Dismissed

Muniv and 2 Others v. State of U.P. and Another

Allahabad HC10 Oct 2023CRLR/3825/2023

Case brief

AI extract

What is this about?

The High Court dismissed the revision filed by Muniv against the trial court's order summoning them to face trial under Section 319 Cr.P.C. The Court held that sufficient material existed in the evidence to proceed against the revisionists for murder and conspiracy.

What did the court decide?

The criminal revision was dismissed and the impugned order of summons under Section 319 Cr.P.C. was affirmed.

Muniv and 2 Others Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:195351

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Court No. - 79

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Case :- CRIMINAL REVISION No. - 3825 of 2023 Revisionist :- Muniv And 2 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Birendra Kumar Gautam Counsel for Opposite Party :- G.A.,Arvind Kumar Mishra

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Hon'ble Vipin Chandra Dixit,J.

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Heard Sri Birendra Kumar Gautam, learned counsel for the revisionists, learned A.G.A. for the State, Sri Arvind Kumar Mishra, 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 revisionist against the order dated 30.05.2023 passed by Special Judge, SC/ST Act, Maharajganj, in Special Sessions Trial No. 148 of 2020, arising out of Case Crime No. 290 of 2019, under Sections 302, 147, 148, 120B, 506 I.P.C. Section 3(2)(V) SC/ST Act and Section 7 Criminal Law Amendment Act, Police Station Paniyara, District Maharajganj by which the application filed by informant under Section 319 Cr.P.C. was allowed and the revisionists were summoned to face trial.

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Brief facts of the case is that the opposite party no. 2 had lodged a first information report against five named accused persons including revisionists, with specific allegations against coaccused Azharuddin that he assaulted the deceased by axe. The Investigating Officer after investigation has submitted charge sheet only against Azharuddin and other co-accused including the revisionists were exonerated.

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During trial, the prosecution has produced four witnesses. PW-1 Purushottam, who is informant, PW-2 Harilal, PW-3 Addya Singh and PW-4 Jagdish Singh and all the prosecution witnesses have named the revisionists that they have also participated in the alleged crime. After the statement of prosecution witnesses, the prosecution has moved an application under Section 319 Cr.P.C. to summon the revisionists. The application filed by prosecution was allowed by the learned trial court on 30.05.2023 and the revisionists and one Salim were summoned to face trial.

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It is submitted by learned counsel for the revisionists that the revisionists are innocent and they have been falsely implicated in this case. The Investigating Officer after conducting fair

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investigation has not found any evidence against the revisionists and the charge sheet has been submitted only against Azharuddin, whereas, other co-accused including the revisionists have been exonerated. It is further submitted that the learned trial court has erred in summoning the revisionists to face trial.

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On the other hand, learned counsel appearing on behalf of opposite party no. 2 submits that the revisionists are named in the first information report and the Investigating Officer without conducting fair investigation has submitted charge sheet only against accused Azharuddin, whereas, the present revisionists and other co-accused Salim were exonerated. It is further submitted that all the prosecution witnesses have disclosed the names of revisionists that they have also accompanied with Azharuddin in commission of alleged crime

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Before considering the merits of the contention of rival parties, it is necessary to refer 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.

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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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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

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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 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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108. Thus, we hold that though only a prima facie case is to be established

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from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, 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 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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From perusal of impugned order dated 30.05.2023, it is apparent that the learned trial court after considering the averments of FIR, the statements of informant and other witnesses recorded during investigation as well as statements before the Court had recorded its prima-facie satisfaction that there are sufficient material regarding involvement of the revisionists in the offence as alleged in the first information report and after considering the entire evidence and material which are available, has rightly allowed the application under Section 319 Cr.P.C. and summoned the revisionists to face trial under Sections 302 and 120B I.P.C. No ground for interference is made out. The criminal revision being devoid of merit is liable to be dismissed.

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The criminal revision is dismissed accordingly.

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Interim order, if any, stands discharged.

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Order Date :- 10.10.2023 sailesh

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Digitally signed by :- SAILESH PRAJAPATI High Court of Judicature at Allahabad

Muniv and 2 Others v. State of U.P. and Another

Case brief

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Muniv and 2 Others v. State of U.P. and Another

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