Allowed

Mohd Rafeeq v. State of Up Others

Allahabad HC2 Jul 2024CRLR/2278/2024

Case brief

AI extract

What is this about?

This criminal revision challenged an order summoning the revisionist under Section 319 Cr.P.C. for trial in a criminal case. The High Court held that the trial court's order was jurisdictional error because the prosecution witnesses' depositions departed from their prior Section 161 statements without explanation, failing to establish strong and cogent evidence of complicity.

What did the court decide?

The impugned order dated 25.07.2023 summoning the revisionist to face trial was set aside. No order as to costs.

Mohd Rafeeq vs State of Up Others — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:112050 Reserved on: 02.07.2024

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Delivered on: 08.07.2024

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Court No. - 64

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Case :- CRIMINAL REVISION No. - 2278 of 2024

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Revisionist :- Mohd Rafeeq Opposite Party :- State Of Up Others Counsel for Revisionist :- Shrawan Kumar Tripathi Counsel for Opposite Party :- Furquan Ahmad (Alvi),G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Shrawan Kumar Tripathi, the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1 and Mr. Furquan Ahmad (Alvi), the learned counsel representing first informant/opposite party 2.

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2. Perused the record.

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This criminal revision has been filed challenging the order dated 25.07.2023, passed by Judicial Magistrate, Sant Kabir Nagar in Case No.7648 of 2015 (State Vs. Irfanullah and others), arising out of Case Crime No.1880 of 2014, under Sections 323, 325, 504 and 506 IPC, Police Station -Ghanghata, District-Sant Kabir Nagar, whereby court below has allowed the application dated 29.08.2022, under Section 319 CrPC filed by the prosecution/first informant/opposite party-2. Consequently, revisionist, who is a prospective accused, has now been summoned by court below to face trial under Sections 323, 325, 504 and 506 IPC in aforementioned criminal case along with charge sheeted accused.

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Record shows that in respect of an incident, which is alleged to have occurred on 04.12.2013, a NCR report was lodged on 04.12.2013 under Sections 323, 504, 506 IPC. In the aforesaid report, four persons, namely, Irfanullah, Dumran, Adil and Fisu have been nominated as accused.

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It transpires from the record that proceedings under the Code (Cr.P.C.) were undertaken by opposite party-2 for police investigation of aforementioned NCR. Accordingly, the police of concerned police station conducted the statutory investigation. During course of investigation, Investigating Officer examined the statement of opposite party-2 (now first informant) under Section 161 Cr.P.C. The same is on record at page 41 of the paper book. However, opposite party-2 in his statement referred to above has not taken the name of present revisionist qua his complicity/active participation in the crime in question. Apart from above,

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Investigating Officer also examined various other witnesses under Section 161 Cr.P.C. Their statements are on record from page 43 to 47 of the paper book. However, none of the witnesses so examined have alleged anything adverse against the present revisionist.

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Ultimately, upon completion of investigation of concerned case crime number, Investigating Officer the police report in terms of Section 173 (2) CrPC dated 31.05.2014, in Case Crime No.1880 of 2014, under Sections 323, 325, 504 and 506 IPC, whereby three of the named accused namely Irfanullah, Aadil and Feshu were chargesheeted under Sections 325, 323, 504, 506 IPC.

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After submission of aforementioned police report (charge-sheet) in terms of Section 173 (2) CrPC, the concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. took cognizance upon same and summoned the charge sheeted accused to face trial. Thereafter, charges were framed against the chargesheeted accused, who denied the same and pleaded innocence. Resultantly, the trial procedure commenced.

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The prosecution, in discharge of its burden to bring home the charges so framed against the charge-sheeted accused, adduced PW-1 Aminuddin and PW-2 Mohd. Deen up to this stage. After the statement-in-chief/examination-in-chief of aforementioned witnesses were recorded, prosecution/opposite party-2 filed an application dated 29.08.2022 under Section 319 CrPC praying therein that since as per the depositions of PW-1 and PW-2, complicity of Gufran, Usmani, Mohd. Rafeeq, Jiyhaul Baba, Tannu, Jaki, Haleem and Annu is also established in the crime in question therefore, they be also summoned to face trial in aforementioned criminal case.

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The court below examined the application under Section 319 CrPC filed by the prosecution/opposite party-2 in the light of the allegations made in the application itself as well as the depositions of PW-1 and PW-2. Upon evaluation and examination of the same, court below came to the conclusion that prima-facie complicity of Gufran, Usmani, Mohd. Rafeeq, Jiyhaul Baba, Tannu, Jaki, Haleem and Annu is established in the crime in question. Accordingly, they are liable to be summoned under Sections 323, 325, 504, 506 IPC. Resultantly, court below vide order dated 25.07.2023 allowed the application dated 29.08.2022 under Section 319 Cr.P.C. filed by the prosecution/opposite party-2 and consequently, summoned the prospective accused i.e. revisionist herein under Sections 323, 325, 504 and 506 IPC to face trial in aforementioned Sessions Trial.

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Thus feeling aggrieved by the above order dated 25.07.2023, Mohd. Rafeeq, the revisionist, who has been summoned by court below to face trial in aforementioned Sessions Trial, has now approached this Court by means of present criminal revision.

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Mr. Shrawan Kumar Tripathi, the learned counsel for revisionist contends that order impugned in present criminal revision is manifestly illegal and in excess of jurisdiction. Consequently, the

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same is liable to be set aside by this Court. In continuation of his aforesaid submission, the learned counsel for revisionist has invited the attention of Court to the NCR report, copy of which is on record at page 37-A of the paper book. With reference to above, he submits that revisionist is not named in the said NCR report. Attention of the Court was then invited to the police report submitted under Section 173 (2) CrPC and on basis thereof he contends that the charge-shjeet was submitted against three out of four accused named in the NCR report. With reference to above, the learned counsel for revisionist contends that no protest petition was filed by the first informant/revisionist before court below against the aforementioned police report in the light of law laid down by Apex Court in. Bhagwant Singh Vs. Commissioner of Police and Another, (1985) 2 SCC 537 .

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Learned counsel for revisionist has then invited the attention of Court to the impugned order and on basis thereof he contends that neither the NCR report was registered under Sections 34, 120-B and 149 IPC nor the charge-sheet was submitted under Sections 34, 120-B and 149 IPC. As such, neither there is a common object nor a common intention with the revisionist to commit the crime in question nor it can be said that revisionist has conspired in the commission of the crime in question. The court below has not summoned the revisionist under Sections 34, 120-B and 149 IPC either. In the absence of any prima facie satisfaction to the effect that there is a common intention with the accused to commit the crime in question or that revisionist is a member of an unlawful assembly with a common object or the revisionist has conspired in the commission of the crime in question, the summoning of revisionist by the Court below cannot be sustained. As per the deposition of PW-1 and PW-2, the ingredients of Sections 34, 120-B and 149 IPC (conspiracy) are also not established. In the absence of above, the Court below has summoned the revisionist only on the basis of an inference regarding the complicity of revisionist in the crime in question. As such, the summoning of revisionist by court below under Sections 323, 325, 504, 506 IPC to face trial in aforementioned Sessions Trial cannot be sustained in law and fact.

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It is further contended by the learned counsel for revisionist that though NCR report is not an encyclopedia of the prosecution case but it must disclose the basic prosecution case. With reference to above, he contends that no allegation has been made in the NCR report against the present revisionist nor the name of revisionist is mentioned in aforementioned NCR. However, it is subsequently in the deposition of PW-1 and PW-2 that the name of present revisionist has surfaced. On the above premise, he contends that revisionist has been implicated in the crime in question on account of an after thought. The complicity of revisionist in the crime in question is sought to be alleged by PW-1 and PW-2 on the basis of non existent fact/such facts, which were not part of the investigation. Admittedly, the statements of PW-1 and PW-2 were recorded by the Investigating Officer under Section 161 Cr.P.C.

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However, no allegation has been made by aforementioned witnesses in their previous statements under Section 161 Cr.P.C. regarding the complicity of present revisionist in the crime in question or any active role having been played by the present revisionist in the crime in question. As such, PW-1 and PW-2 in their depositions before Court below have departed from their previous statements recorded under Section 161 Cr.P.C. No explanation has come forward explaining the departure so made. Court below while passing the impugned summoning order has failed to consider the aforesaid aspect of the matter, which has vitiated the order impugned. As such, the impugned summoning order passed by court below cannot be sustained and is therefore liable to be set aside by this Court.

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Per contra, the learned A.G.A. for State and the learned counsel representing opposite party 2 have vehemently opposed the present criminal revision. They submit that since as per the depositions of PW-1 and PW-2 the complicity of revisionist in the crime in question is fully established as specific role of assault is assigned to the prospective accused upon PW-1-Aminuddin by Lathi and Danda. As such, it is not only the mere complicity of the revisionist, which has emerged in the crime in question but also strong and cogent evidence has emerged against revisionist qua his active participation in the crime in question. As such, no illegality can be said to have been committed by court below in passing the order impugned. It is well settled that Court, while dealing with an application under Section 319 Cr.P.C., is not required to hold a mini trial but has to just record it's prima-facie satisfaction regarding the guilt of a prospective accused in the crime in question. If on the basis of above, an inference regarding the guilt of a prospective accused in the crime in question can be inferred, court concerned shall be well within it’s jurisdiction to summon a prospective accused to face trial. Court below upon due and proper appraisal and appreciation of the material on record and also the depositions of PW-1 and PW-2 has returned a categorical and cogent finding that it is not only the complicity of prospective accused i.e. the revisionist herein along with other prospective accused that has emerged but also as per the depositions of PW-1 and PW-2, it is fully established that the prospective accused have actively participated in the commission of the crime in question. It is on the basis of above that Court below has summoned the revisionist. As such, no interference is warranted by this Court in the order impugned. The present criminal revision is concluded by findings of fact, which could not be dislodged by the learned counsel for revisionist as being illegal, perverse or erroneous. Once the findings recorded by Court below does not stand dislodged, the conclusion drawn by Court below cannot be altered. As such, the order impugned is not liable to be interfered with by this Court. Consequently, the present criminal revision is liable to be dismissed.

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Having heard the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party 2

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and upon perusal of record, this Court finds that the primary question, which arises for consideration in present revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As a corollary to above, Court will also have to consider;Whether the order impugned is in conformity within the established parameters or not.

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Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by Apex Court. The chronology of same is as under:

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

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

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Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.

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

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Paragraphs 7, 8, 9, 15, 20, 21 and 22.

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

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Paragraph 13.

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(v). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177 ,

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

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Paragraphs 13, 14 and 15.

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

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Paragraphs 31, 32, 33, 34, 35, 36 and 37.

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

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Paragraph 7.

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

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Paragraph 8 and 9.

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(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.

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

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Paragraphs 13 and 14.

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

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Paragraphs 10, 11 and 12.

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(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.

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(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27

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

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Paragraphs 13, 14, 15, 16 and 17

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

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Paragraphs 12, 13, 14, 15 and 16.

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

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Paragraphs 18, 19, 20, 21, 22 and 23.

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(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323,

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(xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301

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

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Paragraphs 14, 15, 16 and 17

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

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Paragraphs 34, 35, 36, 37 and 38.

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(xxii) Ramesh Chandra Srivastava Vs. The State of U.P. and

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another, 2021 SCC Online (SC) 741

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Supreme Court remanded the matter before Sessions Judge for decision afresh.

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(xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289

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(xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537

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(xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench),

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Paragraphs 7, 37, 38 and 41.

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(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344,

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(xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211,

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(xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108,

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Paragraphs 39, 40, 41, 42 and 43.

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(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888,

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(xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375

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(xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172

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(xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174

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(xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.

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With the aid of above, this Court now proceeds to examine the veracity of the impugned order dated 25.07.2023, passed by Judicial Magistrate, Sant Kabir Nagar in Case No.7648 of 2015 (State Vs. Irfanullah and others), arising out of Case Crime No.1880 of 2014, under Sections 323, 325, 504 and 506 IPC, Police Station - Ghanghata, District-Sant Kabir Nagar, whereby the application dated 17.01.2023 under Section 319 Cr.P.C. filed by the opposite party-2 has been allowed and consequently, revisionist has been summoned by Court below under Sections 323, 325, 504, 506 IPC to face trial

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in aforementioned Criminal Case.

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Before proceeding to do so, it must be noticed that following issues stand settled as per the judgements of the Supreme Court mentioned herein above and, therefore, the same are not required to be dealt with, by this Court.

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A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that noncharge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).

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Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).

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Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).

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The nature of satisfaction required for summoning a non chargesheeted accused to face trial, has been summarized in paragraph106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses 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.

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A prospective accused cannot be summoned under Section 319 Cr.P.C. to face trial merely on the basis of his complicity in the crime in question but only when strong and cogent evidence has emerged against him, vide S. Mohammed Ispahani (supra).

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The power under Section 319 Cr.P.C. is an extra ordinary power which should be exercised sparingly. Courts should exercise their jurisdiction not in a "casual and cavalier" fashion but diligently, vide S. Mohammed Ispahani (Supra).

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The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly, vide paragraph 37 of judgement in Manjeet Singh (Supra).

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The trial Court is competent to exercise it's power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in-chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation, which suggests otherwise, the trial Court is at least duty bound to

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look into the same, while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record, vide Brijendra Singh (Supra).

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The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C, on the basis of the material on record an inference of guilt can be drawn, vide paragraph 15 of judgement in Brijendra Singhs's Case (Supra) .

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An accused who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).

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In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's (Supra) case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.

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In Rajesh and Others (Supra) , it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.

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The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 , was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 . The Court held that "The power under Section 319CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.

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A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him, vide Yashodhan Singh and Others (Supra).

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In Sandeep Kumar (Supra) , the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319

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Cr.P.C.

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Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1, Aminuddin and PW-2, Mohd. Deen, the prospective accused could have been summoned by court below? As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier manner?" .

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Parameters regarding exercise of jurisdiction under Section 319 Cr.P.C. came to be crystallized by a Five Judges Bench judgment of the Supreme Court in Hardeep Singh (Supra). The Bench in aforementioned judgment has held that an application under Section 319 Cr.P.C. can be considered on the basis of the statementin-chief of one prosecution witness only and Court need not wait for the entire prosecution evidence to be recorded. In the present case, the application under Section 319 Cr.P.C. was filed by opposite party-2 after the statement-in-chief/examination-in-chief of PW-1 and PW-2 was recorded. As such, the depositions of PW-1 and PW-2 now falls in the realm of legal evidence. However, irrespective of above, no illegality can be attached to the order impugned on the ground that Court below has proceeded to consider the application under Section 319 Cr.P.C. filed by the prosecution only on the basis of the depositions of two prosecution witnesses and not after the entire prosecution evidence was recorded.

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The next issue which is required to be considered by this Court is whether any satisfaction is required to be recorded by the Court while considering an application under Section 319 Cr.P.C. filed by the prosecution and in case, any such satisfaction is required then what will be the degree of such satisfaction to be recorded by Court for summoning a prospective accused? The issue is no longer resintegra and stands concluded by the Five Judges Bench judgment of Supreme Court in Hardeep Singh (Surpa) , wherein it has been held that the Court while deciding an application under Section 319 Cr.P.C., can allow the said application provided, the degree of satisfaction as explained in paragraph 106 of the report is recorded. For ready reference, paragraph 106 of the aforesaid report is reproduced herein under:-

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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 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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Even though the law with regard to summoning of a prospective accused was crystalized by the Apex Court in the case of Hardeep

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Singh (supra) but, subsequently, Two Judges' Bench judgment of the Apex Court in Brijendra Singh and Others Vs. State of Rajasthan (2017) 7 SCC 706 and S. Mohammed Ispahani Vs. Yogendra Chandak and others (2017) 16 SCC, 226 have narrowed down the scope of interference in exercise of jurisdcition under Section 319 CrPC which is in favour of prospective accused. Thereafter, a Constitution Bench in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 , has re-visited the parameters regarding exercise of jurisdiction under Section 319 CrPC. On conjoint reading of the aforesaid judgments, the following mandate stands emerged:-

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(a) a prospective accused can be summoned under Section 319 Cr.P.C. upon consideration of the statement-in-chief of one prosecution witness. As such, Court concerned need not wait for the entire prosecution evidence to be recorded.

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(b) the plethora of evidence collected by the Investigating Officer during course of investigation is required to be looked into by a Court dealing with an application under Section 319 Cr.P.C. as it is relevant material.

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(c) Court while dealing with an application under Section 319 Cr.P.C. must examine the statement of the witness recorded under Section 161 Cr.P.C. and thereafter, draw a parallel to find out whether something new has emerged in the deposition of such a witness.

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(d) a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question

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(e) Court can summon a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. only if, an inference of guilt of the prospective accused can be gathered from the material on record.

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(f) jurisdiction under Section 319 Cr.P.C. is an extra-ordinary discretionary jurisdiction and should be exercised sparingly.

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(g) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual and cavalier fashion.

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(h) a prospective accused can be summoned only when some strong and cogent evidence has emerged against him and not merely on the basis of his complicity in the crime in question.

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When the order impugned is examined in the light of aforementioned parameters, it is clearly established that both the prosecution witnesses examined upto this stage are eye-witnesses of the occurrence. Their statements were also recorded by the Investigating Officer under Section 161 Cr.P.C. However, when a parallel is drawn in between the statements of PW-1 and PW-2 recorded under Section 161 Cr.P.C. and their depositions before Court below, the Court finds that both the prosecution witnesses have not even alleged the complicity of present revisionist in the crime in question. Furthermore, the independent witnesses and other eye witnesses examined by the Investigating Officer under

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Section 161 Cr.P.C. have also not stated anything adverse against the present revisionist. PW-1 and PW-2 in their depositions before Court below have thus departed from their previous statements recorded under Section 161 Cr.P.C. No explanation has come forward from PW-1 and PW-2 explaining the departure so made. As such, PW-1 and PW-2 have not remained consistent in their statements. Consequently, the depositions of PW-1 and PW-2 suffers from the vices of embellishment, exaggeration and contradiction. In view of above, no satisfaction qua the guilt of the revisionist can be inferred. Considering the guidelines laid down by the Apex Court in Brijendra Singh (Supra) and S. Mohammad Ishpahani (Supra) , this Court finds that no prima-facie case is made out against the revisionist. Apart from above, as per the material on record, particularly the statements of the independent witnesses and eye witnesses of the occurrence coupled with the fact that PW-1 and PW-2 have not explained the same in their depositions before Court below, no inference regarding the guilt of revisionist can be inferred either. As such, no cast iron case is made out to summon the prospective accused i.e. the revisionist to face trial in abovementioned Sessions Trial.

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In view of the discussion made above, it is thus apparent that Court below while passing the order impugned has not only committed a jurisdictional error but has also exercised it’s jurisdiction with material irregularity warranting interference by this Court.

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As a result, the present criminal revision revision succeeds and is liable to be allowed.

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It is, accordingly, allowed .

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The impugned order dated 25.07.2023, passed by Judicial Magistrate, Sant Kabir Nagar in Case No.7648 of 2015 (State Vs. Irfanullah and others), arising out of Case Crime No.1880 of 2014, under Sections 323, 325, 504 and 506 IPC, Police Station - Ghanghata, District-Sant Kabir Nagar is, hereby, set aside.

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Considering the facts and circumstances of the case, there shall be no order as to costs.

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Order Date :- 08.07.2024 Rks.

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

Mohd Rafeeq v. State of Up Others

Case brief

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Mohd Rafeeq v. State of Up Others

Case brief

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