Ram Sagar vs State Of U.P. Thru. Prin. Secy. Home Lko. ...
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Allahabad High Court

Ram Sagar vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 24 March, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:16719
 
Court No. - 12
 

 
Case :- CRIMINAL REVISION No. - 308 of 2025
 

 
Revisionist :- Ram Sagar
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others
 
Counsel for Revisionist :- Aakash Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Alok Mathur,J.
 

1. Heard Shri Aakash Srivastava, learned counsel for revisionist, learned A.G.A. for the State and perused the material available on record.

2. The present criminal revision has been preferred under Section 438/442 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (397/401 Cr.P.C.) against the judgment and order dated 07.01.2025 passed by the learned Additional Sessions Judge, Court No. 7, Unnao in Sessions Trial No. 222 of 2022, arising out of Case Crime No. 356 of 2021, under Sections 498-A & 304-B IPC and Section 3/4 of the Dowry Prohibition Act, Police Station Achalganj, District Unnao whereby application preferred by the revisionist under Section 358 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (319 Cr.P.C.) has been rejected.

3. It has been submitted by learned counsel for revisionist that daughter of the revisionist, namely, Km. Pooja was married with Nitin alias Babu on 13.07.2016. It is further stated that husband Nitin alias Babu, Jeth Ram Narayan, Devar Vipin, Omrani wife of Ram Narayan and Shalini wife of Vipin were demanding dowry from the deceased due to which, they used to assault the deceased. It was further stated that on 28.11.2021 at about 8:00 a.m. devar of the deceased namely, Vipin had informed the revisionist (complainant) that his daughter has committed suicide. Subsequently, an FIR was lodged against all the opposite parties, namely, Nitin alias Babu, Jeth Ram Narayan, Devar Vipin, Omrani wife of Ram Narayan and Shalini wife of Vipin. The investigation was concluded and charge sheet was filed only against Nitin alias Babu, husband of the deceased but all the other -accused persons includingJeth Ram Narayan, Devar Vipin, Omrani wife of Ram Narayan and Shalini wife of Vipin were excluded during the investigation.

4. During the trial, the revisionist who is the complainant of the case was examined as PW-1. On the basis of his statement an application under Section 358 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (319 Cr.P.C.) was filed seeking to issue process against the other family members, who had been excluded by the police during investigation. During trial, in examination-in-chief, revisionist Ram Sagar (PW-1) had deposed before the court that his daughter was done to death on 28.11.2021 by Nitin alias Babu, Jeth Ram Narayan, Devar Vipin, Omrani wife of Ram Narayan and Shalini wife of Vipin on account of the fact that they did not get sufficient dowry.

5. It is noticed that even in the first information report as well as examination-in-chief of the revisionist, vague allegations have been levelled against the persons, who are said to be included as accused during the said trial.

6. The trial court has also considered the material available on record and also material available in the charge sheet, according to which, the husband of the deceased namely, Nitin alias Babu was working in Saudi Arabia and used to send money every month in the account of his wife (deceased) and father-in-law of the deceased used to withdraw the money from the account of his daughter in law (deceased) and give to daughter in law (deceased). Accordingly, there was sufficient material on record even as per the statement of the revisionist (complainant) that there was no interference in the living of the deceased by the other family members, who though were living in the same house and some of them even had separate kitchens.

7. It is in the aforesaid circumstances and material available on record that the trial court did not find sufficient material to allow the application under Section 358 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (319 Cr.P.C.). Though the law with regard to the same is clear as has been dealt by the Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab report in (2014) 3 SCC 92, which reads as under:-

Question (iv)?What is the degree of satisfaction required for invoking the power under Section 319 CrPC?

93. Section 319(1) CrPC empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved". It imparts a lesser degree of probability than proof.

94. In Pyare Lal Bhargava v. State of Rajasthan [AIR 1963 SC 1094 : (1963) 2 Cri LJ 178], a four-Judge Bench of this Court was concerned with the meaning of the word "appear". The Court held that the appropriate meaning of the word "appears" is "seems". It imports a lesser degree of probability than proof. In Ram Singh v. Ram Niwas [(2009) 14 SCC 25 : (2010) 1 SCC (Cri) 1278], a two-Judge Bench of this Court was again required to examine the importance of the word "appear" as appearing in the section. The Court held that for the fulfilment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as the accused in the case.

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 : (2013) 11 Scale 23], 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.

97. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] , this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 CrPC, it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.

98. In Sarabjit Singh v. State of Punjab [(2009) 16 SCC 46 : (2010) 2 SCC (Cri) 141 : AIR 2009 SC 2792], while explaining the scope of Section 319 CrPC, a two-Judge Bench of this Court observed : (SCC pp. 54-55, paras 21-23)

"21. ? For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.

22. ? Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.

23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied."

99. In Brindaban Das v. State of W.B. [(2009) 3 SCC 329 : (2009) 2 SCC (Cri) 79] , a two- Judge Bench of this Court took a similar view observing that :

"25. ? the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 CrPC entails a de novo trial and a large number of witnesses may have been examined and their re- examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity."

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.

96. In Rajendra Singh [Rajendra Singh v. State of U.P., (2007) 7 SCC 378 : (2007) 3 SCC (Cri) 375 : AIR 2007 SC 2786] , the Court observed : (SCC p. 388, para 16)

"16. Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is 'may' and not 'shall'. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression 'appears' indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."

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."

8. Considering the material available on record and also the impugned order dated 07.01.2025 passed by the learned Additional Sessions Judge, Court No. 7, Unnao in Sessions Trial No. 222 of 2022, this Court finds that the trial court has considered the entire material available on record.

9. In light of the above, this Court does not find any sufficient material before the trial court to have summoned the either persons said to be included in the list of accused by the revisionist. Apart from the above, this Court finds that during the investigation, there was sufficient material, which was brought on record, to exclude the other family members of the deceased and even in the statement of the complainant PW-1(revisionist).

10. This Court only finds vague material pertaining to the involvement of the other family members. Accordingly, such material could not be sufficient to invoke the provisions of under Section 358 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (319 Cr.P.C.).

11. For the reasons aforesaid, the present revision is bereft of merits and the same is accordingly, dismissed at this stage.

(Alok Mathur, J.)

Order Date :- 24.3.2025

Virendra