Court No. - 38
Reserved On : 08.09.2021 Delivered On :25.10.2021
Case :- CRIMINAL REVISION No. - 1919 of 2017 Revisionist :- Raja Ram Verma Opposite Party :- The State Of U.P. And 18 Others Counsel for Revisionist :- Shyam Lal,Abhilasha Singh,Ashutosh Yadav Counsel for Opposite Party :- G.A.,Manas Bhargava,Vaishali Sahu,Vijay Kumar Rathi
Hon'ble Rajeev Misra,J.
1. Heard Mr. Abhilash Singh, learned counsel for revisionist and learned A.G.A. for State. No one appeared on behalf of opposite parties-2 to 18 even in the revised call.
2. Perused the record.
3. This Criminal Revision under Section 397/401 Cr.P.C. has been filed challenging order dated 08.05.2017 passed by Civil Judge (Junior Division) F.T.C., Kanpur Nagar in Case No.1926 of 2014, (State Vs. Raja Ram Verma and Others), under Sections- 420, 467, 468, 471, 120B I.P.C., Police Station- Kotwali, District- Kanpur Nagar.
4. Record shows that revisionist- Raja Ram Verma, lodged an F.I.R. dated 01.06.2010 which was registered as Case Crime No.237 of 2010, under Sections- 420, 467, 468, 471, 120B I.P.C., Police Station- Kotwali, District- Kanpur Nagar. In the aforesaid F.I.R., 18 persons, namely, Raj Bahadur, son of Bhola, Raj Narayan, Ram Chandra, Aniruddh, Raghvendra Singh, Devendra Dwivedi, Jaspreet Singh, Durgesh Kumar Sharma, Sone Mishra, Bhagwandeen, Vivek Dwivedi, Brijesh, Uday Singh, Ravindra, Shri Ram Shastri, Ram Khilawan and Ashok Kumar have been nominated as named accused.
5. After registration of afore-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Investigating Officer examined first informant and other witnesses in terms of Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he opined to submit a charge-sheet but only against few of the named accused. According to Investigating Officer, complicity of other accused was not found to be established in the crime in question during course of investigation. Accordingly, Investigating Officer submitted charge-sheet dated 04.02.2011, whereby only three of the named accused, namely, Raj Bahadur, Ram Narayan and Ram Chandra have been charge-sheeted.
6. After submission of afore-mentioned charge-sheet, cognizance was taken upon same by Special Chief Judicial Magistrate, Kanpur Nagar vide Cognizance Taking Order dated 05.04.2011. As a result of aforesaid Criminal Case No.1926 of 2014, (State Vs. Raja Ram Verma and Others) came to be registered.
7. Trial commenced. Charges were framed against charge-sheeted accused, who denied the same and demanded trial. Consequently, prosecution in support of its case adduced oral evidence by producing various prosecution witnesses.
8. After depositions of P.W.1- Raja Ram Verma, P.W.2- Naveen Kishore Dixit, P.W.3- Ram Vilas, P.W.4- Rameshwar and P.W.5- Ram Manohar had been recorded prosecution filed an application dated 22.01.2016 praying therein that since complicity of other named accused is also established in the crime in question, therefore, they be also summoned to face trial in above-mentioned criminal case.
9. Court below by means of order dated 08.05.2017, rejected the application under Section 319 Cr.P.C., filed by prosecution.
10. Feeling aggrieved by order dated 08.05.2017, revisionist, who is first informant/opposite party-2 has now approached this Court by means of present criminal revision.
11. Learned counsel for revisionist contends that order impugned in present criminal revision is manifestly illegal and without jurisdiction. Court below has erred in law and fact in rejecting the application under Section 319 Cr.P.C. filed by prosecution for summoning of other named accused to face trial in above-mentioned criminal case. Learned counsel for revisionist further submits that as per deposition of P.W.1- Raja Ram Verma, complicity of other accused in the crime in question is clearly established. He has further referred to the judgement of Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 ( Constitution Bench) and on basis thereof it is urged that while deciding an application under Section 319 Cr.P.C., court below was only required to consider the deposition of P.W.1. Since as per deposition of P.W.1, complicity of other accused in the crime in question is clearly established, therefore, court below ought to have summoned the revisionist to face trial. He, therefore, contends that impugned order be quashed and revision be allowed.
12. Per contra, learned A.G.A. has opposed this criminal revision. Learned A.G.A. submits that impugned order passed by court below is perfectly just and legal. Court below has rejected application under Section 319 Cr.P.C. filed by prosecution on valid and cogent grounds and not on conjunctures and surmises. Court below has exercised its jurisdiction with due diligence and not in casual and cavalier manner. No jurisdictional error has been committed by court below in rejecting the application under Section 319 Cr.P.C. filed by prosecution. Perusal of impugned order passed by court below clearly goes to show that prospective accused who are sought to be summoned are subsequent purchasers of the land in dispute. He, therefore, submits that no criminal action can be taken against subsequent purchasers on account of sale deed. He further submits that title proceedings regarding land in dispute are still pending and the right, title and interest of revisionist over the land in dispute is itself not yet established. As such at this stage, it cannot be said that subsequent purchasers have committed any criminality in purchasing the land in dispute.
13. Having heard learned counsel for revisionists, learned A.G.A. for State and upon perusal of record, this Court finds that the issue that arises for determination in present criminal revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As a corollary to above, Court will also have to consider whether the order impugned is within the parameters or not.
14. Parameters regarding exercise of jurisdiction by Courts under section 319 Cr.P.C. has been considered time and again by Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCC 244
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638
(xiii) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805
(xiv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online SC 390
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806
(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644
(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337
(xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632
(xix) Criminal Appeal No. 990 of 2021 (Umesh Chandra Srivastava Vs. The State of U.P. and another) decided on 13.09.2021.
15. With the aid of above, Court now proceeds to examine the correctness of impugned order dated 15.05.2019 passed by Additional Sessions Judge/F.T.C. Court No.3, Muzaffarnagar in Sessions Trial No. 62 of 2019 (State Vs. Mohsin @ Kallu) under sections 364, 376 IPC, Police Station- Mansoorpur, District Muzaffarnagar, whereby application under Section 319 Cr.P.C. filed by prosecution has been rejected.
16. Before proceeding to do so, it must be noticed that following issues stand concluded as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
17. The ambit and scope of powers under Section 319 Cr.P.C. now stands crystalized by Supreme Court in paragraph- 34 of the judgement in Manjeet Singh ( supra) .
18. The summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani ( supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra) .
19. The nature of evidence required for summoning a non charge- sheeted accused to face trial, has been summarized in paragraph- 106 of the Constitution Bench judgement in Hardeep Singh (supra) wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of prosecution witness of fact. The only requirement is that such statement discloses 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. The second test laid down therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani ( supra) Court held that a non charge sheeted accused can be summoned only on the basis of "strong and cogent evidence".
20. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh ( Supra) .
20. The trial Court is competent to exercise its power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in- chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation which suggests otherwise the trial Court is at least duty bound to look into the same, while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record. The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C (vide paragraph 15 of judgement in Brijendra Singhs's Case ( Supra)) .
21. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of P.W.1, Raja Ram Verma, prospective accused could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier manner."
22. In the present case, the Court finds that court below has refused to summon the prospective accused on the ground that they are subsequent purchasers of the land in dispute. Reference at this stage be made to the judgement of Supreme Court in Mohammad Ibrahim and Others Vs. State of Bihar and Others, 2009 (8) SCC 751, wherein Court has held that criminal proceedings can not be initiated against a purchaser, till it is proved that cheating has been committed.
23. As a result this Court will have to examine as to whether something more than mere complicity of prospective accused is established in the crime in question as per caution expressed by Apex Court in Brijendra Singhs's Case (Supra). From perusal of deposition of P.W.-1 parameters laid down in Mohammad Ibrahim (Supra) for continuing prosecution against subsequent purchaser are not satisfied in present case. Thus anxiety expressed by Apex Court in Brijendra Singhs's Case (Supra) is squarely applicable. Accordingly, conclusion drawn by court below in refusing to summon the subsequent purchasers to face trial on account of sale deed executed in their favour regarding land in dispute cannot be said to be illegal, perverse or erroneous. Apart from above, Court below has recorded a specific finding that title of revisionist over land in dispute is itself pending consideration before civil court. As such on date revisionist has no clear right, title or interest in the land in dispute, which can be said to have been infringed on account of execution of subsequent sale deeds. Aforesaid finding recorded by Court below has neither been specifically challenged nor the same could be dislodged by learned counsel for revisionist.
23. For the facts and reasons noted above, this Court finds that no illegality has been committed by court below in rejecting application under Section 319 Cr.P.C. filed by prosecution. Therefore, present revision fails and is liable to be dismissed.
24. It is, accordingly, dismissed.
Order Date :- 25.10.2021 Saif