Devendra Singh Vs State of U.P. and Another

Court No. - 67

Case :- CRIMINAL REVISION No. - 1201 of 2022

Revisionist :- Devendra Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Babu Lal Ram,Gyanendra Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Heard Sri Babu Lal Ram, learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

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By means of the present revision the revisionist is assailing the legality and validity of the judgement and order dated 07.03.2022 passed by the Additional Sessions Judge, (FTC) Court No. 1/Special Judge (Gangster Act), Mainpuri in Sessions Trial No. 411 of 2016 (State Vs. Awadhesh Kumr) in Case Crime No. 80 of 2016, Under Section 302 IPC, Police Station Aunchha, District Mainpuri whereby in exercise of power under section 319 Cr.P.C. the revisionist-Devendra Singh was summoned to face the trial alongwith other named accused persons in S.T. No. 411 of 2016.

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Submission made by learned counsel for the revisionist is that an F.I.R. was registered on 16.05.2016 by one Adesh Kumar naming Awadhesh, Ram Pravesh and Devendra Singh as an accused. The police after holding an indpet probe into the matter have submitted the report under section 173(2) Cr.P.C. have discounted the name of the revisionist from the chargesheet. It is alleged by learned counsel for the revisionist is that on date and time of the incident the revisionist was not even present near the site place of occurrence. Meaning thereby a plea of alibi has been raised by that, however, in the statement of PW-1 Adesh Kumar and PW-2 Arvind Kumar, the name of the revisionist has figured up and thereafter, application under section 319 Cr.P.C. was moved by the prosecution on 22.10.2021 requesting to the court that revisionist-Devendra Singh son of Nauratan @ Ratan Singh may be summoned in exercise of power under section 319 Cr.P.C. on which the Additional Sessions Judge, (FTC) Court No. 1/Special Judge (Gangster Act), Mainpuri has passed the impugned order dated 07.03.2022.

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I have perused the order impugned except the narrations of testimonies of PW-1 Adesh Kumar and PW-2 Arvind Kumar, the Additional Sessions Judge, (FTC) Court No. 1/Special Judge (Gangster Act), Mainpuri has never recorded his

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satisfaction in exercise of power under section 319 Cr.P.C. which is an imperative prerequisite for the court concerned as contemplated in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92. Moreover another judgment of Hon'ble Apex Court Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839.

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I have perused the order impugned and allegations levelled against the revisionist based on wild suspicion and conjunctures the revisionist resides separately in adjacent domestic unit, moreover learned trial Judge has not even whisper, circumstances the police has finally dropping the name of the applicant from the charge sheet.

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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 revisionist 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

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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 revisionist has further submitted that after thorough investigation the police has dropped the name of the revisionists from the chargesheet and the learned Magistrate has summoned the revisionists exercising his power u/s 319 Cr.P.C. in a cavalier fashion and without having any cogent evidence against them. Learned counsel for the revisionists in this regard 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, in which it has been held that :

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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, it has been 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 I.O. 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. revisionists) complicity has come on record".

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I have perused the order impugned and I am of the considered opinion that the order dated 07.03.2022 passed by the Additional Sessions Judge (FTC) Court No. 1/Special Judge (Gangster Act) Mainpuri is dehors of the law laid down by

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Hon'ble the Apex Court in the aforesaid judgment. Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above), therefore, impugned order dated 07.03.2022 is hereby quashed and the matter is remanded back to learned trial Judge with a direction to reconsider 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 8 weeks from today.

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With the aforesaid observations, the present revision stands disposed off.

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Order Date :- 13.4.2022 Vikram

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Digitally signed by VIKRAM SINGH Date: 2022.04.22 11:43:11 IST Reason: Location: High Court of Judicature at Allahabad

Devendra Singh v. State of U.P. and Another

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Devendra Singh v. State of U.P. and Another

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