Mahant Ramdas Ji vs State Of Uttarakhand & Another
2023 Latest Caselaw 682 UK

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

 Criminal Miscellaneous Application No.2831 of 2019

Mahant Ramdas Ji                                      ......Applicant

                                  Versus


State of Uttarakhand & Another                     .....Respondents

                                 With


     Criminal Miscellaneous Application No.403 of 2020

Ramdharacharya and Others                            ......Applicants

                                  Versus

State of Uttarakhand & Another                     .....Respondents

Mr. Narendra Bali, Advocate for the applicant.
Mr. Sachin Panwar, Brief Holder for the State of Uttarakhand.
Mr. Nikhil Singhal, Advocate for the private respondent.
Hon'ble Sharad Kumar Sharma, J.

The present applicants in the C482 Applications have put a challenge to the order of 14.01.2016, which was passed by the Court of Additional Chief Judicial Magistrate, Haridwar, in Criminal Case No.6456 of 2011, State vs. Manmohan Das and Others, whereby, the learned Trial Court had allowed the application under Section 319 of Cr.P.C. and had summoned the applicants for being cross examined for the offences under Sections 323 and 504 of IPC. The judgment of allowing the application under Section 319 Cr.P.C. was put to challenge in a Criminal Revision No.36 of 2016, the same too has been dismissed by the judgment of 16.08.2019, which is under challenge in C482 No.2831 of 2019.

2. In connected to C482 No.403 of 2020, the challenge which has been given is yet again, is to the order of 14.01.2016 passed by the Court of Additional Chief Judicial

Magistrate, Haridwar in Criminal Case No.6456 of 2011, State vs. Manmohan Das and Others, whereby, the Court has allowed the application under Section 319 Cr.P.C. and the applicant has been thereby summoned and the said order of the learned Trial Court has been affirmed in Criminal Revision No.36 of 2016.

3. The brief facts in both the cases which are common in nature are being dealt with hereunder:-

"The fact which is undisputed, is that respondent no.2 was the complainant to the FIR, which was registered as an FIR No.161 of 2011, for the alleged involvement of the named accused person therein for the offences under Sections 147, 148, 324, 347, 504, 506, 454 & 380 of IPC, which was registered at P.S. Kotwali, District Haridwar."

4. Mahant Ramdas and Ramdharacharya, who are the respective applicants in C482 No.403 of 2020, were the named accused person in the FIR. But, however, when the investigation was carried out and the charge sheet was submitted being Charge Sheet No.145 of 2011 dated 21.06.2011, it was submitted as against Mr. Manmohan Das Shishya Bharat Das who only was found to be the accused person. It is based on the said charge sheet, that the proceedings of the Criminal Case No.6456 of 2011, State vs. Manmohan Das and others was put to motion. It was during the course of trial, that an application under Section 319 of the Code of Criminal Procedure was presented by the respondent herein on 21.09.2015, wherein, it was contended, that the present applicants in C482 application, who were the earlier named accused person in the FIR whose name figured in the charge sheet submitted by the Investigating Officer, they are required to be summoned, as they would be in a better position to provide an appropriate evidence to the court with regard to the alleged commission of offence which was complained of in the FIR.

5. The application thus preferred under Section 319 of Cr.P.C. by respondent no.2, was considered by the Court of Chief Judicial Magistrate and the same was allowed by the impugned order, which is of a common date i.e. 14.01.2016. Later on, on challenge being given to it in Criminal Revision No.36 of 2019, the revision was dismissed, thereby affirming the order of the Trial Court dated 14.01.2016.

6. The learned counsel for the applicant has confined his argument from the view point, that if the provisions contained under Section 319 Cr.P.C. are taken into consideration, it has to be strictly followed for the purposes of summoning a person for the purposes for being tried, which would be obviously according to the wisdom based upon an appreciation of evidence by the Court seems to be guilty of commission of offence.

7. The language used under sub section (1), which would be of much relevance is extracted hereunder:-

"It uses the word "that any person not being an accused", has committed an offence for which such person could be tried."

8. The restrictions of summoning a person and the procedure, which is required to be allowed while passing an order under Section 319 Cr.P.C. is to be strictly followed in those cases, where the person is not found to be instrumental in the commission of an offence at the stage of investigation. But, in those cases, where the person, who has sought to be summoned by the Court while passing an order on application under Section 319 of Cr.P.C., if he was a named accused person, whose involvement in the commission of the offence was found, as per the set of allegations in the FIR, though exonerated in the charge sheet, submitted by the Investigating Officer, will not be a person, which would be falling within the exception provided

by the provisions contained under Section 319 Cr.P.C., for the purposes of summoning of a person, who is not an accused person.

9. In an answer to it, learned counsel for the respondents applicants submits, that almost a similar situation arose for consideration before this Court in a Criminal Revision No.406 of 2018, Rihan vs. State of Uttarakhand through Secretary Home Dehradun and Another, and this Court while dealing with implications contained under Section 319 of Cr.P.C. and the parameters, which were required to be considered has appreciated the provisions contained under Section 319 Cr.P.C. by interpreting as to what would be the terms "satisfaction" mean as referred to under Section 319 Cr.P.C. has been observed in its para 6.

10. It is exclusively the prerogative of the Court to justify itself by recording its satisfaction to necessitate the summoning of an accused person, who is otherwise not a named accused in the FIR.

11. The principle, which has been followed by this Court was that as rendered by the Hon'ble Apex Court in Criminal Appeal No.1349 of 2018, Labhuji Amratji Thakor & Ors. vs. The State of Gujrat & Another, and particularly, the implication, which has been drawn by the Court has been given in para 10, that, in cases where the provisions under Sections 319 Cr.P.C. is to be applied, it has to be strictly applied to when the person who has been sought to be summoned is stranger to the proceeding, the same rigid principles of strict interpretation and the necessity to summon a person cannot be equally made applicable in those cases where the person was a named accused person,

but was later on not shown in the charge sheet or in the consequential summoning order, and the hence, the strict principle of the provisions contained under Section 319 Cr.P.C. as referred to therein in para 8 is not to be applied in those cases where a person's involvement is apparent from the documents placed on record, and particularly in the context of the averments made in the FIR.

12. The learned counsel for the applicants has made reference to a Constitution Bench Judgement reported in (2014) 3 SCC 92, Hardeep Singh vs. State of Punjab and Others, and particularly, he has referred to para 95 and para 105 of the said judgment which is extracted hereunder:-

"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 Cr.P.C., 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, 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.

105. Power under Section 319 Cr.P.C. 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."

13. If aforesaid para 95 is taken into consideration, the strict implication of Section 319 Cr.P.C., has been attracted to be applied in those cases, where the Court has to determine as to whether at all a prima facie case offence is made out, to proceed against the accused. If the observations made in para 95 is read in context of the observation made in para 105, on which, the reliance has

been placed in the light of the fact, that it would be in those cases, where the Court has to first satisfy himself that the person who has to be summoned is not a named accused person or was not involved in the commission of offence. This generalized principle will not be applicable in those cases, where the person is already a named accused person and has been exonerated by the Investigating Officer by not naming him in the charge sheet.

14. The learned counsel for the applicants has made reference to yet another judgment reported in (2023) LiveLaw (SC) 172, Vikas Rathi vs. the State of U.P. and another, and particularly, he has made a reference to para 15 of the said judgment which is extracted hereunder:-

"15. One of the arguments raised by learned counsel appearing for the parties was that in the case in hand, the High Court instead of appreciating the material placed on record by the parties in the form of evidence to find out as to whether a case was made out for summoning of the appellant as an additional accused, remitted the matter back to the trial court for consideration afresh. Remand in such a matter will only result in prolonging the litigation. The High Court only recorded that reasons assigned by the trial court for rejecting the application were not sufficient. To avoid delay, it would have been proper exercise of power in case the High Court would have considered the material and opine as to whether a case was made out for summoning of additional accused. Whatever reasons have been recorded by the trial court in the order so passed, may not have been happily worded to the satisfaction of the High Court, but that error could have been corrected in exercise of revisional power.

15. There cannot be any doubt or a second thought at all to the principles laid down by the Constitution Bench Judgment, as well as by the judgment of 2023 in Vikas Rathi (supra) that summoning of an accused by invoking the provisions contained under Section 319 Cr.P.C. has had to be resorted to by utmost care and precaution because summoning of an accused person would be the fatal in cases of summoning of a person, who is not a named accused person, as per the implications of the provisions contained under Section 319 Cr.P.C. It would have serious

consequences and that is why the material framework under which the Hon'ble Apex Court has laid down principle contained in para 15 has had to be tested under the factual backdrop, which was involved in the said case, as it was dealt with in para 6, which is extracted hereunder:-

"6. He further submitted that the stage at which the application was filed by the complainant to summon the appellant as an additional accused, the trial was going to conclude as the entire evidence had been led. Vide judgment of the Trial Court dated 06.10.2017, even the accused against whom the charge-sheet was filed, were also acquitted. It was on the basis of the sketchy evidence produced by the prosecution before the trial court that the appellant was sought to be summoned."

16. In fact, the Hon'ble Apex Court in para 6 has observed that the stage, at which, the application under Section 319 Cr.P.C., was filed to summon the applicant as an "additional accused", when the use of word "additional accused" herein means, that he is not already a named accused person in the FIR, who was shown to be involved in any manner in commission of offence. Hence, the Hon'ble Apex Court has observed, that in these cases where at a fag end of conclusion of trial, summoning of an accused under Section 319 Cr.P.C., who was otherwise not a named accused person to be involved in the commission of offence should be sparingly resorted to. This rigid principle has to be adopted by the court while exercising powers under Section 319 Cr.P.C., which is not a case at hand.

17. It has been argued by the learned counsel for the applicants, that the learned trial Court was not justified by not assigning reasons to necessitate passing of an order on application under Section 319 Cr.P.C. This argument, yet again is not accepted by this Court, because, if the principle judgment of 14.01.2016 impugned in the present C482 application is taken into consideration, the Court while considering the necessity to summon the named accused person of the FIR, i.e. the applicants herein the valid

reasons has been assigned thereto after appreciation of the statement of P.W.1, the injured witness, and the other evidences, which were on record, before the Court. In order to better illustrate the controversy, the court has assigned the reason to consider the application under Section 319 Cr.P.C. for summoning the named accused person.

18. After having gone through the entire record, and particularly, the two judgments under challenge, they do justify the test of a reasonable applicability of mind by the Court while exercising its jurisdiction to allow the application under Section 319 Cr.P.C. As such, the impugned judgment does not suffer from any apparent error to call for interference in the exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure.

19. Accordingly, C482 Applications lack merit and the same are hereby dismissed.

(Sharad Kumar Sharma, J.) 18.03.2023 Ravi