Dismissed

Mohd. Salim Muktar Ahmad Khan @ Peer Ali v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Allahabad HC13 Feb 2024/118/2024

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision challenging the summoning of an accused under Section 319 Cr.P.C. The court held that witness statements, though initially exculpatory in 161 Cr.P.C., were consistent in examination-in-chief, establishing a prima facie case warranting trial.

What did the court decide?

Application under Sections 397/401 Cr.P.C. dismissed; impugned order summoning revisionist upheld.

Mohd. Salim Muktar Ahmad Khan @ Peer Ali Vs… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:13142

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Court No. - 27

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Case :- CRIMINAL REVISION No. - 118 of 2024

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Revisionist :- Mohd. Salim Muktar Ahmad Khan @ Peer Ali Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Revisionist :- Ramakar Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Ramakar Shukla, the learned counsel for the applicant, Sri Gyanendra Singh, the learned AGA for the State and perused the record.

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By means of the instant revision filed under Section 397/401 Cr.P.C., the revisionist has sought quashing of an order dated 16.12.2023 passed by the learned Additional Sessions Judge/Special Judge (POCSO Act), Court No. 13, Sultanpur, summoning the revisionist and one Saif Ali, son of Haneef under Section 319 Cr.P.C. to face trial of offences under Sections 147, 323, 506 IPC in Sessions Trial No. 174/2015.

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In the FIR lodged on 30.04.2012, it was alleged that Peer Ali (the revisionist), Ramzan Ali, Waris Ali, Ashiq Ali, Sadiq Ali, Mukhtar and Saif Ali had assaulted the informant. In his statement recorded under Section 161 Cr.P.C., the informant reiterated the FIR version. The statement of one Mukhtar was also recorded, who stated that he had not seen Peer Ali and Saif Ali committing the offences. The statement of some other persons were also recorded who stated that Peer Ali and Saif Ali were not involved in commission of offences. After investigation a charge sheet was submitted against 5 accused persons and no charge sheet was submitted against the applicant and Saif Ali.

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During trial the informant was examined as PW-1 and one Mukhtar was examined as PW-2 and both of them stated that all the seven persons named as accused in the FIR had committed the offences. Although Mukhtar Ali had stated in his statement recorded under Section 161 Cr.P.C. that he had not seen the revisionist and Saif Ali committing the offences, he resiled from this statement before the trial court and he stated that he did not know as to how it was recorded by the Investigating Officer.

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After examination of the aforesaid witnesses, the complainant gave an application under Section 319 Cr.P.C. stating that he had implicated the applicant and Saif Ali in the FIR, and in his statement recorded under Section 161 Cr.P.C. From the statements of PW-1 & PW-2 also, involvement of the revisionist and Saif Ali in commission of the offence is established and, therefore, they should be summoned to face the trial. The application under section 319 Cr.P.C. has been decided by means of the impugned order dated 16.12.2023 wherein the trial court has held that from the statements of PW-1 &

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PW-2, a case for summoning the applicant and Peer Ali to face trial of offences under Sections 147, 323, 506 IPC is made out.

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While assailing the aforesaid impugned order the learned counsel for the revisionist has submitted that it is recorded in the impugned order dated 16.12.2023 that in the statement recorded under Section 161 Cr.P.C. apart from the complainant, no other witnesses had implicated the applicant in his statement recorded under Section 161 Cr.P.C. and this fact has been ignored by the trial court while summoning the applicant. He has relied upon a decision of the Hon'ble Supreme Court in the case of Brijendra Singh & Ors. v. State of Rajasthan : (2017) 7 SCC 706. In that case, the applicant had been implicated by the persons, whose statements were recorded under Section 161 Cr.P.C.

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In that case, the complainant and others who supported the version in the FIR regarding alleged presence of the applicant at the place of incident, had also made statements under Section 161 Cr.P.C. to the same effect. Not withstanding the same, the police investigation revealed that the statements of these persons regarding presence of the applicant at the place of occurrence was doubtful and did not inspire confidence in view of the documentary and other evidences collected during investigation, which depicted another story and clinchingly showed that the applicant's plea of alibi was correct. In this factual backdrop, the Hon'ble Supreme Court held that:-

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"15. This record was before the trial court. Notwithstanding the same, the trial court went by the depositions of the complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the “evidence” recorded during trial was nothing more than the statements which were already there under Section 161 CrPC recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where a plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty-bound to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record."

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The judgment in Brijendra Singh (supra) was passed in the peculiar factual background of the case, where all the persons examined under Section 161 Cr.P.C. had alleged complicity of the applicant in commission of offence, which allegation was found to be false on the basis of other evidence, including the documentary evidence collected by the Investigating Officer. The statements given under Section 161 Cr.P.C. were available before the trial court at the time of taking cognizance of the offence and summoning the accused persons and yet the persons against whom statement under Section 161 were given, were not summoned to face the trial. The same statements were repeated in examination of witnesses during the trial and the trial court summoned the accused persons under Section 319 Cr.P.C. on the basis of statements, which were already there in the shape of statements under Section 161 Cr.P.C. at the time of taking of the cognizance.

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In these factual background, the Hon'ble Supreme Court had made the aforesaid observations. In the present case, the complainant had stated about the applicant's complicity in commission of the offence in his statement recorded under Section 161 Cr.P.C. but in the statement of all other persons recorded under Section 161 Cr.P.C., they had stated that the applicant and Saif Ali were not involved in commission of offence. No other evidence was collected during investigation regarding involvement of the applicant in commission of the offence or otherwise. In the statements of PW-1 & PW-2, they categorically stated about involvement of the applicant in the commission of the offence and PW-2 further stated that he had told the applicant's involvement in commission of offence to the Investigating Officer during his statement under Section 161 Cr.P.C. but the Investigating Officer has incorrectly recorded his statement.

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In Hardeep Singh v. State of Punjab : (2014) 3 SCC 92, the Hon'ble Supreme Court has held that:-

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"106. 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."

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In case the statements of PW-1 and PW-2 remain uncontroverted, there will be a very strong possibility of the applicant's conviction. Although the trial court is not required to record a satisfaction of the material being sufficient for conviction of the applicant while examining the existence of 'more than a prima facie case used by the Hon'ble Supreme Court in Hardeep Singh (supra), it appears that the statements of PW-1 and PW-2 make out a very strong case against the applicant, which would warrant his trial for the alleged offences.

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In view of the aforesaid discussion, I do not find any illegality in the impugned order dated 16.12.2023 passed by the learned Additional Sessions Judge/Special Judge (POCSO Act), Court No. 13, Sultanpur, summoning the revisionist and one Saif Ali, son of Haneef under Section 319 Cr.P.C. to face trial of offences under Sections 147, 323, 506 IPC in Sessions Trial No. 174/2015.

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The application lacks merit and the same is accordingly dismissed .

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Order Date :- 13.2.2024 Pradeep/-

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Digitally signed by :- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Salim Muktar Ahmad Khan @ Peer Ali v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Mohd. Salim Muktar Ahmad Khan @ Peer Ali v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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