Court No. - 70
Case :- CRIMINAL REVISION No. - 1610 of 2017
Revisionist :- Adya Yadav Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Rohit Singh Counsel for Opposite Party :- Govt.Advocate,Pankaj Kumar Mishra Hon'ble Sanjay Kumar Singh,J.
1. Heard learned counsel for the revisionist, learned counsel for the opposite party no.2 and learned Additional Government Advocate on behalf of the State/opposite party no.1 and perused the record with assistance of learned counsels for the parties.
2. This revision under Section 397/401 Cr.P.C. has been preferred against the order dated 23.03.2001 passed by Additional District & Session Judge, Court No.10, Gorakhpur, in S.T.No.500 of 1998 (State vs. Molhu & others), under Sections 307, 506 I.P.C., Police Station Ghagha, District Gorakhpur, by which the revisionist has been summoned in exercise of power under Section 319 Cr.P.C. to face trial under sections 307, 504 & 506 I.P.C.
3. Filtering out unnecessary details, the brief facts of the case are as follows:-
(i) On 03.06.1998 opposite party no.2 lodged FIR regarding the alleged occurrence dated 02.06.2018, registered as Case Crime No.l264 of 1998, under sections 307, 506 I.P.C. at Police Station Ghagha, District Gorakhpur against four persons namely Molhu Yadav, Ramesh, Rajaram and Adya Yadav (revisionist), making allegation of causing injury to his father against the co-accused Molhu Yadav and role of exhortation was assigned to co-accused Rajaram with further allegation against the accused Adya Yadav (revisionist) and co-accused Ramesh that they were also present at the spot armed with Katta. The investigating officer after investigation submitted chargesheet only against three accused persons namely Molhu Yadav, Ramesh and Rajaram and exonerated the present revisionist, as his complicity in the alleged offence was found false.
(ii) During the course of trial, statement of opposite party no.2 Naynath Yadav (complainant) was recorded on 16.10.1999, in which he has reiterated the version as mentioned in the FIR. Thereafter prosecution has moved an application under section 319 Cr.P.C. to summon the revisionist on the basis of statement of the complainant recorded during the course of trial as P.W.-1.
The trial court by the impugned order dated 23.03.2001 allowed the application of the prosecution and summoned the revisionist to face trial in exercise of power conferred under section 319 Cr.P.C.
(iii) Against the said order dated 23.03.2001, the revisionist had preferred application u/s 482 No.2372 of 2002 but by order dated 03.02.2015 of this Court, the same was dismissed as withdrawn with liberty to file revision before this Court. In view of above, the present revision under section 397/401 Cr.P.C. has been filed.
4. The main contention of the revisionist is that at the time of alleged incident, he was not present at the place of incident, he was in Pune on 03.06.1998 in discharge of his duty as constable in the Indian Army and he has been falsely implicated in this case. Learned counsel for the revisionist in respect of his aforesaid contention placed reliance on the letter dated 28.01.1999 of Major Pritpal Singh, Coy Cdr Mil Est for Commandant, wherein it has been mentioned that "No.6929838M L/Nk SH GO Adhya Prasad Yadav was granted leave w.e.f 6th April, 1998 to 8th June, 1998 and returned to the unit on 03.06.1998 as he feared that his neighbours were trying to harass him and get him involved in same police case". The letter dated 28.01.1999 appended at Page-36 of the revision.
It is also submitted that admittedly as per prosecution case, the role of causing injury has been assigned to co-accused Molhu Yadav and not to the present revisionist and the main accused Molhu Yadav is facing trial. He further submitted that the impugned order dated 23.03.2001 is not sustainable under the law in view of well settled law laid down by the Apex Court, therefore, the same is liable to be set aside by this Court.
5. Per contra learned Additional Government Advocate on behalf of opposite party no.1 and learned counsel for the opposite party no.2 in support of the impugned order dated 23.03.2001 submitted that the alleged incident took place on 02.06.1998 and on that day he was at the place of occurrence. The plea of alibi taken by the revisionist cannot be taken into consideration at this stage. Further submitted that name of the revisionist is mentioned in the FIR as well as statement under section 161 Cr.P.C. of the complainant. The name of the revisionist has also been taken by the complainant as PW-1 during trial and reiterated the same version as mentioned in the FIR. The findings recorded by the trial court is a sound finding, therefore, considering all the facts and circumstances of the case, the present revision is liable to be dismissed.
6. After having heard the arguments of learned counsel for the parties, here it would be relevant to mention that all the issues relating to scope and object of summoning the accused under Section 319 Cr.P.C. has been well considered and settled by Constitutional Bench consisting of five Judges of Apex Court in case of Hardeep Singh and others vs. State of Punjab and others 2014(3) SCC-92.
Following five questions were before the Apex Court in the case of Hardeep Singh (Supra):-
(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross- examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial"
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign and accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?
(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
The aforesaid question no. iv has been discussed in Para 93 to 106 and answered in Para- 105 and 106 of the said judgment, which are reproduced herein below:-
105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused.
7. The aforesaid principles laid down by the Apex Court in the case of Hardeep Singh (supra) has been reiterated further in case of Brijendra Singh and others vs. State of Rajasthan 2017(7) SCC 706 as well as in the case S Ahmad Ispahni vs. Yogendra Chandak and others 2017 (16) SCC 226 observing that power under Section 319 Cr.P.C. can be exercised only where strong and cogent evidence are found against a person and not in a casual and cavilliar manner. The decree of satisfaction before summoning the offence under Section 319 Cr.P.C. must be more than prima facie, which is warranted at the time of framing of charges against the accused.
8. Apex Court recently on 13 November, 2018 decided another case "Labhuji Amratji Thakar and others vs. State of Gujarat and another 2018 SCC online SC 2547 following the principle laid down by the Apex Court in the case of Hardeep Singh (Supra).
9. On perusal of the impugned order dated 23.03.2001, I find that the findings recorded by the trial court are not in terms of requirement of law laid down by the Constitutional Bench of the Apex Court in the case of Hardeep Singh (supra).
10. Learned counsel for the opposite party no.2 has conceded on this point that though the revisionist has been summoned by the trial court in exercise of powers under section 319 Cr.P.C. but the findings as recorded by the trial court are not in terms of law laid down by the Apex Court in the case of Hardeep Singh (supra). Apart from this the only allegation against the revisionist is that at the time of commission of alleged offence, he alongwith co-accused Ramesh were present at the spot, armed with Katta. It is admitted case of the prosecution that no role of causing injury to the father of the opposite party no.2/injured has been assigned to the revisionist. It is submitted that the revisionist is army personnel and is presently posted at Doklam, which is situated at China boarder. Counsel for opposite party No.2 does not dispute this fact.
11. In view of above, this Court is of the view that under the facts and circumstances of the case as well as evidence on record of this case, there is no strong and cogent evidence to establish more than prima facie case against the revisionist to summon him under Section 319 Cr.P.C. The impugned judgment and order dated 23.03.2001 is not sustainable in the light of well established principles laid down by the Apex Court in the cases of Hardeep Singh, Brijendra Singh, S. Ahmad Ispahni and Labhuji Amratji Thakar (Supra) and liable to be set aside by this Court.
12. In the result, the impugned order dated 23.03.2001 passed by Additional District & Session Judge, Court No.10, Gorakhpur, in S.T.No.500 of 1998 (State vs. Molhu & others), under Sections 307, 506 I.P.C., Police Station Ghagha, District Gorakhpur, is hereby set aside. The present revision is allowed.
Order Date :- 27.2.2019 SKD