Allowed

Rajneesh v. State of U.P. and Another

Allahabad HC28 Nov 2018CRLR/2853/2016

Case brief

AI extract

What is this about?

A single judge allowed a criminal revision challenging the summoning of a revisionist under Section 319 Cr.P.C. The High Court held that since the trial court could not review its own order rejecting a similar application on the same evidence, the impugned order was un-sustainable, and the revision was allowed against Hardeep Singh cited. The impugned order was set aside. Null disposition.

What did the court decide?

The order dated 20.08.2016 passed by Additional Sessions Judge, Shahjahanpur allowing the application under Section 319 Cr.P.C. is set aside.

Rajneesh Vs State of U.P. and Another — Allahabad HC (2018) — LawSathi Research

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Court No. - 15 Case :- CRIMINAL REVISION No. - 2853 of 2016 Revisionist :- Rajneesh Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Suresh Dhar Dwivedi Counsel for Opposite Party :- G.A.,Amarendra Nath Rai,Radhey Shyam Shukla,Sanjay Singh

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Hon'ble Umesh Chandra Tripathi,J.

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Heard learned counsel for the revisionist, learned counsel for opposite party and learned A.G.A. for the State.

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This criminal revision has been preferred against order dated 20.08.2016 passed by Additional Sessions Judge, Court No. 6, Shahjahanpur in Sessions Trial No. 221/2009 (State of U.P. vs. Nanhku and others) under Sections 304, 504 I.P.C. Police Station-Nighohi, District- Shahjahanpur, whereby application of prosecution under Section 319 Cr.P.C., was allowed and revisionist Rajneesh was summoned for the offence punishable under Sections 304, 504 I.P.C.

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Learned counsel for the revisionist contended that witnesses of fact namely Mulayam, Rajpal and Shripal have been examined and after that application under Section 319 Cr.P.C., preferred by the prosecution was rejected on 14.12.2012 by the trial court. Against the order of rejection informant Mulayam has filed Criminal Revision No. 384/13 (Mulayam vs. State of U.P. and others) which was dismissed by this court vide order dated 28.04.2015. Later on scribe of the N.C.R. Sudhir Kumar was examined as court witness. Sudhir Kumar was not the witness of the fact and after examination of Sudhir Kumar, informant Mulayam has again preferred application under Section 319 Cr.P.C. which was allowed by the impugned order. Learned counsel for the revisionist further contended that trial court cannot review its own judgment. No further evidence on fact was produced before the trial court, even so the trial court has passed impugned order, which is not sustainable.

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Learned counsel for opposite party contended that on the basis of statement of prosecution/informant Mulayam, Rajpal and Shripal offence under Sections 304 and 504 I.P.C. is made out against revisionists. Trial court has passed the impugned order on merit. N.C.R. was not lodged as per version of the informant. Informant has submitted written information but in spite of written information, his N.C.R. was lodged on verbal information excluding name of revisionist. The first application under Section 319 Cr.P.C. of the informant was rejected on the ground that scribe of the N.C.R., Sudhir Kumar was not examined.

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Learned counsel for opposite party relying on the judgment of Hon'ble Apex Court in Hardeep Singh and others v/s State of Punjab and others reported in 2014 LawSuit (SC) 22 further contended that if strong

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and cogent evidence occurs against a person from the evidence led before the court, the power under Section 319 Cr.P.C., may be exercised.

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In the case of Hardeep Singh (supra) , Hon'ble Apex Court held as follows:-

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"............[98]. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is nt 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.

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[99]. Thus, we hold that through 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 Cr.P.C. In Section 319 Cr.P.C 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 Cr.P.C to form any opinion as to the guilt of the accused."

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From perusal of material brought on record, it is evident that report of non-cognizable offence was lodged only against accused Nanhku, Kaloo, Chotkane and Pappu. Although witnesses Mulayam, Rajpal and Shripal have stated that the revisionist Rajneesh was also involve in the occurrence. On the basis of their statement, application under Section 319 Cr.P.C., was earlier rejected by the trial court. Again only on the basis of their statements trial court has passed the impugned order allowing the application U/s 319 Cr.P.C.. As the trial court has no jurisdiction to review its own order, accordingly, impugned order passed by the trial court is against the law, which is not sustainable.

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In the result, this criminal revision is allowed and the order dated 20.08.2016 passed by Additional Sessions Judge, Court No. 6, Shahjahnpur is hereby set aside.

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Order Date :- 28.11.2018/VG..

Rajneesh v. State of U.P. and Another

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Rajneesh v. State of U.P. and Another

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