Dismissed

Mohd. Husain v. State of U.P. and Another

Allahabad HC2 May 2023CRLR/1189/2023

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision filed by Mohd. Husain challenging the rejection of his application under Section 319 Cr.P.C. to summon Arif Steno. The Court held that the lower court did not commit any jurisdictional error as the evidence did not establish grounds for summons beyond mere complicity.

What did the court decide?

Criminal Revision No. 1189 of 2023 was dismissed as no jurisdictional error was committed by the lower court.

Mohd. Husain Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2023)

¶1

Neutral Citation No. - 2023:AHC:111238

¶2

Court No. - 49

¶3

Case :- CRIMINAL REVISION No. - 1189 of 2023

¶4

Revisionist :- Mohd. Husain Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Dr. C.P. Upadhyay Counsel for Opposite Party :- G.A.,Ajay Mishra,Ashish Kumar Mishra,Shri Krishna Mishra

¶5

Hon'ble Rajeev Misra,J.

¶6

Heard Dr. C.P. Upadhyay, the learned counsel for revisionist, Mr. Manu Raj Singh, the learned A.G.A. for State and Mr. Ajay Mishra, the learned counsel representing opposite party 2.

¶7

2. Perused the record.

¶8

This Criminal Revision has been filed challenging the order dated 01.02.2023 passed by Additional Sessions Judge, Court No.12, Allahabad in Sessions Trial No. 1379 of 2022 (State Vs. Mohd. Faiz and Others) arising out of Case Crime No. 138 of 2021, under Sections 147, 148, 323, 504, 307 IPC, Police Station-Ghoorpur, District-Prayagraj whereby the application dated 02.01.2023 under Section 319 Cr.P.C. (Paper No. 8 Kha) filed by revisionist has been rejected.

¶9

Record shows that in respect of an incident which is alleged to have occurred on 15.04.2021, a prompt F.I.R. dated 15.04.2021 was lodged by first informant/revisionist and was registered as Case Crime No. 138 of 2021, under Sections 147, 148, 323, 504, 307 IPC, Police Station-Ghoorpur, District-Prayagraj. In the aforesaid F.I.R., 7 persons namely - (1). Saleem, (2). Arif Steno, (3). Meraj, (4). Mohd. Eklakh, (5). Mohd. Faiz, (6). Mohd. Ismail & (7). Isafullah have been nominated as named accused.

¶10

The gravamen of the allegations made in the FIR is to the effect that on 15.04.2021 at around 06:30 PM, the revisionist had gone to primary school at Chak Ghyanshyam Das along with Iftari for rozedars. As the revisionist was distributing Iftari, named accused came on the spot. They restrained the revisionist from distributing Iftari and further abused the revisionist. Revisionist is said to have requested the named accused not to abuse him, upon which named accused are said to have assaulted the revisionist. At this juncture,

¶11

the cousin brother of the revisionist namely Mohd. Aftab came on the spot to mediate. Named accused Mohd. Eklakh shot Mohd. Aftab with his pistol on account of which he sustained gun shot injury. Subsequently, the injured was admitted to the hospital.

¶12

After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. Upon completion of investigation, Investigating Officer came to the conclusion that complicity of named accused Mohd. Saleem, Meraj, Mohd. Eklakh, Mohd. Ismail, Isafullah and Mohd. Faiz and not named accused Mohd. Akhtar and Saud is established in the crime in question. He, accordingly, submitted the charge sheet dated 08.07.2021 whereby and whereunder aforementioned accused were charge sheeted under Sections 34/147, 148/323, 504 and 307 IPC.

¶13

After submission of above-mentioned police report dated 08.07.2021 (Charge Sheet), cognizance was taken upon same and charge sheeted accused were summoned. Court below framed charges against charge sheeted accused who denied the same and pleaded innocence. Resultantly, the trial procedure commenced.

¶14

Prosecution in discharge of it's burden and to bring home to charges so framed adduced PW-1, Mohd. Hussain-First Informant. After the statement in chief/examination in chief of PW-1 was recorded, prosecution adduced PW-2, Mohd Aftab.

¶15

After his examination in chief was over, an application dated 02.01.2023 under Section 319 Cr.P.C. (Paper No. 8 Kha) was filed by first informant/revisionist stating therein that since as per the statements of PW-1 and PW-2 complicity of named but not charge sheeted accused Arif Steno is also established in the crime in question, therefore, he be also summoned under Section 147, 148, 323, 504, 307/149 IPC to face trial.

¶16

Court below by means of impugned order dated 01.02.2023 rejected the aforesaid application. Thus feeling aggrieved by above order dated 01.02.2023, revisionist has approached this Court by means of present criminal reivision.

¶17

Dr. C.P. Upadhyay, the learned counsel for revisionist contends that order impugned in present criminal revision is manifestly illegal and without jurisdiction and therefore, the same cannot be sustained in law and fact. Consequently, the same is liable to be quashed by this Court.

¶18

He next submits that as per the depositions of PW-1 and PW-2, complicity of named but not charge sheeted accused Arif Steno is clearly established in the crime in question. As such, court below has erred in law in rejecting the application under Section 319 Cr.P.C. According to the learned counsel for revisionist in view of law laid down by Constitution Bench in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, non charge sheeted accused can be summoned under Section 319 Cr.P.C., on the basis of statement in chief of only one prosecution witness. However, in the present case, 2 prosecution witnesses of fact namely PW-1, Mohd. Hussain and PW-2, Mohd. Aftab were adduced whose examination in chief was also recorded. Court below on an erroneous view of the matter as concluded that since complicity of named but not charged sheeted accused Arif Steno is not established as per the deposition of PW-2, therefore, the application was dismissed which is illegal. Consequently, the revision is liable to be allowed by this Court.

¶19

Per contra, Mr. Manu Raj Singh, the learned A.G.A. for State and Mr. Ajay Mishra, the learned counsel representing opposite party 2 have vehemently opposed the present criminal revision. They submit that order impugned in present criminal revision is perfectly just and legal. As such, no interference is required by this Court in present criminal revision. Court below has duly analyzed the evidence of PW-1 and PW-2 and upon judicious weighment of the same has arrived at the conclusion that nothing more than mere complicity of named but not charge sheeted accused Arif Steno is not established in the crime in question as per deposition of PW-1. However, as per the deposition of PW-2 even the complicity of opposite party 2 is not established in the crime in question. The finding returned by court below is a conclusive and cogent finding and cannot be said to be illegal, perverse and erroneous. They, therefore, submit that once the said findings cannot be dislodged, the conclusion drawn by court below cannot be altered. It is thus urged that since no jurisdictional error has been committed by court below, present criminal revision is liable to be dismissed.

¶20

Having heard, the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party 2 and upon perusal of record, this Court finds that the only issue which arises for consideration in present criminal revision is whether the court below has committed a jurisdictional error in passing the impugned order.

¶21

The parameters with regard to exercise of jurisdiction under Section 319 Cr.P.C. have been considered time and again by the

¶22

Supreme Court. The chronology of the same is as under:-

¶23

(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)

¶24

(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)

¶25

(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568

¶26

(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244

¶27

(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706

¶28

(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226

¶29

(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393

¶30

(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329

¶31

(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342

¶32

(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556

¶33

(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368

¶34

(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638

¶35

(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806

¶36

(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805

¶37

(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390

¶38

(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644

¶39

(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337

¶40

(xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632

¶41

(xix) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741

¶42

(xx). Sukhpal Singh Khaira Vs. State of Punjab (2023) 1 SCC 289 (Constitution Bench).

¶43

In Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706, the Bench concluded that the Court while exercising it's jurisdiction under Section 319 Cr.P.C. must consider the material collected by the Investigating Officer during the course of investigation inasmuch as it is relevant material to decide something more than mere complicity of accused who is sought to be summoned is established in the crime in question. The Bench further observed that the Court should consider the statement of the witness recorded under Section 161 Cr.P.C. and his statement before the Court and find out as to whether something new has been stated by the witness in his deposition before court below. On the above premise, the Bench ultimately concluded that something more than mere complicity of accused should emerge for summoning an accused under Section 319 Cr.P.C.

¶44

Subsequently, in S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226, the Bench after considering the earlier judgments of Supreme Court opined that an accused cannot be summoned under Section 319 Cr.P.C. in a casual and cavalier manner but only when there is no strong and cogent evidence against him.

¶45

Court below has evaluated the statement of PW-1 and PW-2 in order to find out as to whether something more than mere complicity of opposite party 2 i.e. Arif Steno is established in the crime in question. Upon valuation and consideration of the same, court below concluded that prima-facie something more than mere complicity of opposite party 2 Arif Steno is not established in the crime in question. Accordingly, court below rejected the application under Section 319 Cr.P.C.

¶46

In the light of above conspectus, this Court finds that no jurisdictional error has been committed by court below in passing the order impugned. The findings recorded by court below that nothing more than mere complicity of accused oppose party 2 is established in the crime in question, as per the statement of PW-1, cannot be said to be illegal, perverse or erroneous. Court below further found that as per the statement of PW-2 even the complicity of opposite party 2 Arif Steno is not established in the crime in question. As such, no illegality has been committed by court below in rejecting the application under Section 319 Cr.P.C.

¶47

Dr. C.P. Upadhyay, the learned counsel for revisionist inspite of his streneous effort could not dislodge the said findings recorded by court below that same are illegal, perverse or erroneous. It is well settled that once the findings cannot be dislodged, the conclusion cannot be altered. Thus no jurisdictional error has been committed by court below in passing the order impugned.

¶48

Resultantly, the present criminal revision fails and is liable to be dismissed.

¶49

It is, accordingly, dismissed .

¶50

Order Date :- 2.5.2023

¶51

Vinay

¶52

Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad

Mohd. Husain v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Mohd. Husain 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

Toyaj Tripathi Vs State of U.P.

Sanjay Sagar Vs State of U.P. thr. Prin. Secy. (Home) Govt. of U.P. and Anr.

Dinesh Upadhyay Vs State of U.P.

Rajendra Krishna Johri Vs Central Bureau of Investigation

Prashant Verma Vs State of U.P.

Dr. Vishnu Rai @ Vishnu Rai Vs State of U.P. and Another