Pinku @ Mukesh Awasthi vs State Of U.P. And Another
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Allahabad High Court

Pinku @ Mukesh Awasthi vs State Of U.P. And Another on 17 March, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


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Neutral Citation No. - 2025:AHC-LKO:15669
 
Court No. - 12
 

 
Case :- CRIMINAL REVISION No. - 434 of 2016
 

 
Revisionist :- Pinku @ Mukesh Awasthi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Alok Srivastava,Mohammad Salim Khan,Narendra Gupta
 
Counsel for Opposite Party :- Govt. Advocate,Rakesh Kumar Tripathi
 

 
Hon'ble Alok Mathur,J.
 

1. Heard Shri Narendra Gupta, learned counsel appearing on behalf of the revisionist and Shri Rakesh Kumar Tripathi, learned A.G.A. appearing on behalf of the State. Though, Vakalatnama has been filed on behalf of the complainant but no one has appeared on his behalf.

2. The grievance of the revisionist is the present criminal revision is with regard to the impugned order dated 08.02.2016 passed by Additional Sessions Judge, Court No.11, Sitapur in Sessions Trial No.464 of 2006: State versus Ram Dularey and others, arising out of Case Crime No.107-A of 2005, under Sections 148, 504, 307/149 IPC, Police Station Maholi, District Sitapur.

3. It is submitted by the counsel for the revisionist that with regard to the incident occurring on 26.03.2005, two FIRs have been lodged. The first FIR has been numbered Case Crime No.107 of 2005 was lodged under Sections 147, 148, 149, 307, 504, 506 IPC, wherein the complainant was one Parsuram, who had alleged that his family members had gone to a temple to pay their obeisance, where at 4:00 P.M. one Vinod carrying his licensed gun belonging to his father made certain remarks to his son Kallu and other persons accompanying his son, namely, Chhotkanne, who was also there at an altercation ensued and only on intervention of the priest of the temple the peace was restored and the parties went home. It is stated that shortly thereafter at around 5:00 P.M. with regard to the same incidence which had occurred sometimes prior Vinod came with his licensed gun alongwith Prem Shanker Awasthi, Ram Asrey, Umesh, Naresh, Mukesh all of whom were carrying unlicensed fire arms started firing indiscriminately towards the house of Ramadhar in which Kallu sustained gunshot injuries and died on the spot. His other sons, namely, Sunil and Chunna also received gunshot injuries. It was stated that number of villagers were witness to the said incident.

4. It has further been stated with regard to the same incident that in Case Crime No.107 of 2005, the petitioner was not named while in the second FIR, which was also lodged on the same day by Prem Shankar Awasthi, was numbered as Case Crime No.107-A of 2005, under Sections 147, 148, 149, 307, 504 IPC, the petitioner was also named as one of the persons accompanying the group which had fired where the incident remains the same but the villagers have also named the revisionist as one of the accused. It has been stated that the police had thoroughly investigated the said matter and during investigation, it was found that the revisionist was not present on the spot inasmuch as the statement of one Rakesh Kumar, Sobaran Lal, Shiv Shanker, Ahbaran Lal, Omkar stated before the investigating officer that on 26.03.2005, the revisionist was present with them near his shop and consequently, an alibi was created with regard to is not being present at the place of incident and accordingly, while filing the charge sheet his name was not included in the list of accused. It has further been submitted that it is during the trial that the examination-in-chief of Prem Shanker was recorded where he reiterated the fact that the revisionist was also present on the spot on the date and time of the said incident and there is no dispute with regard to the fact that Prem Shanker had not mentioned as to who fired upon Kallu and gave him the fatal injury. It is merely on the basis of the examination-in-chief of Prem Shankar followed by an application under Section 319 of Cr.P.C., the impugned order had been passed and the revisionist is also been tried as accused alongwith the others in the aforesaid case. Perusal of the impugned order dated 08.02.2016 passed by Additional Sessions Judge, Court No.11, Sitapur would indicate that the Court has narrated the aforesaid facts while deciding the said case Anoop one of the accused has also filed his objections stating that only on the basis of the examination-in-chief an application under Section 319 of Cr.P.C. cannot be allowed apart from which there is no cogent evidence available on record from which it can be categorically stated that the revisionist can be impleaded as an accused in the said case. Merely on the basis of the fact that there were chances of implications of the revisionist as an accused the application under Section 319 has been allowed and the revisionist has been summoned.

5. Counsel for the revisionist has submitted that for exercising power under Section 319 of Cr.P.C. there has to be sufficient material so as to join the person against whom evidence is available as an accused alongwith the others and the stronger evidence than mere probability of his complicity is required to be adduced rather than a vague statement made during examination-in-chief. He submits that a perusal of the statement of Prem Shanker would indicate that merely a passing reference has been made to the revisionist being present at the site of occurrence which is the only material available on record for allowing the application under Section 319 of Cr.P.C. He submits that this aspect of the matter has been duly considered by the Supreme Court in the case of Brijendra Singh and others versus State of Rajasthan, (2017) 7 SCC 706, where the Supreme Court has approved the dictum of another judgment of the Supreme Court in the case of Hardeep Singh versus State of Punjab, (2014) 3 SCC 92, where it has been stated that the provisions of Section 319 of Cr.P.C. cannot be invoked lightly and the material on record should be sufficient and the evidence on record has to be more than what is collected during evidence. He has further submitted that the trial court should have waited for the cross-examination of the witness before invoking its power under Section 319 of Cr.P.C. and also they should have waited till the police officer who had investigated the matter was duly examined.

6. He has further submitted that the trial court should have waited for the cross-examination of the police officer, who had investigated the matter and exculpated the revisionist from the array of the accused before proceeding to exercise its power under Section 319 of Cr.P.C.

7. Learned A.G.A., on the other hand, has opposed the revision and submitted that even in the FIR the revisionist was named as an accused and even during the trial the complicity of the accused came forth in the testimony of Prem Shanker and accordingly, supported the impugned order.

8. I have heard the rival contentions and perused the record. The issue in the present case is as to whether there was sufficient material before the trial court to invoke the provisions of Section 319 of Cr.P.C. The law with regard to exercise of power under Section 319 of Cr.P.C. have been duly considered by the Supreme Court in the case of Brijendra Singh (supra), where they affirmed the law laid down by the previous judgment of the Supreme Court in the case of Hardeep Singh (supra), the relevant portion is quoted here-in-below for ready reference:-

"9. The powers of the Court to proceed under Section 319 CrPC even against those persons who are not arraigned as accused, cannot be disputed. This provision is meant to achieve the objective that real culprit should not get away unpunished. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, explained the aforesaid purpose behind this provision in the following manner:

"8.The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under Cr indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished.

* * *

12. Section 319 CrPC springs out of the doctrinejudex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.

13.It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?

* * *

19.The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."

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 Sections 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) CrPC 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 CrPC 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.

12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh's case and answered in the following manner:

"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 [(2014) 3 SCC 321] , 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.

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."

13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some "evidence" against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The "evidence" herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."

9. A perusal of the aforesaid judgment indicates that though even at the stage of examination-in-chief without cross-examination the power under Section 319 of Cr.P.C. can be exercised but undoubtedly, the reliable and cogent material which should be emerging from the statement should be a stronger evidence than mere probability of his complicity. The test which has to advice is one which is more than prima facie a case as exercised at the time of framing of charge but short of satisfaction to the extent that the evidence is unrebutted would lead to conviction. On the touchstone of the aforesaid judgments, I find that the exercise of power by the trial court was not inconformity with the law laid down by the Supreme Court. Even in the examination-in-chief it was a mere occurrence of the name of the revisionist which was taken alongwith the other accused who had participated at the offence resulting into FIRs which were lodged on 26.03.2005. There is no further detail of involvement of the revisionist nor any mention of his further participation in the said crime and accordingly, I find that the material on the basis of which the trial court had allowed the application, falls short of the test laid down by the Supreme Court in the aforesaid judgments. I am also of the view that once during the investigation number of witnesses were examined some of whom had stated that the revisionist was not present at the scene of crime but was with them elsewhere and, therefore, in these peculiar circumstances the trial court should have waited till examination of the investigating officer was complete which would have lead to a more cogent and reliable piece of material necessitating invocation of powers under Section 319 of Cr.P.C. Accordingly, merely naming the revisionist without giving any further details of his participation in the alleged offence does not show that there was sufficient material for invocation of power under Section 319 Cr.P.C. In the light of the above, the revision is allowed, impugned order dated 08.02.2016 is set aside.

10. It is made clear that if during trial any other further evidence is available pointing towards complicity of the accused it may in the discretion of trial court may exercise his power in accordance with law.

[Alok Mathur,J.]

Order Date :- 17.3.2025

Mohd. Sharif