Uttarakhand High Court

Vijay Alias Monu And Another ... vs State Of Uttarakhand on 2 January, 2023

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


            Criminal Revision No. 501 of 2022

Vijay alias Monu and another                     ...........Revisionists

                                  Vs.

State of Uttarakhand                          ............ Respondent

Mr. Milind Raj, Advocate for the revisionists.
Mr. V.S. Rathore, A.G.A. for the State of Uttarakhand.



                            JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the

order dated 04.08.2022, passed in Sessions Trial No.70

of 2022, State vs. Yashvir alias Bobby, by the court of

Additional Sessions Judge, Laksar, District Haridwar. By

which, the revisionists have been summoned under

Section 319 of the Code of Criminal Procedure, 1973 (for

short, "the Code").

2. Heard learned counsel for the parties and

perused the record.

3. Facts necessary to appreciate the

controversy briefly stated are as follows. Deceased Soni

was married to Yashvir alias Bobby, who was younger

brother of the revisionist no.1 Vijay alias Monu and son

of revisionist no.2 Vimla alias Savita.

4. According to the FIR, after marriage the

revisionists and the co-accused harassed and tortured

deceased Soni for and in connection with the additional

demand of dowry. Finally on 24.09.2021, deceased died.

An FIR was lodged by the father of the deceased. After

investigation, charge-sheet was submitted against co-

accused Yashvir alias Bobby, who happened to be the

husband of the deceased. During trial, statement of the

informant PW1 Madan Singh was recorded. Thereafter,

an application under Section 319 of the Code was filed

by PW1 Madan Singh for summoning the revisionists, as

well. This application under Section 319 of the Code has

been allowed by the impugned order.

5. Learned counsel for the revisionists would

submit that PW1 Madan Singh during investigation has

not levelled any allegations for demand of dowry against

the revisionists. The revisionists were named in the FIR

but they were exonerated during investigation. It is

argued that the order of summoning is bad in the eyes of

law.

6. On the other hand, learned State counsel

would submit that there is no difference in the statement

of PW1 Madan Singh given during investigation or given

at the trial.

7. Section 319 of the Code empowers the

court to summon any person to face trial along with the

existing accused, if from the evidence it appears that he

has also committed any such offence, for which, he may

be tried along with the existing accused. Section 319 of

the Code is as hereunder:-

"319. Power to proceed against other persons appearing to be guilty of offence.--(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then--

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

8. Section 319 of the Code given discretion to

the court in the matters of summoning some persons to

face trial along with the existing accused. What would be

the guiding factors?

9. While summoning an accused initially, a

prima facie case is required to be made out. If there are

great doubts that some person has committed an offence,

it is very well said that there is a prima facie case made out

against such person. Summoning of a person under

Section 319 of the Code is a stage, which is beyond initial

summoning of the existing accused. This issue was

discussed by the Hon'ble Supreme Court in the case of

Hardeep Singh vs. State of Punjab and others, (2014)3

SCC 92, in which, one of the questions i.e. question no.4

was with regard to, as to what is the degree of satisfaction

required for invoking the power under Section 319 of the

Code.

10. In fact, law does not make it obligatory on

the court to summon any person, whose name is

revealed during evidence by any witness without

scrutinizing such statement. The court has to weigh the

evidence before summoning a person under Section 319

of the Code and while weighing that material, a different

set of satisfaction is required to be arrived at. While

answering the question no.4 in the case of Hardeep

Singh (supra), the Hon'ble Supreme Court in para 106 of

the judgment recorded the conclusion as hereunder:-

"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)

11. It may also be noted that, in fact, this

satisfaction was also replied by the Hon'ble Supreme

Court in para 117.5 of the judgment as hereunder:-

"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 319 CrPC 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 principle of law as laid down by the

Hon'ble Supreme Court in the case of Hardeep Singh

(supra) makes it abundantly clear that fresh summoning

of an accused will result in delay of trial. Therefore, the

degree of satisfaction of summoning the accused

(original and subsequent) has to be different. The level of

satisfaction should be higher than the initial summoning

of an accused.

13. In the impugned judgment, reference has

been made to the judgment in the case of Sartaj Singh

vs. State of Haryana and another, (2021)5 SCC 337. In

the case of Sartar Singh (supra), the Hon'ble Supreme

Court, in fact, referred to the judgment in the case of

Hardeep Singh (supra). The question of law has, in fact,

settled in the case of Hardeep Singh (supra).

14. The impugned order cannot be upheld for

the following reasons:-

(i) The court below did not evaluate the

evidence to arrive at a satisfaction that there is

much stronger evidence than mere probability of

complicity of the revisionists in the offence. The

degree of satisfaction has not been recorded by the

court below while passing the impugned order and;