Case :- CRIMINAL REVISION No. - 2486 of 2007
Revisionist :- Ramesh Tiwari Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- N.D. Shukla Counsel for Opposite Party :- Govt. Advocate,L.K. Dwivedi
Hon'ble Siddharth, J.
Heard Sri N.D. Shukla, learned counsel for the revisionist, learned A.G.A for the Opposite Party No. 1 and Sri L.K. Dwivedi, learned counsel for the Opposite Party No. 2. This Criminal Revision is directed against him order dated 10.08.2007 passed by Additional District Judge, F.T.C., Court. No. 1, Bhadohi, Gyanpur in S.T. No. 84 of 2006 (State v. Dinesh and Ors.) under Sections 323, 325, 504, 506, 452, 308 I.P.C., P.S- Suriyawan, District- Sant Ravidas Nagar, Bhadohi whereby applicant has been summoned under Section 319 Cr.P.C. on the application filed by opposite party no. 2 which has been allowed.
The learned counsel for the revisionist has contended that the learned court below has not recorded its finding with regard to his satisfaction in order dated 10.8.2007 passed in S.T. No. 84/2006 (State Vs. Dinesh and others), under sections 323, 325, 504, 506, 308 I.P.C., P.S. Suriyawan, District Sant Ravidas Nagar, Bhadohi, wherein the revisionist has been summoned by the court below to face trial. The learned court below has allowed application under section 319 Cr.P.C. moved on behalf of prosecution for summoning revisionist Ramesh Tiwari to face trial in the said session trial on the basis of F.I.R. and statements of two prosecution witnesses, namely, Rajeev Vishwakarma and Sanjai Vishwakarma, but the learned court below did not comply with the provisions of Section 319 Cr.P.C. with regard to satisfaction of the court.
The learned counsel for the revisionist has relied on the decision of Shiv Ganesh Gautam Vs. State of U.P. And another, 2007 (11) U.P.Cr.R. 277, wherein this Court has observed that summoning of a person as accused under Section 319 Cr.P.C. is a serious matter as it jeopardises his liberty and entails serious consequences. It should not be resorted to as a matter of routine. There cannot be any hard and fast rule in this respect but every case will vary from facts to facts and evidence led in the trial. There cannot be rigid formula for it but flexibility of evidence led in the trial coupled with the role and nature of crime will be the guiding factors for exercising such wholesome power.
This Court taking in view several cases in this regard has observed that summoning of a person as an accused under Section 319 Cr.P.C. should not be done as a matter of routine course. It should be done on this basis of cogent and reliable evidence which can prima facie be considered to be sufficient for a likelihood conviction of the person to be summoned.
This Court in Amar Singh and others Vs. State of U.P. and another, 2008 (60) ACC 118, considering proposition of law laid down by the Hon'ble Apex Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others and Michael Machado Vs. Central Bureau of Investigation as well as Mohd. Shafi Vs. Mohd. Rafiq and another, 2007 (58) ACC 254, has summed up the law relating to Section 319 Cr.P.C. as under:
“1. The power under Section 319 Cr.P.C. is not to be exercised mechanically on the ground that some evidence has come on record implicating the person sought to be made an accused.
2. There is no compelling duty on the Court to proceed against those persons against whom no chargesheet has been submitted.
3. The power under section 319 Cr.P.C. is discretionary and should be exercised to achieve criminal justice and the Court should not turn against another person simply because it has come across some evidence connecting that person also with the offence. The Court should exercise judicial discretion in the matter considering all the relevant facts and circumstances.
4. The Court must be satisfied that the other person, who had not been arrayed as accused, had also participated in commission of the offence.
5. The power under section 319 Cr.P.C. is extraordinary power conferred on the Court and this should be used very sparingly if the compelling reasons exist for taking cognizance against other accused persons against whom no chargesheet has been submitted.
6. There must be reasonable prospect of the case against the newly added accused ending in his conviction for the offence concerned and then only that person should be summoned as an accused otherwise the Court should refrain from adding him as an accused.
7. The Court shall exercise a judicial discretion taking into consideration conspectus of the case including the stage at which the trial has proceeded and the quantum of evidence collected till the date and time spent by the Court for collecting such evidence while passing the order of summoning the person under section 319 Cr.P.C.
8. The satisfaction whether there exists likelihood of conviction of the person to be summoned as accused can be arrived at inter alia upon cross examination of the witness naming him and so the orders for summoning a person as accused under section 319 Cr.P.C. should be passed after cross examination of the witnesses.
9. The Court concerned may also take into consideration other evidence before passing an order for summoning a person as an accused under section 319 Cr.P.C.”
In Lal Suraj @ Suraj Singh and another Vs. State of Jharkhand, 2009 (67) ACC 733, the Hon'ble Apex Court has observed that in exercise of powers under Section 319 Cr.P.C. the trial court must form an opinion on the basis of evidence brought before it that case has been made out that such person can be tried alogwith other accused persons. If there is no possibility of recording a judgment of conviction against the person, he cannot be summoned to face trial under Section 319 Cr.P.C. In Mohd. Shafi Vs. Mohd. Rafiq and another, 2007 (58) ACC 254, the Hon'ble Apex Court has observed that when the trial court is not satisfied that there is enough prima facie evidence to show the involvement of the person in the crime, no order under section 319 can be passed. Discretion in this behalf must be judicially exercised. It is incumbent that the Court must arrive at its satisfaction in this behalf.
Learned counsel for the applicant has relied upon the judgment of this Court in Criminal Revision No. 1873 of 2018 on 12.07.2018 and has submitted that the facts of this case are similar to the case decided to this Court and has referred to this judgment as follows:-
Learned counsel for the applicants submits that while the applicants had been named in the FIR, however, the police had expunged their name in the charge sheet in absence of evidence against them though even at that stage, the informant and the injured witness had named the applicants.
However, no evidence had been received during trial, other than the statements of PW-1 and PW-2 alleging that the applicants had caused fire arm injury. No other evidence evidence has come on record to implicate the applicants with offence as alleged. It is submitted, apparently there is discrepancy in the statement of PW-1 and PW-2 inasmuch as while PW-2 appears to have stated that he had received fire arm injuries in his abdomen. According to the description given by the PW-1, such fire arm injury had been caused from behind.
It is thus submitted that no satisfaction has been recorded by the learned Court below in terms and in accordance with the judgment of the Supreme Court in the case of Brijendra Singh & Ors. Vs. State of Rajasthan reported in 2017 (7) SCC 706 and that the applicants had been pre-maturely summoned.
Learned counsel for the opposite party no. 2 on the other hand submits that the applicants cannot cite minor discrepancy in the statement of PW-1 and PW-2. He has relied on the injury report to submit that the fire arm injury had in fact been caused from behind and not from the front.
Learned AGA also submits that at this stage, it was not relevant for the learned Court below to record a firm conclusion as to the occurrence of the incident. Only prima facie, satisfaction was required which has been done.
Having considered the arguments so advanced by learned counsel for the parties, it does appear, though there is some evidence received by the learned trial court, however, the order as has been passed does not satisfy the test laid down in the case of Brijendra Singh & Ors. Vs. State of Rajasthan (supra).
Paragraph nos. 12, 13 and 14 of the said judgment read as under:
"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's case and answered in the following manner:
"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 V. 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 require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
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 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 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 CrPC 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's 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 ongoing 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 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 Cr.P.C. No doubt, such evidence 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 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. 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 chargesheet 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 a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
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."
Tested on that principle it is difficult to sustain the impugned order as it does not contain a 'strong satisfaction' required to be recorded by the learned Court below.
No useful purpose would be served in keeping the present revision pending any further inasmuch as it appears that at present, the learned Court below has not made a complete application of mind to the entire evidence that may be existing on record. It would be improper to this Court to examine the same to reach any conclusion whether strong suspicion is made out. That discretion will remain with the learned Court below. The order dated 18.04.2018 passed by the learned Addl. Sessions Judge, Court No. 13, Bareilly is set aside and the matter is remitted to the learned Court below to decide the matter afresh in accordance with law, as expeditiously as possible, preferably within a period of one month from the date of production of a certified copy of this order.
It is further made clear that this Court has not examined the merits of the application under Section 319 Cr.P.C. and has not expressed any opinion whether the applicants are required to be summoned under Section 319 Cr.P.C. or not. This order is confined to the objection raised to the manner in which the power has been exercised and not the justification of such exercise.
Per contra, learned A.G.A. and Sri L.K. Dwivedi, have argued that a perusal of the impugned order shows that the trial court has applied its mind to the evidence on record and has recorded the finding that P.W.-1 and P.W.-2, have clearly alleged involvement of the applicant in the alleged crime. It has been further argued that the applicant was named in the F.I.R. and in the statements of the witnesses recorded by the police. The allegations were made against him but the police wrongly did not filed chargesheet against him and now after the statements of P.W.-1 and P.W.-2 have been recorded by the trial court. The involvement of the applicant has been proved beyond doubt and according to finding the applicant has been summoned by the courts below exercising power under Section 319 Cr.P.C.
After hearing the rival submissions it appears that from the law settled by this Court and the Apex Court, discussed above, a very strong satisfaction is required to be recorded by the trial court before summoning the accused under Section 319 Cr.P.C. In the present case only reference to the statement of P.W.-1 and P.W.- 2 has been made by the trial court without discussing what has come in the statement of P.W.-1 and P.W-2, against the applicant which has led the trial court to exercise its powers under Section 319 Cr.P.C. and summon the applicant for trial.
In view of the above, the impugned order dated 10.08.2007 passed by the trial court is set aside. Trial court is directed to pass fresh order, relating its satisfaction as required under Section 319 Cr.P.C. within one month from the receipt of the certified copy of this order without granting any adjournment at all to the revisionist.
The order dated 10.08.2007 passed by the trial court is set aside. This revision is allowed subject to the aforesaid observations.
Order Date:- 27.07.2018 Rohit