Remanded

Dharampal and Anr. v. State of Up and Another

Allahabad HC7 Aug 2020CRLR/856/2020

Case brief

AI extract

What is this about?

The High Court remanded the matter to the trial court for a de novo consideration of an order summoning additional accused under Section 319 Cr.P.C., directing the trial judge to apply the stringent Apex Court standards for exercising such extraordinary power and to pass a well-reasoned order immediately.

What did the court decide?

The impugned order dated 01.02.2020 was set aside; the matter was remanded to the learned trial judge to reconsider and decide within eight weeks. No coercive action against petitioners during this pe

Dharampal and Anr. Vs State of Up and Another — Criminal Trial and Appeal | Allahabad HC (2020)

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Court No. - 67

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Case :- CRIMINAL REVISION No. - 856 of 2020

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Revisionist :- Dharampal And Anr. Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Mayank Yadav,Vivek Kumar Singh Counsel for Opposite Party :- G.A.,Omvir Singh Rajpoot

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Hon'ble Rahul Chaturvedi,J.

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Heard learned counsel for the revisionists, learned counsel for opposite party no.2 as well as learned A.G.A. for the State and perused the record.

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The instant criminal revision has been filed to set-aside the order dated 01.02.2020 passed by learned Additional Sessions Judge, Anoopshahr, Bulandshahr in Sessions Trial No.744 of 2018(arising out of case crime no.184 of 2018) State V. Ramji Lal and others, under section 306 IPC, Police StationDebai, District-Bulandshahr.

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Learned counsel for the revisionists submitted that the present revision is targeted against the order passed by learned Additional Sessions Judge, Anoopshahr, Bulandshahr by which the prosecution's application No.16-B under section 319 Cr.P.C. was partly allowed summoning the revisionist Dharampal(devar) and Surajpal(Nandoi) calling upon them to face the prosecution under section 306 IPC fixing the date i.e. 14.02.2020. It is next contended that revisionists have not yet surrendered and consequently, nonbailable warrant has been issued against them fixing 10.08.2020 as next date fixed.

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Contention raised by learned counsel for the revisionists is that for an unfortunate incident, one Vijay Kumar Mathuriya has lodged the FIR against the revisionist along with five other persons for commission of offence under sections 147, 307, 494, 120B IPC, Police Station-Anoopshahr, DistrictBulandshahr in case crime no.0184 of 2018.

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The long and short of the case, is that the informant's younger sister got married with one Prempal about 15 years back according to Hindu rites and rituals. But unfortunately, couple were issueless and despite of all objections, Prempal got married second time on 08.02.2018. On the fateful day i.e. on 29.04.2018 around 11:00 in the night, revisionist no.2 along with his wife Shimla hatched conspiracy and all the family member tried to grab the neck of the girl. Failed in this effort, they have sprinkled kerosene oil upon her and set her ablaze. In the FIR, it has been mentioned that omnibus role has been assigned to all the accused persons in commission of the offence. After registering the FIR, police has started investigation and on 17.08.2018 has submitted the charge sheet against Ramji Lal(father-in-law) and Prempal(husband). The investigation was pending against Smt. Rajwati and Smt. Brijesh and police in his own wisdom and after collecting the material, has dropped the name of Dharampal and

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Surajpal from the array of charge sheet. It is further submitted that now charge sheet has been submitted against Smt. Rajwati and Smti. Brijesh and they are languishing in jail. After commission of the offence, the matter was referred to the Court of sessions as S.T. No.744 of 2018. Thereafter, Sri Vijay Kumar Mathuriya and Sri Rajendra Kumar Mathuriya were examined as PW-1 and PW2 respectively. Soon after recording of the statement, an application under section 319 Cr.P.C. was moved to summon all the non-accused persons to face the trial and by means of impugned order dated 01.02.2020, the said application 16-B was partly allowed summoning the revisionists to face the trial under section 306 IPC.

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Learned counsel for the revisionist has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C.

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"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

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105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not 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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Learned counsel for the revisionists has further drawn the attention of the Court to para-12 of the above judgement:

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12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one,is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused.

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Learned counsel for the revisionists has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019.

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"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused. "

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Moreover, in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017 has stated that," Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record".

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Thus, perusing the impugned order, I have no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above) and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of eight weeks from today.

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Till then, no coercive action shall be taken against the revisionists in pursuance of order dated 01.02.2020 passed by learned Additional Sessions Judge, Anoopshahr, Bulandshahr in Sessions Trial No.744 of 2018(arising out of case crime no.184 of 2018) State V. Ramji Lal and others, under section 306 IPC, Police Station-Debai, District-Bulandshahr

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With the aforesaid observations, this criminal revision stands disposed of.

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Order Date :- 7.8.2020 Sumit S

Dharampal and Anr. v. State of Up and Another

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Dharampal and Anr. v. State of Up and Another

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