Heard Sri Rajiv Lochan Shukla and Sri Shiv Shanker Prasad Gupta, learned counsels of the revisionists and Sri Pankaj Saxena, learned A.G.A. for the State and perused impugned order and material on record.
Present revision has been preferred against the impugned order dated 7.05.2019 passed by the Additional Sessions Judge, Court No.1, Azamgarh in Session Trial No.49 of 2017 (State Versus Lakshaman Yadav and others) under Sections 302, 120-B, 506 I.P.C. and 7 Criminal Law Amendment Act, Police Station Maharajganj, District Azamgarh, whereby application 21 kha under Section 319 Cr.P.C. moved by informant/opposite party no.2 for summoning the revisionists has been allowed and the revisionists have been summoned to face trial under aforesaid sections.
The facts, in brief, relevant for decision of present revision are that opposite party no.2 lodged F.I.R. on 22.1.2016 at 2.15 p.m. regarding an incident which is stated to have taken place on the same day at 1.00 p.m.. It is stated that on 12.10.2012 at about 4.00 p.m. accused, Saudagar and Sagar in collusion with hired assailants had caused firearm injuries on the informant's son Vishwajeet alias Santosh in which a case was registered and one of the accused Lakshaman was still in jail. The aforesaid accused, Saudagar and Sagar were extending threat for entering into a compromise or else they will face dire consequences. On 22.1.2016 at about 1.00 p.m. the accused, Sagar and Saudagar along with two unknown miscreants came on motorcycle and after waylaying the tempo of the deceased, made him to fell on the ground and they resorted to indiscriminate firing and fled away. After investigation charge-sheet was submitted only against accused, Laxman Yadav under Sections 302, 120-B, 506, 34 I.P.C. and 7 Criminal Law Amendment Act However, the participation of revisionist / accused, Saudagar was found false on the basis of the some electronic evidences collected by the Investigating Officer in the form of Pen Drive and CCTV footage from 21.1.2016 to 23.1.2016. The revisionist no.1, Sagar Yadav was also exonerated on the ground that he was present before Consolidation Officer on 22.1.2016 which is about 40 kms away from the place of incident. During trial statement of first informant PW 1 was recorded. He was also an eye-witness. He had categorically stated that revisionists and two other accused whose names came into light subsequently have resorted to indiscriminate firing in a bright day light incident and his son died on the spot on account of multiple firearm wounds of entry and exit. An application was moved by the prosecution to summon applicants under Section 319 Cr.P.C. in view of categorical statement of the first informant regarding participation of the revisionists by the impugned order. Learned judge summoned revisionists to face trial.
Learned counsel for the revisionists have assailed the impugned order on the ground that the trial judge has misinterpreted evidence on record and has recorded perverse finding about involvement of revisionists in the crime. Trial judge did not consider the material collected during investigation in respect of their plea of alibi which stood unrebutted and solely on the basis of conjectures and surmises summoned the revisionists to face trial. He has also conducted mini trial by even going to the extent of considering the manner in which the Investigating Officer relied on pen drive provided by some well-wisher of the revisionist no.2 from which he had drawn an inference that he was present at a quite far away place and arrived at conclusion that his presence at the spot at the date and time of the incident is doubtful. It has been argued that learned judge has overstepped by scanning the evidence led against revisionists by rejecting it and summoning the revisionists in exercise of powers under Section 319 Cr.P.C.
Learned counsel for the revisionists submitted that in view the judgement of Hon'ble Apex Court in the case of Hardeep Singh Versus State of Punjab (2014) 3 SCC 92, the trial judge has not considered the evidence on record and has relied on extraneous material without recording satisfaction more than prima facie satisfaction sufficient for framing charges is required under the law and no such satisfaction to this effect has been recorded in the impugned order. Learned counsels have further place reliance on subsequent decision of the Hon'ble Apex Court in the case of Brijendra Singh and others Versus State of Rajasthan (2017) 7 SCC 706 and followed in the a recent judgement rendered by Hon'ble Apex Court in the case of Shiv Prakash Mishra Versus State of Uttar Pradesh and another passed in Criminal Appeal No.1105 of 2019 (arising out of S.L.P. (Crl.) No.2168 of 2019) dated 23.7.2019 wherein the plea of alibi was raised by the accused and accepted by Investigating Agency which led to filing of charge-sheet without arraying the accused therein despite having been named as one of the assailants in the F.I.R. and they were summoned on the basis of testimony recorded in the trial as one of the assailants. The powers under Section 319 Cr.P.C. was invoked by the prosecution which led to allowing of the application which was assailed in the High Court whereafter the matter was preferred upto Supreme Court wherein challenge made by the accused therein was upheld by holding that a detailed inquiry has been conducted by the investigating agency where the plea of alibi was found to be true, the trial court was not correct in allowing the application under Section 319 Cr.P.C. in a perfunctory and cursory manner without applying its judicial mind to the exonerative evidence collected by the Investigating Officer during investigation. Learned counsels have submitted that case of the revisionists is more or less on the same lines as during investigation on the basis of electronic evidence and documentary evidence their participation in the murder of the son of first informant was found false. Thus the impugned order is in the teeth of the guidelines/parameters stated in paragraph no.106 of Hardeep Singh's case(supra) and the impugned order is liable to be quashed.
Sri Pankaj Saxena, learned A.G.A. Appearing for the State has strongly opposed the prayer for quashing the impugned order and has relied upon the Constitution Bench decision of Hon'ble Apex Court in Hardeep Singh Versus State of Haryana.. He has further argued that the plea of alibi cannot be considered at the stage of taking cognizance or claiming discharge by the accused under Section 227 of Cr.P.C. and the trial court while exercising powers under Section 319 Cr.P.C. The trial judge has rightly placed reliance on the statement of PW 1 who is the eye-witness and had lodged the F.I.R. within one and half hours of the incident naming the revisionists and two unknown miscreants. Therefore, the instant revision deserves to be dismissed.
In order to deal with the submissions made by learned counsels for the revisionists, especially in respect of subsequent judgements rendered by the Hon'ble Apex Court in Brijendra Singh's and Shiv Prasad Mishra's cases, I would like to deal with legal aspect as to what material/evidence is to be considered under Section 319 Cr.P.C. as laid down in the judgements of the Hon'ble Apex Court in the Constitution Bench decision rendered in the case of Hardeep Singh (supra).
The Hon'ble Apex court in it's decision of Constitution Bench in the case of Hardeep Singh(supra) has considered the scope, ambit and sweep of Section 319 Cr.P.C. in detail and has framed several questions including question No.(iii) which is reproduced below:-
"Question (iii) - Whether the word "evidence" used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial ?"
The above said question has been answered in the following manner by the Apex Court :-
"85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilized only for corroboration and to support the evidence by the court to invoke the power under Section 319 Cr.P.C. The "evidence" is thus limited to the evidence during trial."
This Court, after carefully considering the Constitution Bench decision of Apex Court in the case of Hardeep Singh(supra) and subsequent decisions in Brijendra Singh's and Shiv Prakash Mishra's cases is of the opinion that a bare perusal of two Judges's Bench decision of Apex Court in the Brijendra Singh's case reveals that though earlier decision of Hardeep Singh was considered, however, the scope, ambit and sweep of expression "evidence" contained under Section 319 Cr.P.C. and explained in the para 85 in the judgement was not considered in the subsequent cases to the extent that any evidence collected during investigation either in favour of the prosecution or the accused cannot be taken into account while exercising the power under Section 319 Cr.P.C. In view of unambiguous interpretation to the word 'evidence'; it is limited to the evidence recorded by the trial court".
With profound respect and utmost humility at my command, I may record that it is well settled that authority/judicial precedent has to be understood in context of facts based on which the observation made therein are made. The ratio of a decision is generally secundum subjectam materiam.
In Quinn v. Leathem (1901) AC 495, Earls of Halsbury L.C. stated:
"...that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other case is only an authority for what it actually decides.
It is also well settled that a decision is precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgement that constitutes a precedent. The only thing in Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyze a decision and isolate from it the ratio decidendi.
This court indeed cannot comment on the decision of Hon'ble Apex Court in the Brijendra Singh and Shiv Prakash Mishra's cases(supra) but two conflicting views appeared to exist on the same point of meaning of expression ''evidence' used in Section 319 Cr.P.C., the decision of Hon'ble Apex Court in the case of Hardeep Singh rendered by Bench of larger composition shall prevail upon Brijendra Singh's and another decision.
In view of the above, this Court has no hesitation to hold that the expression "evidence" found in Section 319 Cr.P.C. is to be understood to mean the evidence collected during the trial in shape of oral and documentary evidence. However, the other evidence which has come on record between the stage of taking cognizance by the Court till the commencement of the trial can merely be used for corroborative purposes as laid down by the Apex Court in five Judge Bench decision in the case of Hardeep Singh. In other words, an application under Section 319 Cr.P.C. is maintainable only when implicative evidence of probative value more than strong suspicion comes on record in shape of documentary or oral evidence in trial. While considering such application under Section 319 Cr.P.C. the trial court can take assistance, for corroboration only, of any evidence which is already on record introduced between the stage of taking cognizance and the stage of commencement of trial. However, the trial court is not empowered to invoke Section 319 Cr.P.C. merely based on evidence which is part of investigation stage unless the same is already brought on record between the period of taking cognizance and before the trial begins.
Essentially, the main thrust of the learned counsels for the revisionists is to the plea of alibi which according to them was of an impeccable quality and thus the trial judge instead of rejecting the same on flimsy ground should have considered the same as it was tested by electronic evidence and documentary evidence and in this behalf statement of witnesses was also recorded by the Investigating Officer under Section 161 Cr.P.C. to record a positive finding that the revisionists could not have been present at the scene of commission of crime. It is well settled that statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of proviso to subsection (1) of Section 162 Cr.P.C., the statement can be used only with limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the trial judge was perfectly justified in not placing reliance on wholly inadmissible evidence of alibi collected during investigation and if he had relied upon the same it would squarely be against interpretation given by Constitution Bench of Hon'ble Apex Court in Hardeep Singh's case being extraneous material collected during investigation and could not be treated as an evidence for the purposes of exercise of powers under Section 319 Cr.P.C. Consideration of plea of alibi while exercising powers under Section 319 Cr.P.C. may also be looked into from another angle i.e. Section 103 of Evidence Act which stipulates that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is proved by any law that proof of that fact lies on a particular person. Second illustration to Section 103 of Evidence Act reads as under:
"B wishes the court to believe that at that time in question he was elsewhere, he must prove it."
This provision makes it obvious that burden of establishing plea of alibi of the revisionists before this Court lay squarely upon them. There is hardly any doubt regarding this legal proposition. Reference may be made to the cases of State of Haryana Versus Sher Singh, Manu SC/0236/1981, Gurcharan Singh Versus State of Punjab, Manu SC/0122/1955 and Chandrika Prasad Singh Versus State of Bihar Manu SC/0084/1971.
This could be done by leading evidence in trial court and not by relying on the material collected during investigation. In such a case the prosecution would have to be given an opportunity to cross-examine this witness can demonstrate that their testimony was not correct. The Court also in exercise of its inherent powers under Section 482 Cr.P.C. cannot consider the plea of alibi of an accused at the stage of taking cognizance, framing of charges or summoning the accused on the basis of evidence recorded during trial under Section 319 Cr.P.C. The revisionists accused will have ample opportunity to place their evidence at the appropriate stage. In this behalf the judgement of the Hon'ble Apex Court, rendered in the case of State of Orissa Versus Debendra Nath Padhi, 2004(8) Supreme Court Cases 568 be referred to. It was held:
" .....Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
The above judgement relates to the stage of claiming of discharge by the accused under Section 227 Cr.P.C. However, in view of well settled law that even at the stage of framing of charge, material in respect of plea of alibi cannot be relied upon to discharge the accused.
The power under Section 319 of the Code is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the Criminal Justice System is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power in the court to proceed against others not arrayed as accused in the circumstances set out by this Section. It is a salutary power enabling the discharge of a court's obligation to the society to bring to book all those guilty of a crime.
In the light of aforesaid, the present revision is bereft of merit. The impugned order passed by trial judge is perfectly justified and well within the guidelines/parameters laid down by Constitution Bench decision of Hon'ble Apex Court in the case of Hardeep Singh's case.
The revision is accordingly, dismissed.
Order Date :- 31.7.2019 MN/-