Ram Narain Harijan vs State Of U.P. & Others

Court No. 53 Criminal Misc. Application No. 13563 of 2007 *** Ram Narain Harijan Vs. State of U.P. and another. Hon'ble D.R. Azad, J The present Criminal Misc. Application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to set aside the order dated 30.5.2007 passed by the Special Judge, S.C. /S.T. Act, Court No. 3 Deoria under Section 319 Cr.P.C. in Special Trial No. 26 of 20903 ( State Vs. Paras and others) under Section 3 (i) (v) of S.C. /S.T.(Prevention of Atrocities) Act, Police Station Bhatni District Deoria. The case of the prosecution as contained in the first information report is that the applicant is owner of plot Nos. 72,73 and 74 and all the accused­persons named in the first information report including the Opp. Party Nos. 2 to 5 are the owner of plot No. 71, which is adjacent to the plot of the complainant. It is further contained in the first information report that all the accused­persons have forcibly taken the unauthorised possession of the portion of the plot belonging to the applicant, therefore, the application was moved by the applicant­ complainant to Pargana Magistrate, Salempur District Deoria and the Pargana Magistrate, Salempur District Deoria passed the order dated 19.1.1993 and directed the Lekhpal concerned to make the survey of the plot and accordingly a survey was conducted by the Lekhpal and the allegation was found correct and it was found by the Lekhpal that the accused persons have forcibly taken the possession over the plot belonging to the complainant by demolishing the part/property of the applicant/complainant and also by constructing the unauthorised construction and as applicant­complainant belongs to schedule caste community, therefore, this illegal act of the accused persons comes within the purview of offence under Section 3(i)(v) of S.C./S.T. (Prevention of Atrocities) Act. On the basis of the first information report lodged by the complainant , case Crime No. 68 of 1993 has been registered at police station Bhatni District Deoria under Section 3(i)(v) of S.C./S.T. (Prevention of Atrocities) Act. against 15 accused persons including Opp. Party Nos. 2 to 5. The police after usual investigation, submitted the charge­sheet against only 11 accused persons named in the first information report and excluded the name of the Opp. Party Nos. 2 to 5. After submission of the charge­sheet, the case was committed to the court of Sessions being S.T. No. 26 of 2003 in the court of Special Judge, S.C./S.T. Act Court No. 3, Deoria. In the trial, P.W. 1 complainant was examined in the Court. After completion of examination of the applicant­ complainant in the court , an application under Section 319 Cr.P.C. has been filed by the complainant for summoning the Opp. Party Nos. 2 to 5. That application of the complainant has been rejected by the trial court vide its order dated 30.5.2007. Being aggrieved against the order dated 30.5.2007, the present application is filed before this Hon'ble Court. I have heard learned counsel for the complainant­ applicant,learned counsel for the respondent Nos. 2 to 5, learned A.G.A. for the State and also perused the materials available on record .

Learned counsel for the applicant has argued that the courts below has passed an arbitrary order dated30..5.2007 and rejected the application filed under Section 319 Cr.P.C. without applying judicial mind and has committed the same mistake which has been committed by the investigating officer. It is further argued that in the order dated 30.5.2007, there was no authentic or credible evidence before the learned trial court to prove the factum of alibi .It is further argued by the learned counsel for the applicant that the Opp. Party Nos. 2 to 5 are influential persons and are posted in Government service, therefore, they motivated the police concerned in their favour and the police during investigation on the basis of plea of alibi has excluded the name of Opp. Party Nos. 2 to 5 in the charge­ sheet submitted against other accused persons. Per contra, learned counsel for the complainant and the learned A.G.A. has controverted the averments made in the application and supported the order dated 30.5.2007. For appreciating the argument of the parties, I would like to reproduce the provisions of section 319 Cr.P.C, which runes as follows:­ "S. 319 Power to proceed against other persons appearing to be guilty of offence:­ (1) Where in the course of any inquiry into, or trial of, an offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, maybe detained by such Court for the purpose of the Inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub­section (1) then:­

(a) the proceedings in respect of such person shall be commenced afresh , and the witnesses re­heard.

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

Sub Section (i) of Section 319 says that where in the course of any inquiry into, or trial of, an offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. It is, therefore, clear that if the evidence tendered in the course of any inquiry or trial, shows that any person not being the accused has committed any offence in which he can be tried together with the accused, he could be summoned to face the trial, even though he may not have been charge­sheeted by the investigating agency.

If any person named in the first information report has not been charge­sheeted and the investigation has been completed, he / they may also be summoned in exercise of the power conferred under Section 319 Cr.P.C.

In the present case, accused were named in the first information report but they were not charge­sheeted by the investigating officer, who came to the conclusion that the Opp. Party Nos. 2 to 5 are the Government Servants. They were not present at the time of the incident, they were on duty. The court may proceed against such person for the offence, which appears to have been committed by such persons from the evidence.

It appears from the order dated 30.5.2007 that the trial court has rejected the application under Section 319 Cr.P.C. only on the ground that the applicants were not present at the time of the incident as they are the Government Servants and were on duty.

The material collected during the investigation is wholly irrelevant and is beyond the scope of Section 319 Cr.P.C. What is to be looked into, for summoning a person under Section 319 Cr.P.C., is the recorded evidence during the trial and no material collected during investigation. All the allegations made during investigation are different in nature for exercise of power under Section 319 Cr.P.C.

I have heard the respective submissions made bythe learned counsel for the Parties. I am of the opinion that the statement of the witnesses under Section 161 Cr.P.C., being wholly in admissible in evidence and could not at all be taken into consideration. The trial court relied upon only wholly inadmissible evidence in rejecting the application under Section 319 Cr.P.C. of the applicant­complainant. As mentioned above, the burden to prove the plea of alibi lay upon the accused when he could produce evidence in the trial and not by the affidavit or statement purported to have been recorded under Section 161 Cr.P.C during investigation. The whole procedure adopted by the trial court is clearly illegal and cannot be sustained. Therefore, the trial court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Opp. Party Nos. 2 to 5 could not have been present at the scene of commission of the crime as they are the Government Servants and were present on their duties at the time of the incident.

Accordingly, this application under Section 482 Cr.P.C. is allowed. The order dated 30.5.2007 passed by the Special Judge, S.C./S.T. (Prevention of Atrocities) Act, Court No. 3 Deoria is set aside. The matter is remanded back for reconsideration of the application of the complainant­applicant under Section 319 Cr.P.C. on the basis of the evidence on record and by applying the law correctly.

Dt: 4.2.2010 n.u.