Allowed

Mukesh and Anr. v. State of U.P. and Anr.

Allahabad HC16 Dec 2019CRLR/4231/2019

Case brief

AI extract

What is this about?

In Criminal Revision, this Court rejected the petitioners' challenge to their summon as additional accused under Section 319 Cr.P.C. holding the lower court's decision was not perverse and evidence justified their summons, while allowing them time to apply for bail.

What did the court decide?

The application was heard and the order dated 21.11.2019 was modified. No coercive action against the accused shall be taken.

Mukesh and Anr. Vs State of U.P. and Anr. — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 76

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Case :- CRIMINAL REVISION No. - 4231 of 2019

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Revisionist :- Mukesh And Anr. Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Kamal Singh Yadav,Naveen Kumar Yadav Counsel for Opposite Party :- G.A.,Imran Ullah

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Ref. : - Criminal Misc. Modification Application No. 1 of 2019

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Counter affidavit has been filed on behalf of the revisionists in Court today is taken on record.

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Heard Mr. Satish Trivedi, Sr. Advocate assisted by Sri Sheshadri Trivedi, Advocate holding brief of Sri Kamal Singh Yadav, learned counsel for the revisionists and Mr. Faiz Ahmad, Advocate holding brief of Mr. Imran Ullah, learned counsel for the opposite party no. 2 and Mr. Amit Singh Chauhan, learned A.G.A. for the State.

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On 21.11.2019, following order was passed.

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" Heard learned counsel for the revisionists, learned A.G.A. for the State and perused the record.

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This criminal revision has been preferred against the judgment and order dated 16.10.2019 passed by Special Judge (POCSO) Act/Additional District & Sessions Judge, Court No.Xth, Varanasi in Session Trial No.126 of 2016 (State Vs. Pramod Kumar Awasthi), by which the revisionists were summoned under Section 319 Cr.P.C.

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It is contended by learned counsel for the revisionists that the FIR was lodged against one Manoj for enticing away the victim but charge sheet was submitted only against co-accused Pramod Kumar Awasthi. The statements of the victim had been recorded under Sections 161 and 164 Cr.P.C. in which the victim had stated that she had gone along with co-accused Pramod Kumar Awasthi on her own sweet will, however, in a mechanical way the revisionists have been summoned under Section 319 Cr.P.C. which cannot be justified in view of following judgments :-

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(i) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638.

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(ii) Dungar & 4 others Vs. State of U.P. & another, Crl. Revision No.3735 of 2019.

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(iii) Periyasami & others Vs. S. Nallasamy, (2019) 4 SCC 342. (iv) Brijendra Singh & others Vs. State of Rajasthan, (2017) 7 SCC 706.

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The matter requires consideration.

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Notice on behalf of opposite party No.1 has been accepted by learned A.G.A.

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Issue notice to opposite party no.2 returnable within four weeks.

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Opposite party no.2 may file counter affidavit within four weeks. Learned A.G.A. for the State may also file counter affidavit within the same period. Rejoinder affidavit may be filed by the revisionists' counsel within two weeks thereafter.

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List this matter immediately after expiry of the aforesaid period before the appropriate Bench.

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Till the next date of listing, no coercive action shall be taken against the revisionists in the aforesaid case."

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A modification application has been moved by the State on the ground that the statement of the victim before the trial court was not taken into consideration while passing the order dated 21.11.2019. Only the statement of the victim under Section 161 and 164 Cr.P.C. was taken into consideration while passing the aforesaid order. However, the statement of the victim before the trial court clearly reveals that there are compelling circumstances before the learned trial court to summon the revisionist along with the co-accused Manoj to face trial.

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Learned counsel for the revisionists has also tried to point out certain infirmities in the evidence which has been made the basis to summon the accused-revisionists under Section 319 of Cr.P.C. The factual controversies have been raised and certain submissions which are more in the nature of ultimate defence that the accused may finally take to show their innocence, have also been made. The plea that the accused-revisionists has been falsely implicated, has also been taken. Learned counsel for the revisionists has not been able to point out any such illegality or impropriety or incorrectness which may persuade this Court to interfere in either of the impugned orders. There is no abuse of court's process perceptible in the same. The relevant facts and circumstances of the case have been appreciated in right perspective. The relevant law also have been taken into consideration by the lower revisional court. This Court also

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does not see any such element of perversity in either of the impugned orders. The evidence has been produced during the course of trial appears to have been sufficient to justify the summoning of the revisionists as additional accused. There does not appear to be any element of perversity in the impugned orders. As per law that has been laid down by the Constitutional Bench of the Apex Court's in the case of Hardeep Singh vs. State of Punjab and others , 2014 (3) SCC-92 , though the standard of sufficiency of evidence which may justify the summoning of the accused under Section 204 of Cr.P.C. is on a different footing than the standard of sufficiency that would justify the summoning under Section 319 of Cr.P.C. But that does not go to mean that the standard to justify the summoning under Section 319 of Cr.P.C. should be the same which is required to be employed at the time of final adjudication on the point of guilt or innocence of an accused. Considerations to summon an accused to face trial are different from the considerations which should ultimately vindicate the conviction of an accused. In the present matter in hand, it cannot be said that the evidence as was available on record does not justify the summoning of the revisionists as additional accused under Section 319 of Cr.P.C. or that the ratio and the guidelines as have been provided by the Apex Court in its decision given in the case of Hardeep Singh's case (supra), have not been followed.

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In the considered opinion of this Court, the application has no merits and there is no justifiable reason to interfere in the impugned order. The prayer to quash the impugned order is therefore, refused.

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However, it is observed that if the bail has not been obtained as yet, the accused-revisionists may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).

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In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.

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It is further clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.

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With the aforesaid observations, the order dated 21.11.2019 is modified and accordingly, this application is finally disposed of.

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Let a copy of this order be communicated to the concerned court below by the Registrar General immediately.

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Order Date :- 16.12.2019 Priya

Mukesh and Anr. v. State of U.P. and Anr.

Case brief

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Mukesh and Anr. v. State of U.P. and Anr.

Case brief

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