This revision has been preferred against the order dated 4.2.2010 passed by the learned Additional Sessions Judge, Court No.1, Mau in S.T. No. 134 of 2009 (Case Crime No. 268 of 2009), State Vs. Ravindra @ Raghvendra and others, under Sections 302 /34, 504 & 506 I.P.C., P.S. Madhuban, District Mau.
2. Brief facts of the case are that the opposite party no.2 Smt. Saroj Singh lodged a report at the police station stating that she was married to Devanand. Later on marriage could not continue and the relations of husband and wife between Smt. Saroj Singh and Devanand came to an end by the court. The opposite party no. 2 was being maintained by her mother Vijay Laxmi and was living in the village with her daughter Kumari Jyoti. On 26.2.2009 the opposite party no. 2 had gone to Madhuban to bring admit card of her daughter Jyoti, who was a student of class 10 of Subhagi Devi Higher Secondary School, Madhuwan, Mau but she could not get the admission card and came back to her house on foot managing her other affairs. When she reached her house at about 5 p.m., she saw that her daughter was hanging by a rope. When she was trying to save her daughter, suddenly Raghvendra Yadav @ Kanthi Yadav and Vikas Mall started fleeing away from the other room. The complainant requested both the accused to help her in saving her daughter but they threatened to kill the complainant and ran away with banki in their hands. Just thereafter Rana Pratap Singh @ Pinku Singh and Chandra Prakash accompanied by Santosh Kumar Singh reached the spot.
3. After investigation the Investigating Officer submitted charge sheet against Raghvendra @ Ravindra and one Ram Kishan Yadav. Charge sheet was not submitted against Vikas Kumar Mall. When the charge sheet was submitted in court, charges were framed against the accused persons and the statement of P.W.1 Smt. Saroj Singh commenced.
4. After examination-in-chief of P.W.1 Smt. Saroj was concluded, an application was moved by the prosecution to summon Vikas Mall under Section 319 Cr.P.C. The learned lower court, vide order dated 4.2.2010 summoned the accused Vikas Mall under Section 319 Cr.P.C. Feeling aggrieved the present revision has been preferred by the revisionist.
5. I have heard the learned counsel for the revisionist, learned A.G.A. for the State, and perused the record.
6. Counsel for the revisionist has argued that while passing the impugned order, the learned lower court had taken into account the statements of the witnesses recorded under Section 161 Cr.P.C., which is not permissible.
7. It is settled principle of law that the revisional jurisdiction is not as wide as the appellate jurisdiction and under the revisional jurisdiction. The High Court is required to exercise its powers where there is material irregularity or manifest error of law or procedure, or there is misconception or misreading of evidence or where the court below has failed to exercise jurisdiction vested in it or has exercised the jurisdiction wrongly and perversely or where the facts admitted or proved do not disclose any offence.
8. As a broad proposition, the interference of revisional court may be justified in cases (i) where the decision is grossly erroneous (ii) where there is no compliance with the provision of law (iii) where the finding of fact affecting the decision is not based on evidence on record (iv) where the material evidence of parties has not been considered (v) where the court below has misread or mis-appreciated the evidence on record (vi) where the judicial discretion has been exercised arbitrarily or perversely.
9. In exercise of revisional jurisdiction the court may not exercise jurisdiction to reassess the evidence and reappraisal of evidence is not permissible within the revisional jurisdiction. Hon'ble the Apex Court in A.I.R. 1999 Supreme Court 981 in the case of State of Kerela Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done".
10. In A.I.R. 2002 Supreme Court 2229 in the case of Jagannath Chaudhary Vs. Ramayan Singh, Hon'ble Apex Court has held that "revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law resulting in miscarriage of justice". Similarly In A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. State of Rajasthan and others it was held by Hon'ble Apex Court that "while exercising the revisional power the High Court has no authority to re-appreciate the evidence in the manner as the trial court and appellate courts are required to do".
11. In another case A.I.R. 1993 Supreme Court 1126, State of Karnataka Vs. Appa Balu Ingale and others, it has been held by the Hon'ble Apex Court that " generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or unless there is any perversity."
12. The learned lower court had file in hand and even the statement of complainant Smt. Saraoj Singh.
13. In para 12 and 13 of the Judgment rendered in the case of Hardeep Singh Vs. State of Punjab and others, 2014 (1) JIC 539, the Hon'ble Apex Court held as under:-
"12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.? The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of Cr.P.C. and the judgments that have been relied on for the said purpose. The controversy centers around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.
13. It would be necessary to put on record that the power conferred under Section 319 Cr.P.C. is only on the court. This has to be understood in the context that Section 319 Cr.P.C. empowers only the court to proceed against such person. The word "court' in our hierarchy of criminal courts has been defined under Section 6 Cr.P.C., which includes the Courts of Sessions, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Sessions is defined in Section 9 Cr.P.C. and the Courts of Judicial Magistrates has been defined under Section 11 thereof. The Courts of Metropolitan Magistrates has been defined under Section 16 Cr.P.C. The courts which can try offences committed under the Indian Penal Code, 1860 or any offence under any other law, have been specified under Section 26 Cr.P.C. read with First Schedule. The explanatory note (2) under the heading of "Classification of Offences" under the First Schedule specifies the expression 'magistrate of first class' and 'any magistrate' to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates."
14. The legislature cannot have presumed to have imagined all the circumstances and, therefore, it is the duty of the Government to give effect to words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by not being arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution. The Apex Court has also laid down that the provision of Section 319 Cr.P.C. can be exercised even before cross-examination of the witnesses. It has also been held that a person not named in the F.I.R. or a person though named in the F.I.R. but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C provided from the evidence it appears that such person can be tried along with the accused already facing trial.
15. Thus, I find the impugned order does not suffer from any illegality, irregularity or impropriety. There is sufficient evidence on record to summon the accused Vikas Mall under Section 302/34, 504 and 506 I.P.C. The revision is devoid of merit and is liable to be dismissed.
16. Accordingly, the revision is dismissed.
Order Date :- 7.11.2014 Ram Murti