A.F.R.
Court No. - 49
Case :- CRIMINAL REVISION No. - 3212 of 2018 Revisionist :- Ashraf Ali And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Ved Mani Sharma Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Ved Mani Sharma, learned counsel for the applicants, Sri Bhaskar Bhadra, learned counsel for the opposite party no. 2 and learned A.G.A. for the State.
2. The present criminal revision has been filed to quash the impugned order dated 29.08.2018 passed by the learned Addl. Sessions Judge, Court No. 11, Bareilly in Session Trial No. 489 of 2016 (State Vs. Asgar Ali @ Azgar) allowing the application of complainant under Section 319 Cr.P.C. and summoning the accused/present applicants to face trial under Sections- 147, 148, 149, 307 I.P.C., arising out of Case Crime No. 92 of 2015, Police Station- Bhamora, District- Bareilly.
3. Learned counsel for the applicants submits that despite earlier order of this Court by which, similar summoning of the present applicants had been set aside, the learned Court below has committed the same error and has again passed an erroneous order inasmuch as instead of recording a strong satisfaction solely on the basis of evidence that may have been led before it, it has now passed the order on the basis of an appraisal of the case diary material as also the evidence received before it.
4. Second, it has been submitted that the learned Court below has completely erred in comparing the facts of the present case with those in the case of Brijendra Singh & Ors. Vs. State of Rajasthan reported in 2017 (7) SCC 706 while giving effect to the earlier order passed by this Court.
5. Third, it has been submitted that the contradiction in the evidence of PW-1 (the eye-witness informant) and PW-2 (the injured eye-witness) was not to be lightly glossed over as has been done by the learned Court below inasmuch as the eye- witness informant had specifically stated that other than Ashraf no other person had used the fire arm while the injured witness accused all the applicants as the persons who had used the fire arm in the occurrence which is clearly false in face of a single fire arm injury mentioned in the injury report.
6. It is therefore submitted that no strong satisfaction could have arisen in the facts of the present case to summon the present applicants.
7. Learned counsel for the opposite party no. 2 submits that the learned Court below had examined each and every aspect of the matter and thereafter reached a strong satisfaction that the present applicants be summoned at this stage as accused persons.
8. Sri Ankit Srivastava, learned AGA on the other submits that the impugned order may not be happily worded. However, if this Court were to ignore that aspect in the interest of justice, then, shorn of technicalities, the impugned order in its entirety does reveal that the learned trial court has considered in part evidence that was led before it, even though in certain parts the case diary material has also been noted.
9. Having considered the arguments so advanced by learned counsel for the parties, in the first place, it has to be placed on record that it is never the facts of a case that are laid down by way of a principle of law, either by the Supreme Court or this Court to be applied by the subordinate courts. It is the principle of law that is laid down that constitutes the ratio decidendi.
10. The judgment in the case of Brijendra Singh & Ors. Vs. State of Rajasthan reported in 2017 (7) SCC 706 and Hardeep Singh Vs. State of Punjab and Others reported in AIR (2014) 3 SCC 1400 only lay down the principle of law to be applied while summoning other persons as accused persons to be tried along with the charge sheeted accused. In that regard, amongst others, it has been held by the Supreme Court that:
(i) the power under Section 319 Cr.P.C. is to be exercised sparingly;
(ii) any person (other than the person already facing trial), may be summoned only if a strong satisfaction arises with the learned trial court that such other person is liable to be tried along with persons already facing trial;
(iii) the strong satisfaction under Section 319 Cr.P.C. may arise solely/only on the basis of evidence that may be received by the learned trial court and not on the basis of the case diary material and;
(iv) the strong satisfaction required to be recorded has to be of a degree higher than that required for the purpose of framing of charge but lower than required to secure an order of conviction, if the evidence in question were to go unrebutted.
11. While the learned trial court may consider only such evidence as may be lead before it, to form a satisfaction to summon a person under Section 319 Cr.P.C., it may of course, in the given facts of a case utilize the material collected by the investigating officer for corroboration and to support the evidence recorded during trial.
12. Also, if it may appear to the trial court that the statement/evidence recorded during trial is a mere reiteration of statement recorded during investigation the trial court may remain bound to look into the other case diary material (as may be favourable to the person being summoned), to render such satisfaction strong rather than summoning a third person at any particular stage of a trial, on a mere possibility.
13. It cannot be forgotten, that a trial commences after conclusion of an investigation and enquiry. Only thereafter, the charge is framed and the trial begins against specific person/s for specific offence/s. That course having been taken upon so much of exercise and process, may not be lightly allowed to be altered, mid-way. Such easy alterations are bound to cause delay besides being otherwise undesirable. In any case, since there is wide latitude given to the trial court as to the point in time when it may exercise the power under section 319 Cr.P.C., the trial court may always bear in mind the most appropriate time when it may exercise that power, rather than appearing to exercise that power at the earliest.
14. Such course, amongst others may itself ensure a sparing exercise of the power besides rendering the satisfaction stronger. No principle exists as to the point in time when such power may be exercised, in as much as, a person may be summoned under section 319 Cr.P.C. even on a statement recorded during the examination-in-chief, even before cross examination. However, those cases may be fewer and it would all depend on the facts of each case and the quality and nature of evidence led.
15. Perusal of the impugned order does indicate that the learned Court below had taken note of the case diary material as also the evidence that had been led before it. In this regard, a dissection has been made by the learned AGA between two parts of the impugned order. He has referred to those parts of the impugned order where the learned Court below has observed that all the accused were stated to be present at the time of the occurrence and they were also claimed to be carrying fire arms. In view of the consistent testimony of both prosecution witness as to the presence of all the applicants at the time and place of occurrence, appears that the learned trial court has not erred in over-looking the plea of alibi, at this stage, inasmuch as it would remain a matter to be examined during the trial.
16. The learned A.G.A. appears to be correct in his submission - in view of the fact that the case diary material does not contain any glaring material as may have prevented the learned Court below from forming a strong satisfaction as to the complicity of the applicants in as much as other than the Call Detail Record (CDR), there did not exist any other material to weaken the satisfaction formed by the learned trial court to summon the applicants under section 319 Cr.P.C.
17. Thus, though the impugned order may not be happily worded still in view of the discussion made above, it can be discerned from the entirety of the order that a satisfaction had been recorded in the latter part of the order passed by the learned Court below. Again in the entirety of the contents of the impugned order, the same does appear to be based upon evidence received by the learned trial court. The other part of that order that refers to the case diary material (for the purpose of forming the satisfaction), though erroneous, is separable from the other part. Still, such satisfaction otherwise reached even looked at in light of the case diary material, appears strong.
18. Therefore, the impugned order does not call for any interference.
19. However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
20. With the aforesaid directions, the present criminal revision is disposed of.
Order Date :- 24.9.2018 Abhilash