Court No. - 49
Case :- CRIMINAL REVISION No. - 2293 of 2018 Revisionist :- Satpal Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Anubhav Shukla,Pawan Kumar Rai Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Sri Ankur Tandon, Advocate has filed his appearance on behalf of the opposite party no.2, is taken on record.
Heard learned counsel for the revisionist, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
The present revision has been filed to against the order dated 08.05.2018 passed by the Additional District and Sessions Judge, Hapur, in Session Trial No. 425 of 2017 (State Vs. Dabbu @ Naresh), arising out of Case Crime No. 320 of 2016, under Sections 498-A, 304-B, 316, IPC and 3/4 D.P. Act, Police Station Dhaulana, District Hapur.
At the out set learned counsel for the opposite party no.2 states that in case of co-accused, the criminal revision No.1854 of 2018 has already been disposed of by order dated 12.07.218 passed by this Court. For ready reference the order is quoted herein below:-
"Heard learned counsel for the applicant, learned A.G.A. for the State and learned counsel for the opposite party no. 2.
The present criminal revision has been filed against the order dated 8.5.2018 passed by the Additional District and Sessions Judge, Hapur under Section 319 Cr.P.C. by which the present applicant had been summoned as an accused to stand trial for the offence alleged under Section 498-A, 304-B and 316 I.P.C. read with Section 3/4 D.P. Act arising from the death of one Neeraj.
Learned counsel for the applicant has vehemently urged that in the first place, it is a case of suicidal hanging as is borne out from the postmortem report. Second, it has been submitted that the applicant is a distant relative of the main accused with whom the opposite party no. 2 is in civil litigation since long. Third, it has been submitted that the learned court below had not recorded its satisfaction as required in terms of the judgement of the Supreme Court in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) 7 SCC 706.
Opposing the application, learned counsel for the opposite party no. 2 submits that the cause of death is a subject matter of trial and no conclusion can be drawn at this stage in these proceedings as that would be pre-mature exercise of power by this court. The postmortem report and all other attending facts and circumstances would have to be seen together before a firm opinion may be drawn as to the cause of death.
Then, as to the stand taken by the learned counsel for the applicant that the applicant is a distant relative of the husband of the deceased, it has been contended that the learned court below, upon consideration of the material and evidence that exists as on date had observed that at present, it appears that applicant was also residing with the main accused.
As to the lack of satisfaction, it has been submitted that though it is true that for the purpose of valid exercise of power under Section 319 Cr.P.C., the trial court must record its satisfaction in terms of the law laid down by the Supreme Court in the case of Brijendra Singh and others Vs. State of Rajasthan (supra), however, there is no prescribed proforma for recording such satisfaction.
He then contends that in the instant case, the learned court below had recorded its satisfaction which is clear from the observations made by it upon consideration of the material that had noted by the first part of the order. He further submits the fact that the learned court below had recorded its tentative observations as to the joint living of the applicant with the main accused as also the manner in which the deceased had been done to death, he contends that the satisfaction of the learned court below is writ large on the face of the order. Merely, because the learned court below had not stated in so many words that he felt satisfied to summon the applicant under Section 319 Cr.P.C. cannot be a reason to contend that the learned court below had not recorded its satisfaction.
Having considered the arguments advanced by the learned counsel for the parties, it appears that insofar as the cause of death is concerned, it would be pre-mature for this court to reach any conclusion. The cause of death whether it was suicidal hanging or homicidal hanging is a matter that the trial court may examine upon evidence being received and matter being heard at length. Insofar as the joint living of the applicant is concerned, at present, sufficient reason exists on the impugned order as are suggestive that the learned court below felt satisfied on that count, inasmuch as while reaching that conclusion, the learned court below had referred to the evidence received by it, and thereafter made a tentative observation that at this stage, it appears that the applicant had a joint living with the main accused.
As to the last objection raised by the learned counsel for the applicant, it is true that the satisfaction is sine qua non to be recorded by the learned trial court before the person may be summoned as an accused under Section 319 Cr.P.C. It is equally true that the degree of satisfaction has to be higher than that required for the purposes of taking cognizance. However, whether or not such satisfaction exists depends on the facts of each case that comes in such proceedings.
In the instant case, it appears that evidence had been received by the trial court which it has appeared to the trial court, at this stage, that the applicant be tried as an accused. Such testimony, if true, clearly indicates that the applicant was actively involved in the commission of the offence. The learned trial court having recorded its satisfaction on the basis of such material, it cannot be said that the order passed by it does not satisfy the test laid down by the Supreme Court in the case of Brijendra Singh and others Vs. State of Rajasthan (supra).
Needless to add once the applicant appears before the trial court, the entire evidence would be recorded afresh and the applicant would have right to cross-examine such witnesses and disprove their testimony.
With the aforesaid observations, the present application is finally disposed of."
Learned counsel for the applicant seeks indulgence of the court, in view of the facts to present case and the case of co-accused Sanjeev by relying the certain case diary material.
So far as the present application has arisen from the same order under Section 319 Cr.P.C. it deserve the same fate.
Learned counsel for the applicant however, lastly submits that some indulgence may be granted with respect of bail.
In view of the entirety of facts and circumstances of the case, it is directed that in case the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. With the aforesaid directions, this application is finally disposed of. Order Date :- 25.7.2018/VKG