Madhya Pradesh High Court
Lakhan vs The State Of Madhya Pradesh on 8 December, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGHCOURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
CRIMINAL REVISION No.3484 OF 2023
BETWEEN:-
1.LAKHAN S/O SHRI SHOBHARAM, AGED 63 YEARS
2. SURESH KUMAR S/O SHRI PRATAP SINGH, AGED 48
YEARS
3. SHIVSHANKAR S/O SHRI PRATAP SINGH, AGED 51
YEARS
4. CHOTU @ DEVENDRA S/O SHRI LAKHAN RAJPUT
AGED 35 YEARS
5. DUSHYANT S/O SHRI KESHAV RAJPUT, AGED 34
YEARS, ALL R/O VILLAGE- BICHHODNA P.S. BHANDER,
DISTRICT DATIA (MADHYA PRADESH)
.....PETITIONERS
(SHRI ATUL GUPTA- ADVOCATE FOR PETITIONERS)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
THE
S
STATION BHANDER, DISTRICT DATIA (MADHYA
PRADESH)
.....RESPONDENT
(SHRI V.P.S TOMAR- PANEL LAWYER FOR RESPONDENT- STATE )
(SHRI VIVEK KUMAR MISHRA- ADVOCATE FOR COMPLAINANT)
--------------------------------------------------------------------------------------
Reserved on : 13.09.2023
Pronounced on : 08.12.2023
----------------------------------------------------------------------------------------
2
This revision having been heard and reserved for order, coming on
for pronouncement this day, Justice Sanjeev S Kalgaonkar pronounced
the following:
ORDER
This revision petition under Section 397 read with Section 401 of
CrPC is filed assailing the order dated 25.07.2023 passed by Third
Additional Judge to the Court of First Additional Sessions Judge, Datia
(M.P.) whereby the application under Section 319 of CrPC preferred by the
prosecution was allowed and non-bailable warrants have been issued
against the revision petitioners.
(2) The petition inter alia states as under:-
(i) As per the case of prosecution, Dehati Nalishi was lodged on
the spot of incident by Vikram Singh on 20.10.2020 at 8:50 A.M. with
U.S.Mandaliya, Inspector of Police Station Bhander, District Datia
against Lakhan, Chhotu, Suresh, Shivshankar, Nyare @ Raghvendra,
Rinku @ Devkinandan, Dushyant and three others. It was alleged that
in the night of 19.10.2020, Ramnarayan after threshing the crop of
groundnut, kept it in a tractor-trolley. He was sleeping on the trolley
with crop of groundnut. Vikram along with his nephew Yogendra were
going to the field around 4:00 A.M.. As they reached near tractor-
trolley, they heard shouts of Ramnarayan. They saw Shivshankar,
Rinku, Dushyant and Lakhan were holding legs and hands of
Ramnarayan. Chhotu and Nyare assaulted Ramnarayan with axe.
Suresh also assaulted Ramnarayan. Ramnarayan sustained multiple
injuries and died on spot. On this information, Dehati Nalishi for
offence punishable under Sections 147, 148, 149 and 302 of IPC was
registered against aforementioned 7 named accused and three
unnamed offenders. Police Station, Bhander registered FIR at Crime
No.265 of 2020. Body of Ramnarayan was forwarded for postmortem
examination. The Medical Officer opined that Ramnarayan has died
due to excessive hemorrhage caused by multiple injuries. Statements
of witnesses have been recorded.
(ii) During the course of investigation, Investigation Officer found
that revision petitioners Lakhan, Suresh, Shivshankar, Chhotu and
Dushyant were not involved in the alleged incident, therefore, a
closure report against the revision petitioners was proposed. On
completion of investigation, Final Report was filed on 26.01.2021
against accused Nyare @ Raghvendra and Rinku @ Vinod Rajput
keeping investigation pending against three unknown offenders.
(iii) The complainant, Vikram Singh Lodhi, filed application under
Section 190 of CrPC requesting cognizance against the revision
petitioners. The application was rejected vide order dated 05.02.2021
by learned JMFC, Bhander, District Datia. Complainant preferred a
criminal revision assailing the order dated 05.02.2021, but the same
was rejected vide order dated 11.10.2021 passed by learned IInd
Additional Judge to the Court of First Additional Sessions Judge,
Datia. Thereafter, Vikram Singh Lodhi preferred petition under
Section 482 of CrPC before this Court, the same was dismissed by
Coordinate Bench of this Court vide order dated 28.03.2023 passed in
MCRC No.51924 of 2021. Learned Judicial Magistrate First Class
committed the case to the Sessions Court. The charges were framed
against the accused named in the Final Report and the trial
commenced. During the course of trial, Vikram Singh Lodhi (PW-3),
Rajaram Lodhi (PW-2) and Yogendra Singhg Lodhi (PW-10) were
examined alongwith other witnesses.
(iv) The Prosecutor filed application under Section 319 of CrPC
stating that Vikram (PW-3) in his evidence has leveled specific
allegations against the revision petitioners, therefore, cognizance be
taken against them. Learned trial Court allowed the application under
Section 319 of CrPC and took cognizance of offence punishable
under section 302 read with sec. 34 of IPC against revision petitioners
and further, issued non-bailable warrants against revision petitioners
vide impugned order dated 25.07.2023.
(3) Feeling aggrieved by the impugned order, this revision petition is
filed assailing the order on following grounds:-
(i) Learned trial Court committed an error of law as well as facts
in allowing the application under Section 319 of CrPC in very casual
and cavalier manner.
(ii) Learned Trial Court ignored the fact that similar application
under Section 190 of CrPC was dismissed by the Trial Court and the
revision was also dismissed in view of filing of closure report against
the revision petitioners, therefore, the power under Section 319 of
CrPC should not have been exercised by the learned Trial Court.
(iii) Learned trial Court was duty bound to look into the closure
report, which was filed by the investigating agency after detailed
investigation. It was found during investigation that the revision
petitioners were not present on the place of incident at the time of
alleged offence. There was no evidence to suggest that revision
petitioners were involved in the commission of alleged offence.
(iv) The learned Trial Court without appreciating the closure report
mechanically allowed the application under Section 319 of CrPC on
the basis of evidence of Vikram Singh (PW-3). All the allegations
made by him in evidence were also contained in his statement
recorded under Section 161 of CrPC.
(v) No opportunity of hearing was given to the revision petitioners
on application under Section 319 of CrPC before impleading them as
accused.
(vi) Learned Public Prosecutor, on the one hand, gave consent for
filing of closure report against revision petitioners and on the other
hand, on same allegations, filed an application under Section 319 of
CrPC for impleading the revision petitioners as accused in the trial.
(vii) Learned Trial Court ignored settled position of law that while
invoking the power under Section 319 of CrPC, degree of satisfaction
should be more than prima facie case as exercised at the time of
framing of charge. No such satisfaction was recorded by the learned
trial Court.
On such grounds, it is requested that impugned order dated 25.07.2023
be set aside and the non-bailable warrants issued against the petitioners be
also set aside.
(4) Learned counsel for the revision petitioners relying on Para No.9 of
the judgment of Supreme Court in case of Jogendra Yadav vs. State of
Bihar (2015) 9 SCC 244, contends that an opportunity of hearing should
have been given to the revision petitioners before proceeding under Section
319 of CrPC. The ratio of judgment in Jogendra Yadav (supra) was
considered by the Supreme Court in case of Yashodhan Singh and Others
Vs. State of U.P. judgment dated 18.07.2023 passed in Criminal Appeal
No.2186 of 2023 (2023 INSC 652), wherein it was held that opportunity of
being heard is not a mandatory requirement or a pre-condition at the time of
summoning a person under Section 319 of CrPC. The principle of hearing a
person, who is summoned cannot be read into Section 319 of CrPC, such a
procedure is not at all contemplated therein. Thus, the contention that the
impugned order is illegal for the reason that no opportunity of hearing was
provided to the revision petitioners on application under Section 319 of
CrPC, is not acceptable.
(5) Learned Counsel appearing for Complainant relying on the judgment
of Supreme Court in case of Hardeep Singh vs. State of Punjab and
Others, (2014) 3 SCC 92 (Constitution Bench), submits that the evidence
for the purpose of exercising power under Section 319 of CrPC during the
course of trial includes the statements of witnesses in examination-in-chief
and the material available on record on the basis of which, the Court can
come to a prima facie opinion about complicity of other person and
necessitate to bring him to face trial. Learned Counsel contends that in the
matter in hand, testimony of Vikaram Singh (PW3), Yogendra Kumar
(PW10) and Rajaram (PW2) has been tested on cross-examination and
learned Trial Court on consideration of their evidence, directed cognizance
against revision petitioners. Therefore, the impugned order does not suffer
from any illegality or impropriety.
(6) Per contra, learned Counsel for revision petitioners relying on the
judgment of Supreme Court in case of Brijendra Singh vs. State of
Rajasthan (2017) 7 SCC 706, submits that the 'evidence' means material
that is produced before the Court during trial. The material or evidence
collected by Investigation Officer at the stage of enquiry can be utilised for
corroboration to support evidence recorded by the Court to invoke power
under Section 319 of CrPC. Learned counsel further contends that only
where strong and cogent evidence occurs against a person from the evidence
before the Court such power should be exercised. It is not to be exercised in
a casual or a cavalier manner. The prima facie opinion requires stronger
evidence than mere probability of the complicity. Learned counsel further
submits that the facts of case in hand and that of Brijendra Singh (supra)
are almost identical. In case of Brijendra Singh (supra), it was held that
three appellants were involved in the incident of inflicting injuries with
intention to kill the complainant. Therefore, FIR for offence punishable
under Sections 147, 148, 149, 323, 448 and 302 read with Section 149 of
IPC was registered against them. During investigation, the appellants were
interrogated and they stated that at the time of incident they were in Jaipur.
The Investigating Officer considered the evidence with regard to plea of
alibi by the appellants and did not find reliable evidence against the
appellants and, therefore, did not file any challan against them. The trial
Court without any challan being submitted by police, directed cognizance
against the appellants. The order was assailed in revision before the High
Court and the High Court set aisde the order of Trial Court. Thereafter, on
the basis of statements of witnesses during trial, application under Section
319 of CrPC was allowed.
(7) Learned Counsel referring to para 12, 13, 14 and 15 of the judgment in
case of Brijendra Singh (supra), contends that learned Trial Court
committed an error in relying upon the statements of Vikaram Singh (PW3),
Yogendra Kumar (PW10) and Rajaram (PW2) to direct cognizance against
revision petitioners as their statements before the Trial Court are merely
reproduction of their statements recorded under Section 161 of CrPC.
(8) The Supreme Court in case of Brijendra Singh (supra) observed as
under:-
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: (SCC pp. 135 & 138, paras 95 & 105-106)
"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.
xx xx xx
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. (emphasis supplied)
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 warrants. 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 chargesheet 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.
14. When we translate the aforesaid principles with their application to the
facts of this case, we gather an impression that the trial court acted in a casual
and cavalier manner in passing the summoning order against the appellants.
The appellants were named in the FIR. Investigation was carried out by the
police. On the basis of material collected during investigation, which has been
referred to by us above, the IO found that these appellants were in Jaipur city
when the incident took place in Kanaur, at a distance of 175 kms. The
complainant and others who supported the version in the FIR regarding
alleged presence of the appellants at the place of incident had also made
statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the
same, the police investigation revealed that the statements of these persons
regarding the presence of the appellants at the place of occurrence was
doubtful and did not inspire confidence, in view of the documentary and other
evidence collected during the investigation, which depicted another story and
clinchingly showed that appellants plea of alibi was correct.
15. This record was before the trial court. Notwithstanding the same, the
trial court went by the deposition of complainant and some other persons in
their examination-in-chief, with no other material to support their so- called
verbal/ocular version. 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 IO 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. appellants) complicity has
come on record. There is no satisfaction of this nature. Even if we presume
that the trial court was not apprised of the same at the time when it passed the
order (as the appellants were not on the scene at that time), what is more
troubling is that even when this material on record was specifically brought to
the notice of the High Court in the Revision Petition filed by the appellants,
the High Court too blissfully ignored the said material. Except reproducing
the discussion contained in the order of the trial court and expressing
agreement therewith, nothing more has been done. Such orders cannot stand
judicial scrutiny.''
(9) In the light of aforementioned proposition of law, the fact situation of
the case in hand is examined.
(10) Vikaram Singh and Yogendra Kumar claiming to be eye-witnesses to
the incident, in their statements recorded under Section 161 of CrPC, alleged
that on 20.10.2020 around 04:00-05:00 in the morning, they were going to
the agricultural field of Pramod Pujari. As they reached near the agricultural
field of Pramod Pujari, they heard shout of Ramnarayan. They saw revision
petitioners along with other accused near tractor- trolley. Shivshankar Lodhi,
Rinku Lodhi, Dushyant Lodhi and Lakhan Lodhi and three other persons
were holding hands and legs of Ramnarayan. Chhotu assaulted Ramnarayan
with fawada, Nyare gave blow with axe to Ramnarayan and Suresh
assaulted Ramnarayan with danda on his head. Thereafter, all accused fled
away. Ramnarayan died on spot. Rajaram had stated that around 03:00 am in
the morning, Lakhan, Chhotu, Suresh, Shivshankar, Nyare alias
Raghvendra, Rinku, Dushyant and two- three other persons were passing
through his agricultural field. They were talking that Ramnarayan would be
sleeping alone at the field of Pramod Pujari. Today, they will kill him. He
identified voice of Nyare. Vikaram Singh (PW3), Yogendra Kumar (PW10)
and Rajaram (PW2) deposed before the trial Court on same lines. Their
deposition before the trial Court is nothing more than reproduction of
statement recorded under section 161 of CrPC. Learned Trial Court
considering their statements recorded during trial proceeded to take
cognizance against the revision petitioners.
(11) The Case Diary reveals that during the course of investigation, the
Investigation Officer recorded statements of Triveni, Ashish Rajput, Ajad
Rajput, Kaushal Kishore Rajput, Manoj Rajput, Deshraj Pal, Sohan Singh,
Arvind Pal, Charan Singh, Brijpal Raput, Naresh Rajput and Devishankar
with regard to plea of alibi and taken affidavits of these witnesses. Further,
call details and tower location of revision petitioner Chhotu alias Devendra
was also considered. On the basis of investigation, the Investigation Officer
proposed filing of closure report to Superintendent of Police, Datia. The
Superintendent of Police, Datia directed separation of investigation against
Shivshankar, Chhotu, Dushyant, Suresh and Lakhan Rajput and filing of
Final Report against Rinku Rajput and Nyare. Accordingly, Final Report
was submitted against accused Nyare alias Raghvendra and Rinku Rajput
for offence punishable under Section 302 read with Section 34 of IPC. The
learned trial Court, discarded this part of investigation inter alia observing
that the investigation with regard to exonerating the revision petitioners was
conducted without jurisdiction merely on the basis of affidavits and CDR.
Learned trial Court gave no reasons to arrive at this conclusion. It goes to
show that learned Trial Court failed to apply judicial mind to the material
available on record with regard to exoneration of revision petitioners in
Final Report submitted after investigation.
(12) Thus, learned Trial Court has relied upon statements of Vikram Singh
(PW3), Yogendra Kumar (PW10) and Rajaram (PW2) to arrive at the
conclusion that complicity of revision petitioners is prima facie made out,
therefore, it would be proper that revision petitioners be tried along with
other accused named in the Final Report. Learned Trial Court discarded
other material available on record in a casual manner without deliberating
upon it.
(13) In view of above discussion, this Court is of the opinion that learned
Trial Court committed an error in proceeding to take cognizance of offence
punishable under Section 302 read with Section 34 of IPC against revision
petitioners merely on the basis of statements of Vikaram Singh (PW3),
Yogendra Kumar (PW10) and Rajaram (PW2) without proper consideration
of material available on record. No incriminating evidence except the
aforementioned statements was available to establish prima-facie
involvement of petitioners in alleged offence. The impugned order suffers
from patent illegality and impropriety in view of the law laid down in case
of Brijendra Singh (supra). Therefore, in exercise of supervisory
jurisdiction under Section 397 read with Sec. 401 of CRPC, the impugned
order dated 25.07.2023 passed by Third Additional Judge to the Court of
First Additional Sessions Judge, Datia (M.P.) is set aside.
With the aforesaid, this revision stands allowed.
(SANJEEV S KALGAONKAR)
JUDGE
Avi/MKB
AVINASH
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BHARGAV
Date: 2023.12.11 15:59:11 +05'30'
