Senior Counsel, three eye witnesses of occurrence namely Ranveer Singh, Jayveer Singh and Pramod Kumar are yet to depose before court below. He therefore contends that in view of above, court below ought to have deferred the disposal of the application under Section 319 Cr.P.C. filed by prosecution till the statements of aforementioned witnesses were recorded. On the above conspectus, he therefore contends that order impugned order cannot be sustained and is therefore liable to be set aside by this Court.
6. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Srijan Pandey, the learned counsel representing opposite party-2 have vehemently opposed this criminal revision. They submit that the F.I.R. giving rise to present criminal proceedings was registered under Section 149 I.P.C. also. As per the statement of P.W.-8 Smt. Poonam, P.W.-9 Arjun Singh, P.W.-10 S.I. Chanchal Sirohi, P.W.-11 Yogesh Kumar and P.W.-12, Gajendra Singh, the presence of revisionist at the time and place of occurrence is fully established. Referring to the judgement of Supreme Court in Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, the learned counsel representing opposite party-2 submits that once the prescience of the named accused at the time and place of occurrence is established as per the deposition of the prosecution witnesses examined upto this stage then the issue as to whether the prospective accused played any active or passive role in the crime in question becomes redundant. He has then referred to the judgement of this Court in Criminal Revision No. 1909 of 2023 (Dharmveer Vs. State of U.P. and another) decided on 06.05.2024. Paragraph 58 of the aforesaid report is relevant for the controversy involved in present criminal revision. For ready reference paragraph 58 of aforesaid judgement is reproduced herein under:
"58. The correctness of an order, passed by the High Court, setting aside the order of the trial Court allowing the application under section 319 Cr.P.C. again came to be considered in Sandeep Kumar (Supra). The correctness of the order was sought to be examined with reference to the provisions of Section 149 IPC. Court referred to the Five Judges Bench judgment in Hardeep Singh (Supra) and referred to paragraphs 95 to 106 of the same. The Court, thereafter, considered the ingredients of Section 149 and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C. Accordingly, the order of the High Court was set aside."
7. On the above premise, it is thus urged by the learned A.G.A. for State opposite party-1 and the learned counsel representing opposite party-2 that court below while passing the order impugned has neither committed a jurisdictional error nor has it exercised it's jurisdiction with material irregularity so as to vitiate the order impugned and warrant interference by this Court.
8. When confronted with above, the learned senior counsel for revisionist could not overcome the same.
9. Having heard, the learned senior counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party 2 and upon perusal of record, this Court finds that presence of revisionist is established at the time and place of occurrence as per the depositions of P.W.-8 Smt. Poonam, P.W.-9 Arjun Singh, P.W.-10 S.I. Chanchal Sirohi, P.W.-11 Yogesh Kumar and P.W.-12, Gajendra Singh. Therefore, in view of the law laid down in Sandeep Kumar (Supra), no illegality can be said to have committed by court below in passing the order impugned. As such, present criminal revision fails and is liable to be dismissed.
10. It is accordingly dismissed.
Order Date :- 21.5.2024
YK
