Allowed

Arjun @ Arjun Singh and 3 Others v. State of U.P. and Another

Allahabad HC8 Apr 2022CRLR/428/2022

Case brief

AI extract

What is this about?

The High Court quashed an order summoning petitioners under Section 319 Cr.P.C. in a trial for culpable homicide not amounting to murder. The Court held the exercise of this extraordinary discretionary power lacked sufficient prima facie evidence and judicial satisfaction, remanding the matter for fresh consideration.

What did the court decide?

Order dated 9.9.2021 under Section 319 Cr.P.C. quashed; matter remanded for fresh order within three months.

Arjun @ Arjun Singh and 3 Others Vs State of… — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 67

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Case :- CRIMINAL REVISION No. - 428 of 2022

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Revisionist :- Arjun @ Arjun Singh And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sharique Ahmed Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Heard Sri Sharique Ahmed, learned counsel for the revisionists, learned AGA and also perused record.

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The instant revision is being filed against the illegality and validity of the order dated 9.9.2021 passed on the application under Section 319 Cr.P.C. by the learned Additional District & Sessions Judge/Special Judge (E.C. Act), Lalitpur whereby the revisionists have been summoned to face the trial in Session Case (S.T.) No.592 of 2020 (State Vs. Imrat and others) arising out of case crime no.14 of 2020, under Sections 304/34, 323/34 IPC, Police Station Saujana, District Lalitpur.

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Before assailing the illegality and validity of the order impugned, learned counsel for the revisionists has drawn the attention of this Court to the FIR lodged by Smt. Sheela on 23.5.2020 at 00.40 hours in respect of an incident which took place on 22.5.2020 at 17.00 hours under Sections 147,148,323,304 IPC against eight named accused persons including the revisionists who are nonaccused.

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From the text of the FIR it is clear that there was a dispute regarding the land of one Nathhu Raja which was earlier given for the purposes of 'shared farming' (BATAE) to one Imrit S/o Chhandu. On earlier occasion the said land was taken by the deceased Prabhu Dayal from the said Nathhu Raja on the 'shared farming'.

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It is submitted by the learned counsel for the revisionists that revisionists had got no intention or role to commit the said offence. The revisionists are neither the descendants of Imrit or Prabhu Dayal and as such has got no interest in the land of Nathu Raja. Their names have been purposely dragged as assailants who are allegedly assaulted upon the deceased by an axe, lathi and dandas. There is specific allegation of indiscriminate assault by all of them, but fact remains, the deceased has sustained only three injuries on his person and the death is caused by ante-mortem head injury.

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After registering the FIR, the investigation of the case started rolling and the police has collected a number of witnesses which are annexed as Annexure Nos.5,6 & 7 to the revision. After collecting all material on record, police has submitted a report under Section 173(2) Cr.P.C. dropping the names of the revisionists from the charge sheet, mentioning therein that not even prima facie material against the revisionists to book them on the aforesaid sections of IPC.

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After committal of the case, sessions trial have started as Session Case (S.T.) No.592 of 2020 (State Vs. Imrat and others) before the learned Additional District & Sessions Judge/Special Judge (E.C. Act), Lalitpur. In this prosecution case, two witnesses,

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namely, Smt. Sheela and Sri Surendra have been examined as P.Ws-1 & 2 respectively and also were cross-examined. After this exercise all over, abruptly an application under Section 319 Cr.P.C. was moved on 27.8.2021, on which learned Sessions Judge has passed the impugned order on 9.9.2021.

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The submission made by the learned counsel for the revisionists is that though the revisionists are being summoned on the application under Section 319 Cr.P.C. but they have no intention or mens rea in committing offence. Their names have been purposely dragged in just to harass and prosecute them. It is also argued, that on the very next day the revisionists were going to marry their own daughter and under these circumstances it is highly improbable that one would indulge in committing this ofence. It is further argued that indiscriminate assault by axe has been alleged in the FIR but the deceased has sustained not a single injury over his person and died on account of lathi blow over his head. Except the names of the revisionists there is no other evidence that any point of time they have actively participated in the commission of the offence and therefore, the order impugned suffers from the vires of non-application of judicial mind by deciding the application under Section 319 Cr.P.C.

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After hearing the learned counsel for the parties, this Court thinks it appropriate to re-peruse the provisions of section 319 Cr.P.C. for fair adjudication in the matter. The provisions envisaged under section 319 Cr.P.C. is being reproduced herein below:

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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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It is mandatory under law and basic trite that the provisions contained under section 319 Cr.P.C. is driven from the Latin doctrine "judex damnatur cum nocens absolvitur" (judge is condemned when guilty is acquitted). The idea behind, that this doctrine used as beacon light while explaining the use and indicating the provisions envisaged under section 319 Cr.P.C. It is the pious duty of the court to do justice by punishing the real culprit as an accused, keeping in view the Latin doctrine litigantes ab cœtibus summa debet non putat de manu mali legem (unscrupulous litigants should not get away from the clutches of law) Experience also shows us that there are unscrupulous accused, who sometimes win over the investigation or after playing tricks get themselves out of the clutches of the criminal prosecution, which they never deserved and in order to cope up with this extraordinary situation, this exceptional power under section 319 Cr.P.C., is exercised against them, where investigating agency for any reason

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does not arraign them as accused, there courts are not powerless in calling the said accused to face trial but before exercising this extraordinary power, it has to observe as to (a) under what circumstances; (b) at what stage of the trial (c) what should be the degree of satisfaction of the court to exercise its extraordinary powers under section 319 Cr.P.C. Indeed, the courts are sole repository of doing justice between the parties and uphold the rule of law in the country, then it would be inappropriate to deny the existence of such powers from the court. It is only in those cases where tricks are being played to get themselves absolved from the trial by the accused person/s by showing their might in the shape of money/muscle power or otherwise.

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In this regard, this Court cannot shut its eyes keeping in view paragraphs 95, 105 and 106 wherein specific principles of law has been laid down in the case of Hardeep Singh vs State Of Punjab & Other in Criminal Appeal No. 1750 of 2008 and other connected appeals delivered on 14 January, 2014. The aforesaid paragraphs are reproduced herein below:

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"95. In Suresh v. State of Maharashtra, AIR 2001 SC 1375, this Court after taking note of the earlier judgments in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, AIR 1990 SC 1962 and State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 SC 2041, held as under:

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"9.......at the stage of Sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the

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purpose of arriving at the conclusion that it is not likely to lead to a conviction." (Emphasis supplied).

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In Sohan Lal & Ors. v. State of Rajasthan, (1990) 4 SCC 580 , a twoJudge Bench of this Court held that once an accused has been discharged, the procedure for enquiry envisaged under Section 398 Cr.P.C. cannot be circumvented by prescribing to procedure under Section 319 Cr.P.C.

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In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., AIR 1983 SC 67 , this Court held that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them under Section 319 Cr.P.C. and try them along with the other accused."

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No doubt, the trial court was competent to exercise its power under section 319 Cr.P.C. on the basis of the testimony of a witness. However in the instant case where there is plethora of evidence, collected by the police, which suggests otherwise and the trial court was duty bound to look into it, which it did not. The learned trial Judge ought to have recorded explicitly his satisfaction to an extent that the evidence if goes unrebutted, would lead to conviction, after dealing with all the evidence, so collection by the police, as contemplated in the case of Brijendra Singh and others v. State of Rajasthan [2017 (7) SCC 706] .

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Further, in the case of Labhuji Amratji Thakor & Ors. Vs. State of Gujarat & Another [Criminal Appeal No.1349 of 2018 arising out of SLP (CRL.) No.6392 /2018] decided by the Apex Court, the basic thrust has been laid that the powers envisaged under section 319 Cr.P.C., 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.

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Only where prima facie strong and cogent evidence occurs against a person by the evidence led before the court, such power should be exercised and not in a casual and cavalier manner.

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Learned counsel for the revisionists has drawn the attention of the Court towards the principles of law laid down in the case of S. Mohammed Ispahani v. Yogendra Chandak [(2017) 16 SCC 226] . In this case, the Hon'ble Apex Court in paragraph 13, which is being extracted herein below:

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"As stated, the High Court has, by impugned orders, allowed the revision petition thereby directing the Chief Metropolitan Magistrate to summon the appellants herein and to face the trial in the said case. The reasons which persuaded the High Court to allow the revision are captured by it in the following paragraphs:

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"10. Perusal of evidence of P.W. 1 would show that the complaint has been lodged against the respondents 1 to 4 and the first information report has also been registered against the respondents 1 to 4. However, after investigation, the names of the respondents 1 to 4 herein did not find place, in the charge sheet. After framing of charges and during the trial only, the prosecution has filed the petition under Section 319 of Cr.P.C. to implicate the respondents 1 to 4 as accused in this case. Perusal of the evidence of P.W. 1, who is the petitioner herein has clearly spoken about the offence committed by the respondents 1 to 4 and Ex.PI would also clearly show the involvement of the respondents 1 to 4 in the commission of offence as mentioned in the petition."

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It is noteworthy that some of the principles enunciated in Hardeep Singh case (Supra), may be recapitulated : power under section 319 Cr.P.C. can be exercised by the trial court at any stage during trial i.e., before the conclusion of the trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some "evidence" against such a person on the basis of which evidence it can be gathered that the material which is brought before the court or material/evidence collected by the Investigating Officer at the stage of enquiry is indicative and is deemed to stronger evidence than mere probability

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of his complicity. Mere naming a person would not be sufficient to summon that non-accused person. No doubt, such evidence which has surfaced during examination-in-chief, the court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the court, which can be gathered from the reasons recorded by the court in respect of complicity of some other person, who is not facing trial in the offence. However, since it is the discretionary power of the court under section 319 Cr.P.C., the extraordinary one, to summon a non-accused person, has to be exercised very cautiously. The degree of satisfaction, as has been mentioned above, in firm footed manner evidence against a nonaccused person.

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All the aforesaid factors were necessarily to be considered while passing the aforesaid impugned order dated 9.9.2021 passed on the application under Section 319 Cr.P.C. by the learned Additional District & Sessions Judge/Special Judge (E.C. Act), Lalitpur under section 319 Cr.P.C., therefore, this Court does not find that the aforesaid impugned order is well shot off toeing the guidelines provided in the cases of Hardeep Singh (Supra), Brijendra Singh and others (Supra), Labhuji Amratji Thakor & Ors, S. Mohammed Ispahani v. Yogendra Chandak (Supra) and Sugreev Kumar Vs. State of Punjab & Ors. [Criminal Appeal No. 509 of 2019 arising out of SLP (CRL.) No. 9687 of 2018] passed on 15th March 2019 and thus, this Court has got no hesitation in quashing the order impugned.

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In the aforesaid backdrop, the order dated 9.9.2021 passed on the application under Section 319 Cr.P.C. by the learned Additional District & Sessions Judge/Special Judge (E.C. Act), Lalitpur under

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section 319 Cr.P.C passed in Session Case (S.T.) No.592 of 2020 (State Vs. Imrat and others) arising out of case crime no.14 of 2020, under Sections 304/34, 323/34 IPC, Police Station Saujana, District Lalitpur is hereby quashed.

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The instant revision succeed and is allowed.

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The matter is remanded for fresh consideration with the direction to the court concerned to re-visit the entire issue and pass a well reasoned fresh order after hearing rival parties, keeping in view the principles of law enunciated in the aforesaid cases, passed by the Apex Court, within a period of three months from the date of production of a certified copy of this order.

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Order Date :- 8.4.2022

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M. Tarik

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Digitally signed by MOHD TARIK Date: 2022.04.18 12:34:56 IST Reason: Location: High Court of Judicature at Allahabad

Arjun @ Arjun Singh and 3 Others v. State of U.P. and Another

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Arjun @ Arjun Singh and 3 Others v. State of U.P. and Another

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