Court No. - 53
Case :-CRIMINAL REVISION No. - 1793 of 2018
Revisionist :- Ishwar Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Madan Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Heard Sri Madan Singh, learned counsel for the applicant and Sri M.P. Singh Gaur, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
This revision has been filed from a judgement and order dated 08.03.2018 passed by the learned Additional District and Sessions Judge, Court No. 6 Bijnor in S.T. No. 192 of 2017 'State vs. Nand Lal and others' arising out of Case Crime No. 446 of 2016 under Section 323/34, 304/34, 504, 506 IPC, P.S. Dhampur District Bijnor by which the revisionist has been summoned under Section 319 Cr.P.C. to stand his trial.
The case of the revisionist is that after investigation and a thorough one, he was exculpated by the police. The trial proceeded against the charge sheeted accused Nand Lal where, on the basis of statement of PW-1, who is the first informant and wife of the deceased and also an injured witness, the Trial Court has chosen to exercise powers under Section 319 Cr.P.C. and has summoned the applicant to stand his trial for the offence charged. The statement of Nand Lal has not been considered by the Trial Court. The entire evidence that has been taken into consideration by the police in exculpating the revisionist has not been at all considered. It is emphasized that there is good evidence recorded by the police during investigation that the revisionist was attending coaching classes at Ghaziabad at the time of the incident to which effect evidence has been collected by the police in the case diary. The place of incident is located in Bijnor and distance between the place in Ghaziabad where the applicant was studying and the place of incident is above 100 Kms.
The submission of learned learned counsel appearing for the revisionist is that the Trial Court ought to have looked into the evidence collected during investigation on the basis of which the revisionist was exculpated, before exercising powers under Section 319 Cr.P.C., may be as a corroboration or contradiction of the substantive evidence in the witness box. It has been emphasized that the degree of proof required to be summon an accused under Section 319Cr.P.C.
going by the decision of the Hon'ble Supreme Court in Brijendra Singh and others vs. State of Rajasthan (2017) 7 SCC 706 is much higher than what is required to frame charges against a chargesheeted accused. In this connection, learned counsel for the revisionist has placed reliance upon paragraph nos. 12 and 13 of the decision in Brijendra Singh (supra) which reads thus:
12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh Case (2014) 3 SCC 92 and answered in the following manner: (SCC pp. 135 & 138, paras 95 & 105-106) “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 CrPC, 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 vs. State of Rajasthan (2014) 3 SCC 321, held that on the objective satisfaction of the court a person may be “arrested” or “summoned”, as the circumstances of the case may required, if ti appears from the evidence that any such person not being the accused has committted an offence for which such person could be tried together with the already arrained accused persons.
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105. Power under Section 319 CrPC 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.
106. Thus, we hold that though only a prima facie case is to be established from the evidnece 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 Cr.P.C. to form any opinion as to the guilt of the accused”.
13. In order to answer the question, some of the principles enunciated in Hardeep Singh case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongooing case, once the trial court finds that there is some “evidence” against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The “evidence” herein means the material that is brought before the court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. No doubt, such evidnece that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an exraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.”
Looking to the facts and circumstances of the case, it would be desirable that the case diary be produced by the State and also a counter affidavit filed, particularly, highlighting the evidence on the basis of which the revisionist was exculpated by the investigating agency.
Let this be done within four weeks.
List this case on 09.07.2018 by which time the case diary and counter affidavit as directed above be filed.
Until 09.07.2018, no coercive steps will be taken against the revisionist in S.T. No. 192 of 2017 'State vs. Nand Lal and others' arising out of Case Crime No. 446 of 2016 under Section 323/34, 304/34, 504, 506 IPC, P.S. Dhampur District Bijnor.
Order Date :- 30.5.2018 Deepak