Disposed

Mahendra @ Mahendra Prasad and 3 Others v. State of U.P. and Another

Allahabad HC26 May 2022A482/12388/2022

Case brief

AI extract

What is this about?

High Court rejected application under Section 482 CrPC seeking quashing of summons under Section 319 CrPC. Court held evidence showed sufficient prima facie case and no abuse of process occurred, but directed consideration of bail applications if applicants surrender.

What did the court decide?

Refused prayer for quashing; directed consideration of bail applications if applicants surrender within 30 days.

Mahendra @ Mahendra Prasad and 3 Others Vs State… — Criminal Trial and Appeal | Allahabad HC (2022)

¶1

Court No. - 70

¶2

Case :- APPLICATION U/S 482 No. - 12388 of 2022 Applicant :- Mahendra @ Mahendra Prasad And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vimal Kumar Pandey Counsel for Opposite Party :- G.A.

¶3

Hon'ble Raj Beer Singh,J.

¶4

Sri Pankaj Kumar Yadav, Advocate has filed vakaltnama on behalf of opposite party no.2, which is taken on record.

¶5

Heard learned counsel for the applicants, learned counsel for opposite party no.2 and learned A.G.A for the State.

¶6

The instant application under Section 482 CrPC has been filed for setting aside the order dated 15.04.2022, passed by Additional Sessions Judge, Court No.3, Kushi Nagar at Padrauna in S.T. No.93/2018, under Section 323, 304, 308 IPC, P.S. Nebua Naurangiya, District Kushi Nagar at Padrauna, whereby, the applicants have been summoned under Section 319 CrPC to face trial.

¶7

It has been argued by the learned counsel for the applicants that the impugned order is against facts and law and thus, liable to be set aside. The first information report of this case was lodged by opposite party no.2 against applicants and co-accused Harilal and Prince but during investigation, the involvement of applicants was not found and thus, they were exonerated. Learned counsel has referred the statements of P.W. 1 Samullah Ansari and P.W. 2 Ibrahim and submitted that there is no credible evidence against applicants but despite that the applicants have been summoned under Section 319 CrPC on the basis of statements of those witnesses. It was also submitted that in his statement under Section 161 CrPC, the first informant has not named the applicants and thus, his statement made in the court regarding applicants is not reliable. It has further been submitted that applicants have been falsely named merely because they are closely related to co-accused Harilal and Prince and that no prima facie case is made out against applicants and thus, impugned order is liable to be set aside.

¶8

Learned A.G.A. and learned counsel for opposite party no.2 have opposed the instant application and argued that in their statements during trial, P.W.1 Samullah Ansari and P.W.2 Ibrahim have clearly stated that applicants were involved in the incident of assaulting the deceased. It was submitted that deceased has sustained several injuries and that court below has already issued N.B.Ws against applicants. It was submitted that applicants have been summoned under Section 319 CrPC on the basis of evidence and it is clear from the medical examination report that deceased was brutally assaulted by applicants and co-accused. It has been submitted that there is no illegality or perversity in the impugned order.

¶9

By the impugned order, the application filed by prosecution under Section 319 CrPC has been allowed and applicants have been summoned to face trial along with co-accused persons.

¶10

Before considering the merits of the contention, it would be relevant to refer Section 319 Cr.P.C. which reads as under:-

¶11

"319. Power to proceed against other persons appearing to be guilty of offence. (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.

¶12

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

¶13

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

¶14

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

¶15

"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 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."

¶16

10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power under Section 319 Cr.P.C. is discretionary and is to be exercised sparingly which reads as under:-

¶17

"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.

¶18

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 cross-examination, 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 CrPC. In Section 319 CrPC 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."

¶19

11. The above view was followed in Brijendra Singh as under:-

¶20

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

¶21

Keeping in view the above cited law, in the instant case, perusal of record shows that during trial, complainant/P.W.-1 Samullah Ansari has made statement to the effect that on account of old enmity, accused Harilal, Prince and applicants Mahendra @ Mahendra Prasad, Shailendra @ Amit Gautam, Jitendra and Subhanee @ Satyendra have assaulted his brother (deceased) with lathi and sticks and that deceased was taken to hospital and during treatment on second day he succumbed to injuries. Similarly P.W.2 Ibrahim has also made similar statement that deceased was attacked by applicants and co-accused Hari Lal and Prince. Both the witnesses have been cross-examined. P.W.3 Jitendra Jaiswal has also supported that version. The trial court has made detail discussion of the evidence and that impugned order was passed after considering all relevant facts and law. No patent illegality or perversity could be shown in the impugned order.

¶22

It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter-alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of Cr.P.C. are very wide but the very plenitude of the power requires great caution in its exercise. Such powers have to be

¶23

exercised only to give effect to any order under Cr.P.C. to prevent abuse of the process of any court and to secure the ends of justice. In the instant case no such eventuality could be shown.

¶24

The instant application under Section 482 CrPC lacks merit and thus the prayer for quashing of impugned order is refused.

¶25

However, it has been pointed out that applicant no.2, 3 and 4 are real brothers and that applicant no.1 is also related to them and that co-accused is on bail. Considering the facts of the matter and submissions of learned counsel for the parties, it is directed that in case, applicants appear and surrender before the court below within 30 days from today and apply for bail, their bail applications shall be considered and decided expeditiously, in accordance with settled law.

¶26

With the aforesaid observations, the instant application is disposed of finally.

¶27

Order Date :- 26.5.2022/Neeraj

¶28

Digitally signed by NEERAJ KUMAR SINGH Date: 2022.06.03 13:36:27 IST Reason: Location: High Court of Judicature at Allahabad

Mahendra @ Mahendra Prasad and 3 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Mahendra @ Mahendra Prasad and 3 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Siddharth Singh and 5 Others Vs State of U.P. and Another

Saurabh @ Saurabh Saini Vs State of U.P.and Another

Nazma Khatoon and 4 Others Vs State of U.P and Another

Uma Shankar Prasad Vs State of U.P. and Another

Anil Chaudhary Vs State of U.P. and Another

Vinod Kumar Vs State of U.P and Another