Reserved on: 8.9.2021
Delivered on:25.10.2021
Court No. - 38
Case :- CRIMINAL REVISION No. - 2319 of 2017 Revisionist :- Ramo Devi And 5 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Kishore Gaurav Kulshresth,Sharad Sharma Counsel for Opposite Party :- G.A.,Mohd Imran Khan
Hon'ble Rajeev Misra,J.
1. Heard Mr. Sharad Sharma along with Mr. Kishore Gaurav Kulshresth, learned counsel for revisionists, learned A.G.A. for State and Mr. Mohd. Imran Khan, learned counsel for first informant/opposite party-2.
2. Challenge in this criminal revision is to the order dated 20.5.2017, passed by Chief Judicial Magistrate, Rampur in Criminal Case No. 1789 of 2015 (State Vs. Naresh Kumar) under sections 498A, 323, 506 IPC and ¾ D.P. Act, Police Station Tanda, District Rampur., whereby Court below has allowed the application under section 319 Cr.P.C. filed by prosecution. Consequently, revisionists have been summoned by court below to face trial in aforementioned criminal case.
3. Record shows that in respect of an incident which is alleged to have occurred on 20.9.2013, first informant opposite party-2 Smt. Minakshi lodged an F.I.R. dated 16.10.2013, which was registered as Case Crime No. 644 of 2013 under sections 498A, 323, 506 IPC and ¾ D.P. Act, Police Station Tanda, District Rampur. In the aforesaid F.I.R., eight persons namely Naresh Kumar, Smt. Ramo Devi, Bool Chandra, Km.
Kamlesh, Mukesh, Smt. Rajesh, Smt. Munni Devi and Mukesh Kumar have been nominated as named accused.
4. In brief, as per prosecution story, as unfolded in aforementioned F.I.R. it is alleged that marriage of first informant/opposite party-2 Smt. Minakshi was solemnised with Naresh on 16.2.2010 in accordance with Hindu Rites and Customs. Marriage of first informant/opposite party-2 was performed by parents of opposite party-2, as per their financial capacity. It is also alleged that a sum of Rs. 10,00,000/- was spend in the marriage of first informant/opposite party-2. It is further alleged that husband of first informant/opposite party-2 and other in-laws were not satisfied with the goods and dowry brought by opposite party-2 at the time of her marriage. Additional demand of dowry to the tune of Rs. 1 Lac and a four wheeler car were raised. As demand of additional dowry was not fulfilled, physical and mental cruelty was committed upon first informant opposite party-2.
5. After registration of above 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 who have supported the prosecution story as unfolded in F.I.R. However, Investigating Officer on the basis of material collected during course of investigation opined to submit a charge sheet only against one of the named accused Naresh husband of first informant/opposite party-2. Rest of the named accused were exculpated on the ground that their complicity was not established in the crime in question during course of investigation. Accordingly, Investigating Officer, submitted charge sheet dated 31.8.2014, whereby Naresh husband of first informant/opposite party-2 was charge sheeted under sections 498, 323, 506 IPC and section ¾ D.P. Act.
6. After submission of aforementioned charge sheet, cognizance was taken upon same by Chief Judicial Magisrate, Rampur, vide Cognizance Taking Order dated 11.3.2015. Resultantly Criminal Case No. 1789 of 2015 (State Vs. Naresh Kumar) under sections 498A, 323, 506 IPC and ¾ D.P. Act, Police Station Tanda, District Rampur came to be registered.
7. Trial commenced. Charges were framed against charge sheeted accused, who denied the same and demanded trial. Consequently, burden fell upon prosecution to bring home the charges so framed by leading evidence. Prosecution in discharge of aforesaid burden adduced first informant/opposite party-2 Smt. minakshi as P.W.1. Her statement-in- chief was recorded on 7.12.2016. However, inspite of opportunity granted by Court below charge sheeted accused failed to cross examine aforesaid prosecution witness (copy of deposition of P.W.1 is on record as Annexure-4 to the affidavit).
8. On the basis of above, prosecution filed an application dated 6.3.2017, under section 319 Cr.P.c. stating therein that since complicity of other named accused is also established in the crime in question as per deposition of P.W.1, therefore, they be also summoned to face trial in above mentioned sessions trial. Application dated 6.3.2017 filed by prosecution under section 319 Cr.P.c. came to be allowed by court below vide order dated 20.5.2017.
9. Thus, feeling aggrieved by above order dated 20.5.2017, revisionists who have been summoned by Court below to face trial in above mentioned criminal case have now approached this Court by means of present criminal revision.
10. Instant criminal revision came up for admission on 1.8.2017 and this Court passed the following order:
“Heard learned counsel for the revisionist and learned A.G.A. Submission of the learned counsel for the revisionists is that revisionists are the family members of the husband of the opposite party no. 2. Although they were named in the F.I.R. but no charge sheet was filed against them as there was no sufficient evidence. During trial on the basis of statement of the prosecution witnesses revisionists were summoned on the application under Section 319 Cr.P.C. There is general and vague allegations against them. In support of his submissions, learned counsel for the revisionists placed reliance on the judgments of the Hon' ble Supreme Court rendered in Brijendra Singh and others Vs. State of Rajasthan reported in AIR 2017 SC 2839 and Geeta Mehrotra Vs. State of U. P. and others reported in 2012 (10) ADJ 464.
Learned A.G. A. has accepted notice for opposite party no. 1. Admit.
Issue notice to opposite party no. 2. Steps may be taken within a week.
Counter affidavit may be filed within four weeks.
Rejoinder affidavit may be filed within two weeks thereafter. List this matter on 21.9. 2017 before the appropriate Bench.
Till the next date of listing effect and operation of the order dated 20 .5. 2017 passed by the Chief Judicial Magistrate, Rampur in case no. 1789 of 2015 ( State Vs. Naresh Kumar) arising out of crime no. 644 of 2013, under Sections 498- A, 323, 506 IPC and Section 3/ 4 Dowry Prohibition Act, P. S. Tanda, district Rampur. ”
11. Pursuant to order dated 1.8.2017, notice was issued to opposite party-2. As per office report dated 17.5.2018, Mr. Mohd. Imran Khan Advocate, has put in appearance on behalf of opposite party-2. However, record shows that no counter affidavit has been filed by opposite party-2.
12. Learned counsel for revisionists contends that order impugned in present criminal revision is manifestly illegal and without jurisdiction. Revisionists were named accused in F.I.R. dated 26.04.2017. However, Investigating Officer on the basis of statements of witnesses examined under Section 161 Cr.P.C. as well as other material collected during course of investigation came to the conclusion that complicity of revisionists in the crime in question is not established. Accordingly, Investigating Officer submitted charge-sheet, whereby only one of the named accused i.e. Naresh husband of opposite party-2 was charge- sheeted, whereas revisionists were exculpated. It is then contended that court below has pre-empted the disposal of application under Section 319 Cr.P.C. filed by first informant/opposite party-2. Court below ought to have deferred the disposal of application under Section 319 Cr.P.C. till testimony of Investigating Officer of concerned case crime number was not recorded. According to learned counsel for revisionists, testimony of Investigating Officer could alone disclose the material, on the basis of which, revisionists were exculpated. In the absence of above, material on the basis of which, revisionists were exculpated from charge-sheet, could not be placed before court below. It is also contended that no protest petition was filed by first informant/opposite party-2 against charge-sheet submitted by Investigating Officer. In the application under Sections 319 Cr.P.C. filed by first informant/opposite party-2, no explanation regarding same has been offered. As such, application under Section 319 Cr.P.C. filed by first informant/opposite party-2 is with an ulterior and oblique motive. As such, same is wholly malicious. Learned counsel for revisionists further contends that as per testimony of P.W.-1, no cast iron case for summoning of present revisionists is made out. Court below has not recorded any finding in the light of law laid down by Constitution Bench in Hardeep Singh and others Vs. State of Panjab and others 2014, 3 SCC 92. It is, thus, urged that court below has failed to exercise it's jurisdiction diligently. Accordingly, court below has summoned revisionists in a “casual and cavalier manner” even when no “strong and cogent evidence” exists against revisionists on record of above mentioned criminal case. On the aforesaid premise, it is thus urged by learned counsel for revisionists that order impugned dated 04.09.2019, passed by court below cannot be sustained in law and fact. Consequently, order impugned is liable to be quahsed and revision be allowed.
13. Per contra, learned A.G.A. has opposed this criminal revision. Learned A.G.A. contends that statement-in-chief of P.W.1- Smt. Minakshi is alone relevant for deciding the application under Section 319 Cr.P.C. filed by first informant/opposite party-2, Smt. Minakshi herself as she is a prosecution witness of fact. However, in present case. P.W.-1, Smt. Minakshi has not been cross-examined by charge sheeted accused inspite of an opportunity having been granted by Court below. As such her testimony falls within the realm of legal evidence, as per the Evidence Act. Consequently, no illegality has been committed by court below in placing reliance upon same for deciding application under Section 319 Cr.P.C. Police report submitted by Investigating Officer is not conclusive proof of innocence of revisionists. No irregularity or illegality has been committed by court below, in passing impugned order dated 04.09.2019.
Even though revisionists have been exculpated by Investigating Officer, same cannot be taken as a ground to urge that revisionists cannot be subsequently summoned to face trial. Revisionists will have adequate opportunity to prove their innocence before court below by adducing evidence as well as Investigating Officer as a defence witness. No attempt has been made to draw a parallel between statement of P.W.1 as recorded by Investigating Officer under Section 161 Cr.P.C. and her testimony given before court below. No pleading has been raised in the affidavit filed in support of stay application appended along with present criminal revision, that nothing new has been stated by P.W.1 Smt. Minakshi in her deposition before court below than what was stated by her in the statement under Section 161 Cr.P.C. As such, nothing new has come on record on the basis of which, revisionists could be summoned. No ground in the light of above has been raised in the grounds of revision. Impugned order passed by court below is in conformity with the principles laid down by Constitution Bench in Hardeep Singh ( supra), wherein court has defined the manner in which jurisdiction under Section 319 Cr.P.C. is to be exercised as well as the nature of evidence required to summon a prosepctive accused. On the aforesaid premise, it is thus urged by learned A.G.A. that no indulgence be granted by this Court in favour of revisionists.
14. Having heard learned counsel for revisionists, learned A.G.A. for State and upon perusal of record, this Court finds that the issue, which arises for determination in present 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 established parameters or not.
15. 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) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, ( 2019) 7 SCC 806
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, ( 2019) 9 SCC 805
(xv) Sugreev Kumar Vs. State of Punjab and Others, ( 2019) SCC Online Sc 390
(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)
16. With the aid of above, Court now proceeds to examine the correctness of impugned order dated 04.09.2019 passed by Chief Judicial Magistrate, Rampur in Criminal Case No. 1789 of 2015 (State Vs. Naresh Kumar) under sections 498A, 323, 506 IPC and ¾ D.P. Act, Police Station Tanda, District Rampur, whereby revisionists and Dr. Balram Singh have been summoned under Section 319 Cr.P.C. to face trial in above- mentioned criminal case.
17. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
18. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystalized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh ( supra).
19. 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).
20. 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”.
21. 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).
22. 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) ).
23. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of P.W.1 Smt Minakshi revisionists could be 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.”
24. P.W.1 Smt. Minakshi is first informant. She is also an eye-witness of the occurrence. It is she who has suffered physical and mental cruelty on account of act of charge sheeted accused as well as revisionists. Statement-in-chief of P.W.1 was recorded on 7.12.2016. However, inspite of opportunity having been granted by court below she was not cross examined by charge sheeted accused. While considering an application under Section 319 Cr.P.C., Court can rely upon the statement-in-chief of a witness, vide paragraph- 92 of the Constitution Bench judgement in Hardeep Singh (supra) . Since P.W.-1 has not been cross examined, inspite of opportunity afforded to charge sheeted accused, as such her testimony falls in the realm of legal evidence. Therefore, no illegality has been committed by court below in relying upon deposition of this witness.
25. Statement-in-chief of P.W.1 Smt. Minakshi is on record as Annexure-4 to the affidavit filed in support of present criminal revision.
26. Perusal of same goes to show that P.W.1 has categorically stated about the time, place and manner of occurrences. This witness is a victim of all the occurrences. As such, she is also an eye witness of the occurrence. This witness is wife/daughter-in-law/sister-in-law of charge sheeted accused as well as revisionists. It is she who has sustained physcial and mental cruelty on account of acts of charge sheeted accused as well as revisionists. Presence of revisionists at the time and place of occurrences along with other accused has been categorically stated by this witness. Inspite of opportunity having been granted, charge sheeted accused failed to cross examine this witness. Upon examination of statement-in-chief of this witness, Court does not find any such material, on the basis of which her testimony could be discarded at this stage. As per deposition of this witness something more than mere complicity of revisionists in the crime in question is established. Testimony of P.W.1 clearly satisfies the tests laid down in paragraph-106 of the Constitution Bench judgement in Hardeep Singh ( supra) , wherein Court has noticed Section 319 Cr.P.C. and has laid emphasis on the term “for which such person could be tried together with the accused”. Her testimony also satisfies the other test laid down in aforesaid paragraph of above-noted judgement which is as follows: 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. As per deposition of P.W.1 presence of revisionists at the time and place of occurrence stands established, Testimony of P.W.-1 thus falls in the nature of “strong and cogent evidence.” As such, testimony of this witness also satisfies the test laid down in S. Mohammaed Ispahani (Supra).
27. In view of above, submission urged by Mr. Sharad Sharma, learned counsel for revisionists that court below has pre-empted the disposal of application under Section 319 Cr.P.C., inasmuch as, the Investigating Officer has not yet been examined and he was the best person to disclose the circumstances on the basis of which, revisionists were exculpated in the charge-sheet, though appears fanciful at the first flush, but is misconceived in view of law laid down by Constitution Bench in Hardeep Singh (supra).
28. The second submission urged by learned counsel for revisionists that nothing new has been stated by P.W.1 in her deposition before Court below than what was stated by her before Investigating Officer in her statement under section 161 Cr.P.C., the Court finds that no pleadings regarding above has been raised in the affidavit filed in support of stay application appended along with present criminal revision. For the conclusion drawn regarding nature of evidence of P.W.1 herein above, submission urged by learned counsel for revisionists is insufficient to dislodge the credibility and reliability of P.W.1 at this stage, wherein something more than mere complicity of revisionists in the crime in question stands established.
29. The same procedure as adopted by Court in judgements referred to in paragraph 12 of this judgement, has been applied in present case. Court has examined the statement of P.W.1 Smt. Minakshi minutely. P.W.1 has implicated the revisionists in the crime in question. As such, complicity of revisionists in the crime in question stands clearly established. In fact as per deposition of P.W.1 active participation of revisionists in the crime in question has been stated. As such, there is something more than mere complicity of revisionists in the crime in question. Court has not come across any such material to conclude that Court below has not exercised it's jurisdiction “diligently” and revisionists have been summoned by Court below in a “casual and cavaliar manner”. Deposition of P.W. 1 falls in the realm of legal evidence inasmuch as inspite of opportunity having been granted by Court below, P.W.1 has not been cross-examined by charge sheeted accused. Her evidence is “strong and cogent evidence” which satisfies the twin tests laid down by Constitution Bench in paragraph 106 of the judgement in Hardeep Singh (Supra).
30. For the facts and reasons noted above, this Court does not find any good ground to interfere in this criminal revision. Present criminal revision lacks merit and is, therefore, liable to be dismissed.
31. It is, accordingly, dismissed.
32. Cost made easy.
Order Date :- 25.10.2021 Arshad