Dismissed

Nisha v. State of U.P. and Another

Allahabad HC4 Dec 2019CRLR/1452/2017

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision challenging the summoning of an accused under Section 319 Cr.P.C. The bench held that evidence in examination-in-chief suffices for summoning and the standard of satisfaction matches that for framing charges.

What did the court decide?

Leave to revise was dismissed; impugned order summoning the petitioner under Section 319 Cr.P.C. was upheld.

Nisha Vs State of U.P. and Another — Matrimonial and Divorce | Allahabad HC (2019)

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Court No. - 80

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Case :- CRIMINAL REVISION No. - 1452 of 2017 Revisionist :- Nisha Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Chandra Kant Bharadwaj,Anupama Parashar,Satendra Kumar Upadhyay Counsel for Opposite Party :- G.A.

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Hon'ble Rajendra Kumar-IV,J.

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Heard Sri Satendra Kumar Upadhyay, learned Counsel for revisionist, learned AGA for State and perused the material available on record.

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Revision is directed against the impugned order dated 06.04.2017 passed by Additional District and Sessions Judge / Fast Track Court No.3, Bulandshahar wherein application no.44-B, under Section 319 Cr.P.C. moved by Wazeer Khan Informant for summoning the accused-revisionist Nisha for trial with other accused has been allowed in Session Trial No.677 of 2015, State versus Siraj and others (Case Crime No.86 of 2015), under Sections 498-A, 304-B, 201 IPC and 3/4 D.P. Act, Police Station Naraura, District Bulandshahar.

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Brief facts given rise to present revision are that Informant lodged an FIR bearing case crime no.86 of 2015, under Sections 498-A, 304-B IPC and 3/4 D.P. Act against Siraj, Choti, Salman, Mustaq and Nisha alleging that his daughter Rukshana was married to Siraj prior to five years as per Muslim Rites but accused persons were not happy with the dowry given in the marriage, they started torturing her. After a panchayat, he has given Rs.10,000/- and Rs.50,000/- to them respectively but even then they were not satisfied and demanded four wheeler. On 31.05.2015, his daughter came to his matrimonial house and told that if four wheeler was not given to him, her in laws will take her life. It is further stated in FIR that one Owais Khan and others told him that his daughter was burnt by her in laws. On the basis of FIR, case was registered against the

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accused persons. Matter was investigated by Investigating Officer and charge sheet against four persons, except present revisionist was submitted in Court.

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After framing charge, prosecution examined two witnesses as witness of fact and four others as formal. Informant Wazeer moved the application no.44-B which was allowed by the Court.

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Feeling aggrieved and dissatisfied with the impugned order, present revision is filed.

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Learned Counsel for revisionist submits that trial Court did not appreciate the evidence in right perspective at the time of disposal of paper no.44-B and passed a wrong order which is bad in law. There is no any evidence against the accused revisionist to summon her for facing trial. It is further submitted that Informant has been examined as PW-1; he supported the prosecution in examination-in-chief but in cross examination he did not support the prosecution and turned hostile. Accused-revisionist is Nand of deceased she has no concerned with the present case. She is not beneficiary of any dowry. She has been falsely implicated. Investigating Officer did not find any evidence against her and submitted charge sheet exonerating her. On the ground above, learned Counsel for revisionist sought indulgence of this Court and prayed that revision be allowed by quashing the impugned order.

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Learned AGA opposed the revision and submitted that present accused-revisionist along-with other co-accused harassed the victim in demand of dowry. Victim was subjected to death by burn injury caused by accused persons within seven years of marriage and there are sufficient evidence against her for summoning to face trial.

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Section 319 of The Code Of Criminal Procedure, 1973 reads as under :-

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Power to proceed against other persons appearing

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to be guilty of offence.

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(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

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(2)Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

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(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

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(4) Where the Court proceeds against any person under sub- section (1), then-

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(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

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(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

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Accused-revisionist is named in the FIR. During trial PWs 1 and 2 supported the prosecution case. PW-2 Sabir stated that on 04.06.2013 at about 05:00 AM, he went to the house of Sahid, he heard the noise of bachau bachau from the house of Rukshana, as he entered into her house, he saw that Siraj, Choti Begum, Mustaq, Salman and Nisha (nand / present revisionist) were quarrelling and beating Rukshana and they were saying that they would fix her today, this happend before him, he tried to save her but accused persons were many in number, therefore, he could not succeed. Before him all the accused persons poured kerosene oil and set her at fire and ran away from house. Later on he (PW-2) informed Wazeer Khan telephonically.

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Whether 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

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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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In Hardeep Singh Vs. State of Punjab and others 2014

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(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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12.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

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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 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 chargesheet.

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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-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

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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 cross-examination 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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Interim order, if any, stands vacated.

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Certify this judgment to the lower Court immediately.

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Order Date :- 4.12.2019 I.A.Siddiqui

Nisha v. State of U.P. and Another

Case brief

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Nisha v. State of U.P. and Another

Case brief

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