Allowed

Dhanpat v. State of U.P.

Allahabad HC27 Jul 2022A482/10935/2022

Case brief

AI extract

What is this about?

This court quashed the additional sessions judge's order rejecting an application to summon an accused under Section 319 Cr.P.C. The court held that evidence strongly implicated the accused, warranting a remand to the lower court to decide afresh.

What did the court decide?

Impugned order dated 07.12.2021 quashed; matter remitted to consider Section 319 Cr.P.C. application afresh within two months.

Dhanpat Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 83

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Case :- APPLICATION U/S 482 No. - 10935 of 2022

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Applicant :- Dhanpat Opposite Party :- State of U.P. Counsel for Applicant :- Prashant Sharma,Pankaj Sharma Counsel for Opposite Party :- G.A.,Satish Solanki

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Hon'ble Gautam Chowdhary,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State, Sri Rahul Pandey, learned counsel holding brief of Sri Satish Solanki, learned counsel for the opposite party no.2 and perused the material on record.

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The present application under Section 482 Cr.P.C. has been field for quashing the order dated 07.12.2021 passed by learned Additional Sessions Judge, Court No.2, District Hathras in Sessions Trial No. 171 of 2019 (State Vs. Amit @ Kaalu and others) under Sections 302, 120-B I.P.C. Police Station Hathras Gate, District Hathras, whereby application under Section 319 Cr.P.C. filed by the informant-applicant has been rejected.

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Learned counsel for the applicant submits that the applicant is the first informant of the case, who had lodged a F.I.R. in Case Crime No.0249 of 2018 under Sections 147, 148, 149, 452, 307, 506 I.P.C. with the averments that in the intervening night of 22/23.02.2018, his son Naveen aged about 25 years was sleeping in a room and that the opposite party no.2 Bani Singh along with his associates entered into the room, thereafter they slit his throat and ran away. The son of the informant later on died. Learned counsel further submits that the informant has named the accused Bani Singh in the F.I.R. as well as in the statements of witnesses recorded under Section 161 Cr.P.C. but the investigating officer has dropped the name of named accused Bani Singh in the charge sheet, whereas the Investigation Officer charged sheeted the other sons of the informant namely, Amit @ Kaalu, Sanjay and Smt. Shoba Devi, the daughter-inlaw of the informant. Learned counsel further submits that since the the accused Bani Singh was named in the F.I.R. as a person, who has committed the offence but the investigating officer has dropped him in charge sheet as such, the

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applicant moved an application under Section 319 Cr.P.C. for summoning the accused Bani Singh to face trial under the charged Sections. The learned Additional Sessions Judge, Court No.2, District Hathras, vide order dated 07.12.2021 has illegally rejected the application filed by the applicant. He further submits that the learned Court below did not consider the fact while rejecting the application that the informant has disclosed the name of the accused Bani Singh in the F.I.R. as well as in his statement recorded under Section 161 Cr.P.C., which was also verified in the examination-in-chief and in support of the same, the witnesses have disclosed the name of accused-Bani Singh in commission of alleged offence and thus the impugned order is illegal and is liable to be quashed by this Court.

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Per contra, learned A.G.A. as well as learned counsel for the opposite party no.2 have opposed the application and argued that there is no illegality in the order impugned which may calls for any interference by this Court in exercise of powers conferred under 482 Cr.P.C. jurisdiction.

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The Hon'ble Apex Court in the case of Ram Pal Singh and others Vs. State of U.P. and another, reported in 2009(75) AIC 4 (SC) , wherein Hon'ble Apex Court has held that all that is required by Court for invoking its powers under Section 319 of Cr.P.C. is, to be satisfied that from the evidence adduced before it, a person against whom no charge has been framed, but whose complicity in the offence appears to be clear, should be tried together with the other co-accused. Discretion is left with the Court to take a decision in the matter. It is further held that where prosecution witnesses had named appellants as persons, who were involved in the commission of offence, though they were not named in the charge sheet, trial court was not justified by rejecting the application under Section 319, Cr.P.C.

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The issue regarding exercise of powers under Section 319 Cr.P.C. has recently been considered by Hon'ble Apex Court in case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and Others (Criminal Appeal No. 1105 of 2019), decided on 23rd July, 2019, and it was held as under:-

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"9. The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed

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for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51, the power of summoning an additional accused under Section 319 Cr.P.C. 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 Cr.P.C. would be used by the court."

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As held by the Constitution Bench in para (105) in Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92 , the power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly which reads as under:-

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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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106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of crossexamination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence is clear from the words for which such person could be tried together with the accused. The words used are not for which such person could be convicted. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.

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The above view was followed in case of Brijendra Singh and others Vs. State of Rajasthan 2017 (7) SCC 706 and and it was held as under:-

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''13. In order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated:

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.. However, since it is a discretionary power given to the court under Section 319 CrPC 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 to be formed requires stronger evidence than mere probability of his complicity .

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Keeping in view the above cited law as well as perusal of record shows that accused-opposite party no.2-Bani Singh was named in F.I.R. but he was not charge sheeted. During the trial, in the depositions of informant as well as other

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witnesses have inter-alia stated that the accused Bani Singh has slit the throat of deceased, due to which he died.

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Considering above discussed position of law and material on record it is apparent that the trial is going on under Sections 302, 120-B I.P.C. and that there is sufficient evidence against opposite party no.2 Bani Singh to justify his summoning under section 319 Cr.P.C but the learned Court below has rejected the application under Section 319 Cr.P.C. filed by the applicant without considering the factual and legal aspect of the matter.

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In view of evidence on record and all the attending facts and circumstances of the case, this Court is of the opinion that the impugned order cannot be sustained.

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Accordingly, the impugned order dated 07.12.2021 is quashed and the matter is remitted to the concerned Court below to consider and decide the application under Section 319 Cr.P.C. afresh, in accordance with law, preferably within a period of two months from the date of production of a certified coy of the order before it.

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With the aforesaid directions, the instant application stands disposed off.

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Order Date :- 27.7.2022 S.Ali

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Digitally signed by SHAUKAT ALI Date: 2022.07.28 16:33:46 IST Reason: Location: High Court of Judicature at Allahabad

Dhanpat v. State of U.P.

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Dhanpat v. State of U.P.

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