Dismissed

Rajvir Singh v. State of U.P. and Anr.

Allahabad HC8 Jan 2020CRLR/3015/2019

Case brief

AI extract

What is this about?

Criminal Revision filed by an accused challenging the Trial Court's order summoning him under Section 319 Cr.P.C. The Court examined precedents holding that summoning under Section 319 Cr.P.C. requires strong cogent evidence and can be done even without cross-examination. Finding no error in the order, the revision was dismissed.

What did the court decide?

Revision dismissed; interim order vacated; judgment certified to lower court.

Rajvir Singh Vs State of U.P. and Anr. — Civil Procedure and Limitation | Allahabad HC (2020)

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Court No. - 80

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Case :- CRIMINAL REVISION No. - 3015 of 2019

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Revisionist :- Rajvir Singh Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Phool Singh Yadav,Ajai Kumar Counsel for Opposite Party :- G.A.,Jai Bahadur Singh,P.K. Singh

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Hon'ble Rajendra Kumar-IV,J.

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Heard Sri Ajay Kumar, learned Counsel for revisionist, learned AGA for State, Sri Jai Bahadur Singh, learned Counsel for opposite party no.2 and perused the material available on record.

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Revision is directed against the impugned order dated 28.05.2019 passed by 3rd Additional District and Sessions Judge / Special Judge (DDA), Buduan in Special Session Trial No.24 of 2014, State versus Ajayvir and others (Case Crime No.363 of 2013), under Sections 392, 302/34, 201 and 411 IPC, Police Station Faizganj Behta, District Budaun whereby application no.19-Ka, under Section 319 Cr.P.C. moved by Bhudev Sharma Informant for summoning the accused-revisionist Rajvir Singh for trial with other accused, has been allowed.

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Brief facts of case which need to be noted for disposal of present revision are:-

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Informant Bhudev Sharma submitted written report in police station concerned stating that in the intervening night of 22/23.10.2013 at about 01:30 P.M. his brother Anshu Sharma had gone to see Ram Leela with his two brothers, during Ram Leela accused Rajvir Singh, Ajayvir, Anil, Tippu and Gajraj @ Rajesh made his brother (Anshu Sharma-victim) drink and took him with motorcycle on the pretext of drink more in his

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presence. His brother never came back home. He along-with his family members searched all the relatives and possible places. On 28.10.2013, he came to know through newspaper 'Amar Ujala' that a dead body was found in the bushes of a jungle next to the Railway Station, he reached there; police was also present on spot and he identified the dead body as of his brother Anshu Sharma, seeing his clothes. On his application, case crime no.363 of 2013 was registered against the five accused persons. Matter was investigated by Investigating Officer who submitted charge sheet against Ajayvir and Anil but exonerated the present revisionist.

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After framing charge, prosecution examined witness of fact and others as formal. Informant Bhudev Sharma moved the application no.19Ka which was allowed by the Court.

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Prosecution witness, Bhudev Sharma, deposed that in the intervening night of 22/23.10.2013 at about 01:30 P.M his brother Anshu Sharma had gone to see the Ram Leela, he was also seeing Ram Leela. Accused Rajvir Singh, Ajayvir, Anil, Tippu and Gajraj @ Rajesh were also there, all the persons made Anshu Sharma drink there and lured him, and accused Rajvir Singh, Ajayvir Singh, Anil and Tippu took victim Anshu Sharma along-with his motorcycle. Thereafter his brother Anshu Sharma did not come back home. He searched his brother all the relatives and possible places but found no where. On 28.01.2013, he came to know through 'Amar Ujala' newspaper that a dead body was lying in the jungle next to the Railway Station, then he went there and found dead body lying, he identified the dead body as of his brother Anshu Sharam. In this way, this witness is a witness of last seen.

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Learned Counsel for the revisionist submits that revisionist is innocent and he has committed no offence. He has been falsely implicated in the present case, although he is named in the FIR but during investigation, Investigating Officer did not find any credible evidence

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against the present revisionist and submitted charge sheet against two accused exonerating the revisionist. It is further submitted that there is no recovery from the possession of revisionist and no evidence to summon the revisionist for trial.

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On the other hand, learned AGA opposed the revision and submitted that revisionist is named in the FIR. During Investigation, Investigating Officer did not collect the proper evidence and exonerate the revisionist, submitted charge sheet against other accused persons. Trial Court rightly summoned the accused invoking power under Section 319 Cr.P.C. to face the trial under Sections 302/34, 392, 201 and 411 IPC.

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

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“ Section 319. Power to proceed against other persons appearing 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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In Anil Arya v. State of U.P. and Others, Criminal Revision No. 1216 of 2005, decided on 09.09.2016 , this Court held as under :-

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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 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 (3) SCC 92, 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 crossexamination 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. I n 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 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

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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 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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The above view was followed in Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC 706 holding:

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" ... since it is a discretionary power given to the court Under Section 319 Code of Criminal Procedure and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is

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to be formed requires stronger evidence than mere probability of his complicity.”

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Recently in Shiv Prakash Mishra Vs. State of Uttar Pradesh and others (2019) 7 SCC 806 , Court relying on the above authorities as also Kailash Vs. State of Rajasthan and another (2008) 14 SCC 51, held as under:

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"The standard of proof employed for summoning a person as an Accused person under Section 319 Code of Criminal Procedure is higher than the standard of proof employed for framing a charge against the Accused person. The power Under Section 319 Code of Criminal Procedure should be exercised sparingly. As held in Kailash Vs. State of Rajasthan and another (2008) 14 SCC 51, "the power of summoning an additional Accused Under Section 319 Code of Criminal Procedure should be exercised sparingly. The key words in Section are "it appears from the evidence"."any person"."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion Under Section 319 Code of Criminal Procedure would be used by the court."

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(emphasis added)

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From the above discussion and in the light of exposition of law , 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 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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Revision lack merit and is accordingly 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 :- 8.1.2020 I.A.Siddiqui

Rajvir Singh v. State of U.P. and Anr.

Case brief

What is this about?

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Rajvir Singh v. State of U.P. and Anr.

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