Court No. - 49
Case :- CRIMINAL REVISION No. - 2017 of 2018 Revisionist :- Rajaram@Raj Kumar And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Akhilesh Srivastava Counsel for Opposite Party :- G.A.,Ajay Kumar Gautam
Hon'ble Saumitra Dayal Singh,J.
Heard Sri V.P. Srivastava, learned Senior Counsel along with Sri Akhilesh Srivastava, learned counsel for the applicants and Sri Ajay Kumar Gautam, learned counsel for the opposite party no. 2 as also learned AGA for the State.
The present criminal revision has been filed to quash the judgement/order dated 13.06.2018 passed by the learned Addl. District & Sessions Judge, Court No. 10, Aligarh, passed upon the application moved under Section 319 Cr.P.C. by the opposite party no. 2 in Session Trial No. 42 of 2016 (State Vs. Kali Charan and Others), arising out of Case Crime No. 182 of 2016, under Sections- 498A, 304B I.P.C. and Sections 3/4 D.P. Act, Police Station- Tappal, District- Aligarh.
Short submission advanced by learned Senior Counsel appears to be that the applicants were not present at the place and time of the occurrence though they had been named in the FIR, however, during the investigation, a plethora of material had emerged in the shape of recording of the CCTV installed at Jeevan Jyoti Hospital at Aligarh (with respect to applicant nos. 1 and 2) and at K.D. Campus Institute Pvt. Ltd. another establishment at Delhi (with respect to applicant no. 3) as also statements of the employees of such medical establishment at Aligarh and another establishment at Delhi to prove that the applicants were not present at the place of incident being 65 kms. away from the medical establishment (Jeevan Jyoti Hospital), in a village.
It was on the basis of such material collected by the police from the statements recorded during investigation that the applicant had not been charged. It is then submitted that the only evidence that has emerged during trial is the oral statement of the two witnesses. It is therefore stated that before summoning the applicants under Section 319 Cr.P.C., the learned trial court should have applied the test laid down by the Supreme Court in the case of Brijendra Singh and Ors. Vs. State of Rajasthan reported in (2017) 7 SCC 706 wherein paragraph nos. 14 and 15 read as below:
"14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.
15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the ‘evidence’ recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was 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 (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."
It is thus submitted that before summoning the applicants on mere oral statement made by some witnesses, the learned trial court was obliged to have examined the material already existing on the prosecution file to test whether a strong satisfaction could be recorded, of a degree higher than that required for the purpose of taking cognizance, before the applicants could be summoned as accused in the case.
Perusal of the order impugned in the present criminal revision reveals that in fact, the learned Court below has clearly observed that it cannot examine the material that exists on the police report, at this stage. The above observation clearly runs contrary to the rule laid down by the Supreme Court in the case of Brijendra Singh and Ors. Vs. State of Rajasthan (supra).
Consequently, the order dated 13.06.2018 passed by the learned Addl. District & Sessions Judge, Court No. 10, Aligarh is set aside and the matter is remitted to the learned Court below to decide the application filed under Section 319 Cr.P.C. afresh, in accordance with law, without being prejudiced by the observations made in this order, as to the merits of the case.
The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order.
With the aforesaid observation, the present criminal revision is
disposed of.
Order Date :- 30.7.2018 Abhilash