Allowed

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

Allahabad HC2 May 2023CRLR/1294/2023

Case brief

AI extract

What is this about?

In this criminal revision, the Allahabad High Court examined the validity of an order summoning the revisionist under Section 319 Cr.P.C. The bench held that the trial court failed to record requisite satisfaction and relied on weak circumstantial evidence. The court ruled that the order was illegal and set aside the summons.

What did the court decide?

The impugned order dated 24.02.2023 summoning the revisionist, Komal Singh, under Section 319 Cr.P.C. is set aside.

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

¶1

Court No. - 90

¶2

Case :- CRIMINAL REVISION No. - 1294 of 2023

¶3

Revisionist :- Komal Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Devbrat Mukherjee Counsel for Opposite Party :- G.A.,Shamshuddin Khan (S U Khan)

¶4

Hon'ble Syed Aftab Husain Rizvi,J.

¶5

Heard Sri Devbrat Mukherjee, learned counsel for the revisionist, learned AGA for the State and Sri Shamshuddin Khan (S U Khan), learned counsel for the opposite party.

¶6

This criminal reivision has been filed against the order dated 24.02.2023 passed by Additional District and Sessions Judge, Court No.01 Jalaun at Orai in Session Trial no.149 of 2018 (State Vs. Raju and others). By the impugned order, the learned trial Court on an application under Section 319 Cr.P.C. summoned the revisionist- Komal Singh and another co-accused, Kalyan Singh to face trial as co-accused for offence under Sections 302, 201 read with Section 34 and Section 120B I.P.C.

¶7

On 02.05.2018, the complainant, Munni lodged an F.I.R. alleging therein that on 17.03.2018 at about 10 a.m., Rahisa her daughterin-law was taken away by Kalyan on his motorcycle while the other co-accused, namely, Komal Singh, Raju, Sunil and Sanjay followed them on other motorcycle. Since then, Rahisa did not return home. On 28.03.2018 at about 2 P.M., the complainant was informed by Police of Gyan Bharati Chowki that the dead body of her daughter-in-law was lying in the forest near railway crossing of Kalpi and her mobile, Aadhar Card and Todia were lying besides the dead body. From these things, the deceased was identified as

¶8

Rahisa wife of Rasool. After investigation, charge-sheet was submitted against Raju, Sunil and Sanjay and the remaining two accused, Kalyan Singh and revisionist- Komal Singh were exonerated.

¶9

Learned counsel for the revisionist contended that during investigation, no recovery whatsoever was made from the possession of any accused and only skeleton was recovered. Till today, the body which was recovered by the police officers could not be identified which was in skeleton form and no specific identification of the body has been made by the Forensic Department, as such the entire proceeding against the present revisionist is bad in law. There is no direct evidence till date against the revisionist either during investigation or during trial. The revisionist has been implicated merely on the basis of the evidence of so-called witnesses and alleged last seen evidence which is very fragile and shaky and does not complete the chain of events. It is also contended that during investigation, the investigating officer has recorded the statements of several independent witnesses, namely, Vidya Devi, Munna Lal Yadav, Ashok Pathak, Ritesh Pathak in which they have stated that the revisionist has been falsely been implicated. The complainant moved an application on 16.07.2019 under Section 319 Cr.P.C. before the trial Court to summon revisionist, Komal Singh and coaccused, Kalyan Singh for trial. The learned trial Court allowed the said application vide order dated 10.10.2022 and summoned the revisionist to face trial with co-accused. The revisionist challenged the order in Criminal Revision No.4649 of 2022 and this Court vide judgment and order dated 25.11.2022 and 10.10.2022 set aside the summoning order and remanded back the matter to the learned trial Judge with a direction to reconsider and revisit the

¶10

entire matter once again and decide the same in the light of ratio laid down by the Apex Court. The learned Session Court again vide order dated 24.02.2023 has repeated the order dated 10.10.2022 without application of mind and without any satisfaction for invoking the extra-ordinary jurisdiction of Section 319 Cr.P.C. called upon the revisionist to face trial which is nothing but an abuse of process of law. It is further contended that the Sessions Judge while passing the impunged order failed to consider the ratio of law laid down in Constitution Bench case of Hardeep Singh Vs. State of Punjab (2014) (3) Supreme Court Cases Page 92 and Brijendra Singh Vs. State of Rajasthan (2017) 7 SCC Page 706 and Sagar Vs. State of Uttar Pradesh (2022) 6 SCC Page 389 . It is further contended that the Sessions Court could not find any extraordinary evidence against the revisionist at the time of passing order dated 10.10.2022, as such on the same circumstances invoking Section 319 Cr.P.C. against revisionist is not legally sustainable.

¶11

Learned counsel further submitted that in the case of Hardeep Singh (supra) there was one core question which has been dealt with that what is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C. ? and the Apex Court has observed that Section 319 Cr.P.C is a discretionary and extraordinary power which can be exercised sparingly and only in those cases where the circumstances of the case so warrant. It cannot be exercised because the Magistrate and Sessions Judge are of the opinion that some other person may also be guilty of committing the offence. Accordingly, the two grounds invoking the jurisdiction of Section 319 Cr.P.C. laid down in the aforesaid judgment. The first one is satisfaction of the Court and second one is the evidence which if goes unrebutted would lead to conviction.

¶12

It is next contended that from bare perusal of the impugned order, it is clear that the Constitution bench judgment of Hardeep Singh (supra) has not been followed while summoning the revisionist as such the impugned order is not only against the principles laid down in the case of Hardeep Sing h but is also against the judgment of Sartaj Singh which had been followed later on. The impugned order clearly reveals that the concerned Session Judge could not state any where regarding his satisfaction to summon the revisionist by invoking extra ordinary jurisdiction of Section 319 Cr.P.C. and further the evidence in the form of statement is not sufficient against the revisionist for convicting him for the aforesaid offence. The learned Sessions court while invoking extraordinary jurisdiction under Section 319 Cr.P.C. could not assign any reason in the impugned order and also could not consider the latest case of Apex Court decided on 10.03.2022 (Sagar Vs. State of Uttar Pradesh) (supra). The case of the revisionist is identical to that of Sagar's case. If the statement of the prosecution witness is the sole criteria for invoking Section 319 Cr.P.C. which is rebutted could not make revisionist convicted then it cannot be treated as extraordinary evidence. There is no strong and cogent evidence against the revisionist for invoking extraordinary jurisdiction under Section 319 Cr.P.C. as such the impugned order is not in consonance with the settled legal principles. It is further contended that if the statements of complainant and other prosecution witnesses are taken as evidence then maximum it leads to circumstantial evidence and has held by the Apex Court in case of Ravindra Singh @ Kako and another vs. State of Punjab that in case where the conviction is solely based on circumstantial evidence, such evidence and the chain of circumstances must be conclusive enough and sustain a conviction.

¶13

The Sessions Judge has not recorded the satisfaction in the impugned order, the learned trial Court has recorded satisfaction only about the complicity of the accused-revisionist. The learned trial Court has also observed that the revisionist-accused has committed the offence with co-accused while no such observations could be made by the learned trial Court. On the aforesaid grounds, it is contended that the impugned order has been passed in a very casual manner and without application of mind and without following the observations/ directions of this Court as well as Apex Court in the case of Hardeep Singh Vs. State (supra). The impugned order is wholly unwarranted, illegal and not in accordance with law and is liable to be set aside.

¶14

The learned counsel for the opposite parties contended that accused persons are named in the F.I.R. and there are specific allegations in the F.I.R. that deceased was taken away by Kalyan on his motorcycle and the remaining accused followed them since then the deceased was not found and her dead body was found which has been identified by the apparels and Aadhar Card. It is further contended that the complainant as well as the other witnesses have corroborated the allegations in the F.I.R. and the Investigating Officer in an improper way has excluded the revisionist-accused and charge-sheet was submitted only against three named accused. It is further contended that during trial four witnesses including the complainant as P.W.1, Irshad, son of the deceased as P.W.2 and two independent witnesses have been produced and they have again corroborated the prosecution version that deceased was taken away by the revisionist-accused with coaccused and thereafter her dead body was found. There is sufficient and cogent evidence in the form of oral testimony of the witnesses. The learned trial Court has appreciated the entire facts

¶15

and material on record with settled principles of law and has passed the impugned order. There is no illegality in the impugned order.

¶16

Revisionist, Komal Singh is named in the F.I.R. which has been lodged by Munni Devi, the mother-in-law of the deceased, Rahisa. The allegations of the F.I.R. are that on 17.03.2018 at about 10 a.m. co-accused, Kalyan came at the house of the complainant and took away Rahisa on his motorcycle, the other named accused, Komal Singh, Raju, Sunil and Sanjay followed them on other motorcycle, thereafter, Rahisa did not return home. On 28.03.2018 at about 2 p.m., the police informed the complainant that the dead body of her daughter-in-law is lying in the forest of Kalpi Railway Crossing. The identification was established through mobile, Aadhar Card and Todia. During investigation, the Investigating Officer has recorded the statements of complainant and some independent witnesses but there is no eye-witness on account of the incident. The only circumstantial evidence has been collecting by the Investigating Officer that deceased was seen in the company of Raju, Sunil and Sanjay. The complicity of the two other named accused or revisionist, Komal Singh and co-accused Kalyan was not found by the Investigating Officer and he exonerated them and submitted charge-sheet only against Raju, Sunil and Sanjay. Before the trial Court, four witnesses have been examined Munni Devi, P.W.1 is the complainant, Irshad, P.W.2 is the minor son of the deceased, Dharmendra Singh, P.W.3, Lallan Singh, P.W.4 are covillagers. Complainant, Munni Devi has reiterated her version of F.I.R. in her examination-in-chief before the trial Court and Irshad, P.W.2 has supported her. Dharmendra Singh, P.W.3 and Lallan Singh, P.W.4 have also stated that they have seen the deceased in the company of revisionist-accused and other co-accused and since

¶17

then the deceased did not return to her house.

¶18

In the cross-examination of complainant, Munni Devi, P.W.1, the complainant in the last line of her cross-examination has categorically stated that "it is true that her daughter-in-law was taken away by co-accused, Kalyan. This statement does not establish the complicity of the revisionist-accused. It also appears that so-called witnesses, Dharmendra Singh, P.W.3 and Lallan Singh, P.W.4 are inimical witnesses. There are other certain contradictions and discrepancies in the statements of the witnesses.

¶19

It is settled law that power to summon an accused is an extraordinary power which should be used very sparingly and only if compelling reasons exist. Although, the power is discretionary but it should not be applied mechanically.

¶20

A Constitution Bench of Apex Court in Hardeep Singh Versus State of Punjab and others AIR (2014) Supreme Court 1400 has settled scope and ambit of Section 319 Cr.P.C. The relevant paras 98 and 99 are quoted below:

¶21

Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary 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.

¶22

Thus, we hold that though only a prima face 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

¶23

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, Cr.P.C, to form any opinion as to the guilt of the accused."

¶24

The Apex Court in Brijendra Singh and another Versus State of Rajasthan (2017) 7 SCC 706 in para no. 13, has observed as follows:

¶25

"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated:Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e.,before the conclusion of 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 he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilized for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt,such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses,can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. 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."

¶26

Applying the aforesaid principles on the present set up of facts, it is clear that there is no strong and cogent evidence against the

¶27

revisionist which is required to exercise the powers under Section 319 Cr.P.C. The degree of evidence required for exercising power under Section 319 Cr.P.C. is not that of prima facie case, it requires stronger evidence as laid down by the Apex Court. While deciding the application under Section 319 Cr.P.C., the learned trial Court has failed to appreciate the evidence and other material available on record. It is also failed to record the degree of satisfaction which is required to summon an accused under Section 319 Cr.P.C. The impugned order is not sustainable in respect of revisionist, Komal Singh and is liable to be set aside.

¶28

The revision is allowed and the impugned order dated 24.02.2023 is hereby set aside in respect of revisionist, Komal Singh.

¶29

Order Date :- 2.5.2023 SP/-

¶30

Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad

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

Case brief

What is this about?

What did the court decide?

Komal Singh 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

Smt. Khushbu Bharti and Another Vs State of U.P. and 3 Others

Nashra B and Another Vs State of U.P. and 3 Others

Smt. Mansee and Another Vs State of U.P. and 3 Others

Sandhya Kumari and Another Vs State of U.P. and 3 Others

Smt. Puneeta Kumari and Another Vs State of U.P. and 3 Others

Smt Divyanshi Mishra and Another Vs State of U.P. and 6 Others