This revision sought quashing of an order summoning petitioners to face trial under Section 319 CrPC in a murder case. The High Court held that evidence point to involvement and disposed of the revision without interfering.
Application disposed of without interfering in the impugned order dated 06.02.2016.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 682 of 2016
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Versus
CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
--For the Petitioners : Mr. Sameer Saurabh, Advocate For the State : APP. For the O.P. No. 2 : Mr. Amarendra Kumar, Advocate ---
07/6.8.2018 Heard the parties.
This application is directed against the order dated 6.2.2016, passed by the learned Sessions Judge, Koderma in connection with Jai Nagar P.S. Case No. 90 of 2014, whereby and whereunder the application preferred by the prosecution under section 319 of Cr.P.C. for summoning the petitioners to face the trial has been allowed.
It has been submitted by the learned counsel for the petitioners that initially the petitioners were saddled with the same allegation in the FIR but the final form was submitted in their favour and the protest petition, which was also filed by the informant was dismissed. It has further been submitted that in course of trial, some of the witnesses have absolved the husband of the deceased whereas implicated the petitioners of taking part in commission of the offence as there was a consistent demand of Rs.5,00,000/- from the deceased. It has also been submitted that the impugned order dated 6.2.2016 has merely concentrated on the case diary and the evidence of the witnesses in course of investigation, which is not permissible in view of the provision of section 319 of Cr.P.C. Learned counsel submits that Section 319 of Cr.P.C. is an extra ordinary power which has to be used though stringently. Learned counsel submits that the evidence of the witnesses, based on which, the application has been allowed could not lead to a conviction of the petitioners for the offence under section 302 of the Indian Penal Code. Learned counsel further submits that although there is an allegation of demand of dowry of Rs.5,00,000/-but the FIR was never instituted under section 498A of the Indian Penal Code and even charge was not framed against the husband of the deceased under section 498A of the Indian Penal Code. It has been submitted that the none of the witnesses are eye witnesses and conviction is based on the evidence of the said eye witnesses and the prosecution will not be able to get the conviction of the petitioners on the basis
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of the said witnesses.
Learned counsel while stressing upon the condition required for allowing the application under section 319 of Cr.P.C. has referred to the judgement rendered in the case of Hardeep Singh Vs. State of Punjab and others reported in (2014)3 SCC 92. He has also referred to the case of Sarabjit Singh & Anr. Vs. State of Punjab & Others reported in 2009 16 SCC 46. Learned counsel also placed reliance on Section 306 of IPC while stating that no offence under section 302 of IPC is made out against the petitioners and therefore the discretion which has been exercised by the learned trial court was not appropriate in terms of the guidelines laid down by the Hon’ble Supreme Court in the case of Hardeep Singh(Supra).
Learned counsel for the O.P. No. 2 has opposed the prayer made by the learned counsel for the petitioners and has stated that in view of the consistent evidence of P.Ws, 1, 2, 3 and 4, the learned court below had properly exercised its discretion while summoning the petitioners to face the trial by allowing the application under section 319 of Cr.P.C.
On consideration of the arguments advanced by the learned counsel for the parties and on going through the judicial pronouncements, it appears that initially the FIR was instituted for the offences under sections 302, 201/34 of the Indian Penal Code against five accused persons including the husband and the present petitioners. In the FIR, it had been specified that a demand of dowry of Rs.5,00,000/- was made on behalf of the accused persons with a threat that if the said amount is not fulfilled, the deceased shall be done to death. After investigation, chargesheet was submitted only against husband of the deceased-Umesh Yadav and so far as petitioners are concerned, final report was submitted in their favour. On being noticed, the informant preferred a protest petition, which, however, was also dismissed on 31.7.2015. The husband namely Umesh Yadav was proceeded against and charge was framed under section 302 of the Indian Penal Code and in course of trial, four witnesses were examined, all of whom, were declared hostile by the prosecution since they did not depose as against the husband namely Umesh Yadav. However, all the four witnesses have stated about the participation/involvement of the petitioners in demanding Rs.5,00,000/- as dowry and committing the death of the deceased. On such parameters, therefore, prosecution had preferred an application under section 319 of Cr.P.C., which, however, was allowed by the impugned order dated 6.2.2016.
Although, learned counsel for the petitioners has stated that the learned trial court had placed undue reliance on the evidences collected in course of
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investigation but it appears that although reference has been made to various paragraphs of the case diary as well as the postmortem report and the inquest report but primary consideration has been made to the evidence of P.Ws.1,2, 3 and 4, on whose evidence, the application under section 319 of Cr.P.C. was allowed. Therefore, it cannot be concluded that merely on the basis of the materials collected in course of investigation, the application under section 319 of Cr.P.C. had been allowed.
So far as the principles, which guide an application under section 319 of Cr.P.C. are concerned, learned counsel has referred to the judgment in the case of Hardeep Singh(Supra). He has primarily relied upon the findings recorded in paragraphs 76 & 78 of the said judgement and which is quoted hereunder:-
“76. Ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached. A bare perusal of Section 227 CrPC would show that the legislature has used the terms “record of the case” and the “documents submitted therewith”. It is in this context that the word “evidence” as appearing in Section 319 CrPC has to be read and understood. The material collected at the stage of investigation can at best be used for a limited purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict the statements of the witnesses recorded before the court. Therefore, for the exercise of power under Section 319 CrPC, the use of word “evidence” means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319 CrPC.
78. It is, therefore, clear that the word “evidence” in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation”.
It is therefore absolutely clear that while considering the application under section 319 of Cr.P.C., the materials collected in course of trial have to be considered.
So far as the discretion and extra ordinary power as contained in Section 319 of Cr.P.C. is concerned, it has been held as follows:-
93. Section 319(1) CrPC empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word “appear” means “clear to the comprehension”, or a phrase near to, if not synonymous with “proved”. It imparts a lesser degree of probability than proof.
105. Power under Section 319 CrPC 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
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before the court that such power should be exercised and not in a casual and cavalier manner.
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 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.
It has been held that the degree of proof which is required while considering the application under section 319 of Cr.P.C. is of a much higher grade than that at the time of taking of cognizance.
The case against the prosecution has been weakened in view of the witnesses turning hostile and such circumstances therefore warrant that the petitioners also face trial since there is a cogent statement made by the witnesses examined on behalf of the prosecution implicating the petitioners for demanding an amount of Rs.5,00,000/- and causing death of the daughter of the informant. Therefore, the evidences of the witnesses, if considered in the surrounding circumstances as noted above does suggest that there is more than a prima facie evidence available to proceed against the petitioners in the trial.
In such circumstances, therefore, the impugned order dated 6.2.2016, passed by the learned trial court does not require any interference. This application is disposed of without interfering into the impugned order. However, any observation made in this order shall not prejudice the learned trial court.
(Rongon Mukhopadhyay,J)
Rakesh/-
3 issues framed by the court
Whether the High Court should interfere with the impugned order allowing the prosecution to summon petitioners under Section 319 CrPC.
Whether material collected during investigation can be the sole basis for summoning an accused under Section 319 CrPC.
Whether the evidence led in trial against the petitioners satisfies the test for exercising extraordinary power under Section 319 CrPC.
Colour shows how this judgement treated each authority
Hardeep Singh Vs. State of Punjab and othersExplained¶18
(2014) 3 SCC 92 · Who else cites this
Sarabjit Singh & Anr. Vs. State of Punjab & OthersReferred¶18
2009 16 SCC 46 · Who else cites this
2 provisions across 2 enactments
Dinesh Yadav and Others
The State of Jharkhand
Ramdhani Yadav
Rongon Mukhopadhyay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
