Court No. - 44
Case :- CRIMINAL REVISION No. - 2771 of 2018 Revisionist :- Aziz Kureshi And Another Opposite Party :- Anwar Ali Counsel for Revisionist :- Amar Nath Mishra,Satyendra Kumar Mishra
Hon'ble Rajeev Misra,J.
1. Heard Mr. A.N. Mishra, the learned counsel for the revisionists and the learned A.G.A. for the State.
2. This Criminal Revision has been filed challenging the order dated 16.07.2018 passed by the Additional/Special Judge, U.P. Dacoity Affected Area Act (U.P.D.A.A.A.), Lalitpur, in Sessions Trial No. 15 of 2006 (Anwar Ali vs. Liyakat Ali & Others) under Sections 392 and 427 I.P.C., Police Station Kotwali Lalitpur, District Lalitpur, whereby the application (Paper No. 277 Kha) filed by the opposite party No.2 in terms of Section 319 Cr.P.C. has been allowed and the revisionists have been summoned for trial in the above mentioned case.
3. From the record, it appears that the opposite party no.2 filed a complaint dated 25th October, 2002, wherein nine persons including the present revisionists were named as the opposite parties/prospective accused. The Sessions Judge took cognizance on the said complaint and accordingly, directed that the statement of the complaint and his witnesses be recorded in terms of Sections 200 and 202 Cr.P.C. Accordingly, the statement of the complaint Anwar Ali was recorded as E.W.-1 followed by the statement of E.W.2 Gopi Sharan Bhat, E.W.3 Rati Ram and E.W. 4 Nazira Begum. Upon consideration of the allegations made in the complaint and also the statements of the complainant as well as the witnesses, the court concerned passed the summoning order dated 29th April, 2006, whereby only two of the named opposite parties, namely, Liyakat Ali and Shakir Ali were summoned.
4. The trial commenced. Charges were framed against the aforesaid two accused persons, namely, Liyakat Ali and Shakir Ali vide order dated 2nd November, 2006. After the testimony of P.W.1, Anwar Ali, P.W. 2 Nadira Begum were recorded the complainant opposite party no.2 filed an application dated 17th May, 2007 for summoning Aslam Quraishi, Mohd. Aziz Quraishi, Musahib Ali, Samad Khan, Islamuddin, Babu Badruddin, Niyazuddin under Section 319 Cr.P.C. This application came to be decided vide order dated 22nd January, 2008. On the basis of the statement of the P.W. 1 and P.W.2, only three persons, namely, Aslam Quraishi, Islamuddin and Samad Khan were summoned under Section 319 Cr.P.C. to face trial. The court did not find any such material in the statements of P.W. 1 and P.W. 2 to summon the present revisionists. This order dated 22nd January, 2008 has become final between the parties for want of further challenge. Subsequently, P.W.3 Rati Ram was examined. Thereafter the complainant opposite party no.2 filed an application dated 12th April, 2017 (paper no. 227 Kha) in terms of Section 319 Cr.P.C. to summon the present revisionists for facing trial in the above mentioned case. This application was opposed by the revisionists by filing an objection dated 18th May, 2018. The court below by means of the impugned order dated 16th July, 2018 allowed the said application and consequently summoned the revisionists in the above mentioned sessions trial. Feeling aggrieved by the aforesaid order dated 16th July, 2018, the revisionists have now come to this Court by means of the present criminal revision.
5. A perusal of the order dated 16th July, 2018 passed by the court below will go to show that the court below has recorded a finding that an application under Section 319 Cr.P.C. can be filed at any stage of the proceedings as per the Five Judges' Judgment of the Apex Court in the case of Hardeep Singh vs. State of Punjab; reported in (2014) 3 SCC 92. Therefore, the court concluded that the objection raised on behalf of the revisionists that the application under Section 319 Cr.P.C. to summon the revisionists has been filed at the advanced stage of trial and therefore, not liable to be considered is misconceived. It was further observed by the court below that the objection raised by the revisionists that the application (Paper No. 277 Kha) is the second application under Section 319 Cr.P.C. and therefore, not maintainable was also negated on the ground that since the statement of P.W. 3 has been recorded subsequently, therefore, the second application under Section 319 Cr.P.C. filed by the complainant is not barred.
6. On the factual issue, the court below concluded that the statement of the P.W. 3 is similar to that of P.W. 1 and P.W. 2. However, why the present revisionists were not summoned by the court below even when the name of the present revisionists was specifically mentioned in the statement of P.W. 1 and P.W. 2 is not clear. The court below concluded that being a court, the court is of the opinion that the summoning of the present revisionists is justifiable in law and fact.
7. Challenging the findings recorded by the court below in the impugned order, Mr. A.N. Mishra, the learned counsel for the revisionists submits that firstly the P.W. 3 Rati Ram had deposed before the court below as E.W.3 and on the basis of the testimony of the complainant and his witnesses as well as the allegations made in the complaint, the present revisionists were not summoned, when the court passed the summoning order dated 29th April, 2006. This summoning order dated 29th April,2006 was not challenged by the complainant.
8. Thereafter when the testimony of P.W. 1 and P.W. 2 were recorded the complainant filed an application in terms of Section 319 Cr.P.C. to summon the present revisionists and others. However, upon evaluation of the testimony of P.W. 1 and P.W. 2, the court below by means of the order dated 22nd January, 2008 concluded that as per the testimony of P.W. 1 and P.W. 2, Aslam Quraishi, Islamuddin and Samad Khan are alone liable to be summoned to face trial. This order dated 22nd January,2008 was not challenged by the complainant opposite party no.2 and has become final between the parties.
9. Subsequently, the testimony of P.W. 3 Rati Ram was recorded. At this stage, the complainant opposite party no.2 filed an application dated 12th April, 2017 (Paper No. 277 Kha) to summon the present revisionists under Section 319 Cr.P.C. to face trial in the above mentioned case. The court below allowed the aforesaid application on the findings as noted herein above.
10. According to the learned counsel for the revisionists, the findings recorded by the court below in the impugned order dated 16th July, 2018 are not only illegal and perverse but also erroneous. He submits that the testimony of P.W. 3 is similar to his statement as recorded under Section 202 Cr.P.C. and therefore, nothing new was stated by P.W. 3. As such, there was no such new fact, which had come on the record for the first time before the court in the statement of P.W.3 prompting the court below to summon the present revisionists. He next submits that the statement of P.W. 3 is almost similar to the statement of P.W. 1 and P.W. 2. The prayer made by the complainant opposite party no.2 to summon the present revisionists on the basis of the evidence of P.W. 1 and P.W2 had already been rejected vide order dated 22nd January, 2008. This order dated 22nd January, 2008 has become final for want of challenge by the complainant opposite party no.2. He further contends that the court below has ignored the aforesaid fact by observing that P.W. 1 and P.W. 2 had also taken the names of the present revisionists and then why the present revisionists were not summoned is not discernable.
11. Raising a serious objection to this observation, he submits that judicial discipline required the court not to comment upon the merits of the earlier order passed by the court, which is a Bench of co-ordinate jurisdiction, when particularly the said order had not been challenged by the complainant himself. He further submits that by making the aforesaid observation, the court below has indirectly proceeded to review the earlier order dated 22nd January, 2008, when there is no power of review in a criminal court. Elaborating his submissions, it is submitted that the court below has not recorded a finding as to what new material has come in the testimony of P.W. 3, than what was stated in the statement under Section 202 Cr.P.C. as E.W.3. He further submits that the court below has not pointed out the facts distinguishing the statement of P.W. 3 from that of P.W. 1 and P.W. 2. On the cumulative strength of the aforesaid submissions, it is urged that once the court had previously taken a view that no case for summoning of the present revisionists in terms of Section 319 Cr.P.C. is made out on the basis of the testimony of P.W. 1 and PW. 2, there was no occasion before the court below to make that uncalled for observation disclosing a contrary view. He, therefore, submits that the resulting situation is that on the basis of the same evidence there are two contradictory orders of the same court.
12. The learned A.G.A. appearing for the opposite party No. 1 vehemently submits that the question of summoning of an accused under Section 319 Cr.P.C. depends upon qualitative evidence, which is adduced during the course of the trial. Therefore, the view taken by the Court not to summon an accused at a particular stage of the proceedings cannot be said to operate as res judicata barring the complainant or the prosecution from filing another application under Section 319 Cr.P.C. in the light of the subsequent evidence, which may come on the record. The proposition canvassed by the learned A.G.A. is perfectly justified and does not require any elaboration. However, the issue involved in the present case is that after the testimony of P.W. 3 was recorded, whether the court below was justified in law and fact in summoning the present revisionists on the basis of the aforesaid evidence.
13. It is an undisputed fact that P.W. 3 had also been examined as E.W. 3 and his statement was recorded under Section 202 Cr.P.C. No finding has been recorded by the court below pointing out the new material which has come in the statement of P.W. 3 than what was stated by him under Section 202 Cr.P.C. On this issue, learned A.G.A. could not point out any recital in this regard in the impugned order. Similarly, the observation made by the court below against the previous order dated 22nd January, 2008 also could not be supported by the learned A.G.A. Lastly, the learned A.G.A. has fairly stated that no finding has been recorded in the impugned order pointing out the distinguishing features in the statement of P.W. 3 from that of the testimony of P.W. 1 and P.W. 2, on the basis of which the summoning of the present revisionists could be justified.
14. Consequently, in light of the facts as noted herein above, a debatable situation has emerged before this Court.
15. Having heard the learned counsel for the revisionists and the learned A.G.A. for the State and upon perusal of the material brought on record, the matter requires consideration.
16. Notice on behalf of opposite party No.1 has been accepted by the learned A.G.A.
17. Issue notice to the opposite party No. 2 calling upon him to file a counter affidavit.
18. List on the date fixed in the notice.
19. Untill further orders of this Court, the effect and operation of the impugned order dated 16.07.2018 passed by the Additional/Special Judge, U.P. Dacoity Affected Area Act (U.P.D.A.A.A.), Lalitpur in Sessions Trial No. 15 of 2006 (Anwar Ali vs. Liyakat Ali & Others) under Sections 392 and 427 I.P.C., Police Station Kotwali Lalitpur, District Lalitpur shall remain stayed.
Order Date :- 5.9.2018/cks