Dismissed

Sri Prakash @ Happay and Another v. State of U.P. and Another

Allahabad HC10 Aug 2023CRLR/2986/2022

Case brief

AI extract

What is this about?

This criminal revision challenged the trial court's order summoning the revisionists under Section 319 Cr.P.C. The High Court upheld the order, finding sufficient evidence from injured witnesses to justify prosecution against the revisionists who were initially exonerated.

What did the court decide?

The criminal revision filed against the order of summoning the revisionists under Section 319 Cr.P.C. was dismissed, and the interim order was vacated.

Sri Prakash @ Happay and Another Vs State of… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:175102

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Court No. - 79

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Case :- CRIMINAL REVISION No. - 2986 of 2022 Revisionist :- Sri Prakash @ Happay And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anand Kumar Srivastava Counsel for Opposite Party :- G.A.,Ganesh Mani,Ritesh Kumar Singh

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Hon'ble Vipin Chandra Dixit,J.

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Heard learned counsel for the revisionists, learned A.G.A. for the State, Sri Ritesh Kumar Singh, learned counsel appearing on behalf of opposite party no.2 and perused the record.

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This criminal revision has been filed by the revisionists against the order dated 2.4.2022 passed by Additional Sessions Judge, Court No.3, Azamgarh in S.T. No.312 of 2015 (State Vs. Shiv Narayan) arising out of Case Crime No.8A of 2009, under Sections 323, 325, 504, 506 and 307 I.P.C., P.S. Suhwal, District Ghazipur, by which the application filed by prosecution under Section 319 Cr.P.C. was allowed and the revisionists were summoned to face the trial.

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The brief facts of the case is that the F.I.R. was lodged by opposite party no.2 Radhey Shyam Rai in P.S. Suhwal, District Ghazipur against the accused persons with the allegation that accused persons had assaulted his wife namely Shail Kumari and daughter Archana with lathi-danda and they also opened fire upon the informant. The F.I.R. was registered as Case Crime No.8A of 2009, under Sections 307, 323, 504, 506, 352 I.P.C. against four accused persons namely, Shiv Narayan Rai, Shri Prakash @ Happy, Dwarika Prasad @ Goldee and Digvijay @ Sonu. The Investigating Officer after investigation had submitted charge-sheet against accused Shiv Narayan Rai and Digvijay @ Sonu and other co-accused namely Shri Prakash @ Happy and Dwarika Prasad @ Goldee have been exonerated. During trial the informant Radhey Shyam Rai had died and his wife (injured) namely Smt. Shail Kumari was appeared as P.W.-1 and daughter of informant namely, Archana (injured) was appeared as P.W.-2 and after the statements of both the eye witnesses who were also injured in the incident, the prosecution has moved an application under Section 319 Cr.P.C. to summon the other two co-accused namely, Shri Prakash @ Happy and Dwarika Prasad @ Goldee which was allowed by the trial court vide order dated 2.4.2022 which is impugned in the present revision.

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It is submitted by learned counsel for the revisionists that F.I.R. has been lodged by the informant/opposite party no.2 on altogether incorrect facts and the revisionists were falsely implicated in this case. The Investigating Officer after conducting fair investigation had submitted the charge-sheet against two accused persons and the revisionists were exonerated by the Investigating Officer and charge-sheet has not been submitted against the revisionists. The application moved by prosecution

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under Section 319 Cr.P.C. has wrongly been allowed by the trial court and the trial court had erred in summoning the revisionists to face the trial. It is further submitted that there is no evidence or material before the trial court to summon the revisionists in the aforesaid case.

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On the other hand, learned counsel appearing on behalf of opposite party no.2 submits that both the injured witnesses P.W.-1 and P.W.-2 in their statements before the court have categorically stated the involvement of revisionists in this case. Both the witnesses have supported the prosecution case and had stated that the revisionist no.1 Sri Prakash @ Happy was armed with Katta and revisionist no.2 Dwarika Prasad @ Goldi @ Ravi Rai was armed with lathi at the time of incident and they also participated in the crime.

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Before considering the merits of the contention of rival parties it is necessary to refer to Section 319 Cr.P.C. which reads as under:-

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"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.

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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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By bare reading of Section 319 Cr.P.C. it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial, if it appears from the evidence that such person has committed any offence for which such person could be tried together with other accused.

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The provisions of Section 319 Cr.P.C. have been enacted in the Code of Criminal Procedure with a view to achieve objective that the real culprit should not get away unpunished and the court is empowered to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence then he may be summoned to face the trial along with other co-accused.

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The Full Bench of Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others reported in 2014 (1) JIC 539 (SC ) has laid down the principles in respect of summoning the persons who were not charge-sheeted during investigation but from the evidence they were found guilty for committing such an offence. The relevant paragraphs 96, 97, 107, 108 are quoted hereunder:-

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"96. 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 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two- Judges Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, 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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97. In Rajendra Singh (Supra), the Court observed:

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"Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."

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107. 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.

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108. 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 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 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."

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The power of trial court under Section 319 Cr.P.C. in respect to arraign any person

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as an accused during the course of enquiry or trial is also dealt with by Hon'ble the Apex Court in the case of Babubhai Bhimabhai Bokhiria and another Vs. State of Gujarat and others , reported in (2014) 5 SCC 568 , the relevant paragraph 8 is quoted hereunder:-

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"8. Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher."

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The trial court after considering the statement of injured witnesses namely Shail Kumari (P.W.-1) and Archana (P.W.-2) have recorded its prima facie satisfaction regarding involvement of revisionists in the present case. The trial court after considering the entire evidence and materials which are available on record has rightly allowed the application filed by prosecution under Section 319 Cr.P.C. and there is no illegality or infirmity in any manner. No ground for interference is made out. The criminal revision is liable to be dismissed.

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The criminal revision is dismissed.

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Interim order, if any, stands vacated.

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Order Date :- 10.8.2023 Kpy

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Digitally signed by :- KAVLESHWAR PRASAD YADAV High Court of Judicature at Allahabad

Sri Prakash @ Happay and Another v. State of U.P. and Another

Case brief

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What did the court decide?

Sri Prakash @ Happay and Another v. State of U.P. and Another

Case brief

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