Dismissed

Sanjeev Kumar and Another v. State of U.P. and Another

Allahabad HC5 Dec 2019CRLR/1057/2018

Case brief

AI extract

What is this about?

Criminal Revision against an order summoning additional accused persons. The High Court held that the Trial Court correctly exercised its power under Section 319 Cr.P.C. based on witness examination-in-chief, without waiting for cross-examination, ruling no error warranting interference.

What did the court decide?

Criminal Revision dismissed; impugned summoning order of Trial Court affirmed.

Sanjeev Kumar and Another Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 80

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Case :- CRIMINAL REVISION No. - 1057 of 2018

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Revisionist :- Sanjeev Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sushil Dubey Counsel for Opposite Party :- G.A.,Katyayini

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Hon'ble Rajendra Kumar-IV,J.

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Heard Sri Sudhil Dubey, learned counsel for the revisionists, Ms. Katyayini, learned counsel for the respondents and learned AGA for the State.

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This criminal revision has been filed against the order dated 22.3.2018 passed by Additional Sessions Judge, F.T.C., Court No. 1 Mainpuri in S.T. No. 330 of 2016, Case Crime No. 144 of 2016 (State vs. Shakuntala Devi and others), under Sections 498-A, 304-B I.P.C. and 3/4 D.P. Act, P.S. Bewar, District Mainpuri.

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Brief facts giving rise to the present revision are that a First Information Report was lodged by Informant Akhilesh Kumar in police station concerned under Sections 498-A and 304-B I.P.C. stating therein that his sister Shashi was married to Abhishek Kumar on 24.6.2011. Accused persons used to harass her for demand of dowry. She took last breath on 26.4.2016. When informant went to her house, he came to know that her sister was subjected to death by Sanjeev Kumar, Shivani Devi, Shakuntala and Abhishek Kumar in demand of dowry and all the accused persons ran away from spot. Dead body of Shashi was lying in her house. The matter was investigated by Investigating Officer, who after investigation, submitted charge sheet against the accused persons exonerating the present accused revisionists.

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Trial Court examined PW-1 Akhilesh Kumar (informant) and PW-2 Nand Ram. Both the witnesses supported the prosecution case

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giving evidence even against the present revisionists. On the application made by informant Akhilesh Kumar, Trial Court passed the impugned order and summoned the accused for facing trial under Sections 498-A and 304-B I.P.C. and 3/4 D.P. Act

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Learned counsel for the revisionists submits that accusedrevisionists are Dewar and Dewrani of deceased. They had not concerned with her. They are not beneficiary with any demand of dowry. They were living separately at the time of incident. They did not make any torture or any demand of dowry. They have been falsely implicated in the present case. Even Investigating Officer did not find any evidence against revisionists, therefore, they have not been charge sheeted by the Investigating Officer.

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Learned AGA supporting the impugned order, vehemently opposed the prayer and submitted that accused-revisionists are named in F.I.R. and close relative to husband of deceased. They tortured her in order to demand of dowry. They committed her murder within seven years of her marriage.

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Statement of PW-1 and PW-2 clearly show that demand of dowry was made by accused persons and victim was tortured and harassed in order to demand of dowry. The victim died in her in-laws house and her death was under the unnatural circumstances within seven years of her marriage.

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Whether this evidence is correct or not or credible enough or not to sustain conviction and punishment is a matter which would be seen after revisionist put in appearance, lead evidence and thereafter Trial Court examine the entire evidence and record its finding thereon,but at the stage of summoning of revisionist on the basis of aforesaid statement in Trial under Section 319 Cr.P.C., the probable defence of accused summoned under Section 319 Cr.P.C. cannot be examined for the first time in a revisional jurisdiction by this Court.

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9. In Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92 wherein Court examined following five questions:

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"(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?

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(ii) Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

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(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?

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(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

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(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"

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The aforesaid questions have been answered in para 117 of judgment as under:

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Question Nos. (i) and (iii)

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A. In Dharam Pal and Ors. v. State of Haryana and Anr. 2004 (13) SCC 9, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.

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Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing

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of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

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In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

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Question No. (ii)

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A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

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Question No. (iv)

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A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

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Question No. (v)

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A. A person not named in the FIR or a person though named in the FIR but has not been charge-

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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. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.

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The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge-sheet is filed by Police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for crossexamination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C, Court has said that test are same as applicable for framing charge.

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From the above discussion, it is clear that order of summoning has been passed by Court below in view of evidence placed before it in the form of statement of informant-PW-1 and PW-2 along with other material. I, therefore, do not find any legal or otherwise error in the impugned summoning order warranting interference in this criminal revision.

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Dismissed.

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Certify this judgment to the lower Court immediately.

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Order Date :- 5.12.2019 Manoj

Sanjeev Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Sanjeev Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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