Court No. - 70
Case :- CRIMINAL REVISION No. - 2904 of 2019 Revisionist :- Smt. Kiran Yadav And Another Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sanjeev Kumar Singh,U.K.Saxena, Senior Advocate Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1. Heard Sri U.K.Saxena, learned Senior Advocate assisted by Sri Sanjeev Kumar Singh, learned counsel appearing for the revisionists and learned AGA on behalf of the State of U.P./opposite party no.1 and perused the record.
2. This revision under section 397/401 has been preferred by the revisionists against the impugned order dated 29.04.2019 passed by Additional Session Judge/Special Judge, Special Court No.4 (Anti Corruption) Gorakhpur, whereby revisionists have been summoned by the trial court in exercise of power under section 319 Cr.P.C. to face trial alongwith co-accused of this case namely Sangam Lal Yadav (husband of daughter of opposite party no.2).
3. It is submitted by Sri U.K.Saxena, learned Senior Advocate that :-
(3.1) The opposite party no.2 is Sub-Inspector. Marriage of daughter of the opposite party no.2 was solemnized with the brother of the revisionists in the year 2017, but their matrimonial relations were not successful, as a result thereof matrimonial dispute arose between them on account of acrimonious relation between them. Thereafter opposite party no.2 lodged FIR on 03.12.2014 against Sangam Lal Yadav, Kiran and Poonam. The investigating officer after investigation submitted chargesheet only against Sangam Lal Yadav, who is facing trial in this case. Since complicity of the revisionists were found false, therefore, investigating officer did not submit chargesheet against them.
(3.2) In the trial statements of P.W.-1 Ram Suchit Yadav and P.W.-2 Sursati Devi have been recorded. Thereafter an application dated 02.05.2018 has been moved on behalf of the prosecution for summoning the present revisionists under section 319 Cr.P.C. on the ground that their involvement has also come on record in the statement of P.W.-1 and P.W.-2, because at the time of incident both the revisionists were present in the house. The said application dated 02.05.2018 of the prosecution has been allowed by the impugned order dated 29.04.2019.
(3.3) Mr.Saxena, assailing the impugned order dated 29.04.2019 made a precis submission that it is well settled that the 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 or cavalier manner. It is vehemently submitted that in this case decree of satisfaction cannot be said to be more than prima-facie which is mandatory for summoning a person under section 319 Cr.P.C., but the trial court has not recorded reason of satisfaction in terms of law laid down by the Apex Court, therefore, the impugned order dated 29.04.2019 is not sustainable in law and is liable to be quashed.
4. Learned counsel for the revisionists has placed reliance on the following judgments:-
4.1 Hardeep Singh and others vs. State of Punjab and others 2014 (3) SCC, 92- wherein 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.
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.
4.2. 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 cavalier 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.
4.3 Thereafter, the Apex Court in case of Labhuji Amratji Thakar and others vs. State of Gujarat and another 2018 SCC online SC 2547 also followed the principle laid down by the Apex Court in the case of Hardeep Singh (Supra).
4.4 The Apex Court in case of Periyasami and others Vs. S. Nallasamy 2019 (4) SCC 342 has also held that the additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."
5. Per contra, learned AGA submitted that considering the material on record prima-facie offence against the revisionists Smt.Kiran Yadav & Smt.Punam Yadav are also made out, therefore, they are also liable to summon under Section 319 Cr.P.C. to face trial and there is no illegality in the impugned order dated 29.04.2019.
6. The matter requires consideration.
Learned Government Advocate has accepted notice on behalf of the State/opposite party no.1.
Issue notice to opposite party no.2. Steps be taken by the revisionists within ten days.
All the opposite parties may file counter affidavit within six weeks. Rejoinder affidavit, if any, may be filed by the applicant within two weeks thereafter.
List this case on 10.10.2019 before the appropriate Bench.
Till the next date of listing, no coercive action shall be taken against the revisionists (Smt.Kiran Yadav & Smt.Punam Yadav) pursuant to impugned order dated 29.04.2019 of this case.
Order Date :- 30.7.2019 SKD