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Mohit @ Sonu & Anr vs State Of U.P.& Anr on 1 July, 2013

Supreme Court of India Mohit @ Sonu & Anr vs State Of U.P.& Anr on 1 July, 2013Author: M Eqbal Bench: P. Sathasivam, M.Y. Eqbal

‘REPORTABLE’

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 814 OF 2013

(Arising out of SLP (CRL.) No.1619 of 2010)

Mohit alias Sonu and Another

…..Appellants

Versus

State of U.P. and Another

….Respondents

J U D G M E N T

M.Y. EQBAL, J.

Leave granted.

2. This appeal is directed against the order dated 28th October, 2009 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No. 22823 of 2009 whereby the order dated 3rd August, 2009 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Mathura, rejecting the application moved by the complainant/respondent No. 2 herein under Section 319 of the Code of Criminal Procedure, 1973 in Sessions Trial No. 420 of 2007 was set aside and the trial court was directed to summon the accused/appellants herein.

3. The complainant/respondent No. 2 herein (Deepak) lodged an FIR naming seven persons as accused regarding the occurrence which took place on 7th February, 2003 at 10.30 p.m. stating that the accused persons named in the FIR armed with lathi, danda and hockey caused injuries to his uncle Kamta Prasad as well as to the complainant. The complainant was medically examined on 8th February, 2003 and a lacerated wound of 4 cm x 0.8 cm scalp deep on left side back of his skull was reported by the doctor. Kamta Prasad succumbed to his injuries alleged to have been caused by the accused. The accused were named in the FIR vide Case Crime No. 44/03 under Sections 147, 323, 504, 506, 304 of the Indian Penal Code (in short, “I.P.C.�). The injured complainant as well as other witnesses were examined by the Investigating Officer (I.O.), but the I.O. submitted charge-sheet only against five accused leaving the names of two accused who are appellants before us. After committal of the case for trial, the trial court in S.T. No. 420 of 2007 examined the complainant as PW-1. In his examination- in-chief, the complainant specifically stated the role of the appellants herein in the occurrence. The complainant then moved an application under Section 319 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) for summoning the appellants herein as accused in the case. However, the trial court vide order dated 25th July, 2008 disposed of the application in view of the fact that cross-examination of PW-1 had not completed and the fact had not been cleared from the witness that there existed probability of the conviction of the appellants herein. On a Criminal Miscellaneous Application being filed under Section 482 of Cr.P.C. before the High Court of Judicature at Allahabad against the above order, the High Court vide judgment and order dated 3rd September, 2008 found no error in the order passed by trial court as the trial court had till then not finally decided the question of summoning the appellants and had simply postponed the issue as it thought that the matter should receive its due and proper consideration only after the cross-examination of the witness is over. Subsequently, PW-2 Vivek and PW-3 Deepak Kumar Dubey were also examined apart from the complainant. The second application filed under Section 319, Cr.P.C. was also rejected by the trial court vide order dated 3rd August, 2009 after considering various legal pronouncements, discussing the statements of PW-1, PW-2 and PW-3 and finding out that the evidence on record is improper and contradictory. Challenging this order, the complainant again filed a Criminal Miscellaneous Application under Section 482, Cr.P.C. which was allowed by the High Court vide order dated 28th October, 2009 impugned herein holding that the lower court committed error in rejecting the application of the complainant/respondent No.2 for summoning the accused-appellants herein despite the prima facie evidence adduced by the prosecution disclosing their involvement in the alleged occurrence for which the other accused are facing the trial on the same facts of the case. The High Court by the impugned order directed the lower court to summon the accused- appellants herein as per provisions under Section 319, Cr.P.C.

4. In arriving at its conclusion, the High Court in the impugned order observed as under:

“3. …. From the perusal of the statements of the witnesses, it appears that the accused persons named Mohit and Sarthak also have committed the offence. There is ample evidence against the accused persons. They are named in the F.I.R. They are named in the statements of the witnesses recorded by the investigating officer as per provisions under section 161 Cr.P.C. There is specific role attributed to the accused persons and it cannot be said that they have not participated in the crime. The learned lower court relying on the assertion made on the affidavit of some witnesses which cannot be read at the stage of summoning the accused persons under section 319 Cr.P.C., wrongly discussed the evidence of the witnesses on record in a cursory manner thereby rejecting the application of the applicant. …… therefore, they are liable to be summoned.

xxx xxx xxx

6. In the light of the law as is aforesaid, the perusal of the impugned order revealed that lower court committed error thereby discussing the evidence and appreciating the contradictions and the affidavits on record, thereby finding that the evidence of the witnesses is not acceptable being irrelevant in the absence of any motive against the accused persons sought to be summoned in this case. Since the witnesses have stated that accused Mohit alias Sonu and Sarthak alias Babbal have taken part in inflicting injuries to Deepak and Kamta Prasad, therefore the case of accused Mohit and Sarthak cannot be set apart from other accused persons charge sheeted and against whom the trial is going on, thereby finding the improbability of the conviction of accused Sarthak and Mohit regarding their participation in the occurrence along with other co-accused persons facing trial. The citations referred for taking recourse of the finding by lower court is not of the nature for finding the conclusive proof of conviction of the accused persons sought to be summoned rather it is held therein that there must be reasonable prospectus of the case against the newly added accused ending in the conviction for the offence concerned for summoning of the accused. Reasonable prospectus of conviction has been wrongly discussed by the lower court replacing it to the conclusive proof of the conviction with a detailed discussion ……. The discretionary power vested in the court as per provisions under section 319 Cr.P.C. is supposed to be used thereby finding a prima facie case made out against the accused. While there is allegation of same contribution of the accused Sarthak and Monu in the alleged occurrence as remained of other co-accused persons facing trial, how the case of Monu and Sarthak may be separated giving interim finding affecting the case of the other co-accused too in the case, trial of which is going on before the court on the same allegations against the accused in trial.

xxx xxx xxx

8. Thus the learned lower court thereby analyzing the evidence on record wrongly took recourse of the facts that PW-2 and PW-3 have not proved the injuries on their persons despite the fact that they were stating that the injuries were received by them in the alleged occurrence. Similarly it is also wrongly analysed at this stage by the learned lower court that Mudgal (weapon of assault) by which the deceased is said to have been assaulted, is not mentioned in the F.I.R. Merely calling for Ramveer may not be the outcome of the alleged occurrence is also wrongly held at this stage by the learned lower court because the learned lower court was not supposed to give finding at this stage pertaining to the facts of entire trial to be conducted by the learned lower court. Similarly the alleged affidavits on record have also been wrongly considered for the purpose of finding the contradictions in the statements of the witnesses examined before the trial court.�

Hence, this appeal by special leave.

5. Mr. Amarendra Sharan, learned senior counsel appearing for the appellants while assailing the impugned order passed by the High Court as being illegal and wholly without jurisdiction, raised two important points for consideration. Learned counsel firstly contended that the order passed by the Sessions Court on the application under Section 319 Cr.P.C. refusing to issue summons to the non-accused person ought to have been challenged by the complainant before the High Court invoking its revisional jurisdiction under Section 397/401 Cr.P.C. According to the learned counsel, application of the complainant before the High Court under Section 482 of Cr.P.C. challenging the order passed under Section 319, Cr.P.C. was not maintainable. Secondly, Mr. Sharan submitted that, in any view of the matter, the High Court while exercising its inherent jurisdiction under Section 482 Cr.P.C. ought to have given notice and opportunity of hearing to the appellants before the order of the Sessions Judge was set aside. On the merits of the appeal, learned counsel submitted that the High Court while deciding the petition of the complainant under Section 482 Cr.P.C. on the first motion upset the reasoned order of the trial court and despite the fact that the entire evidence adduced till the decision on the application under Section 319 Cr.P.C. by the trial court was not before the High Court, even then the High Court exercised its discretion without issuing notice and giving opportunity of hearing to the appellants. On the merits of the case, learned counsel contended that for the purpose of exercising power under Section 319 Cr.P.C., the Court must be satisfied about the existence of sufficient evidence on record and not only on the basis of prima facie case. Learned counsel contended that the trial court rightly refused to summon the appellants on the ground that the witnesses were contradicted on their earlier statement and that the witnesses in their statement under Section 164 Cr.P.C. have denied the presence of these appellants. Learned counsel put reliance on the decision of this Court in Sarabjit Singh and Another v. State of Punjab and Another (2009) 16 SCC 46; Hardeep Singh v. State of Punjab and others (2009) 16 SCC 785 and Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others (1983) 1 SCC 1.

6. On the other hand, Mr. Ashok Bhan, learned senior counsel appearing for the respondent/complainant submitted that from the evidence adduced by the witnesses, the role played by the appellants has become apparent and the trial court has committed serious error of law in refusing to issue summons to the non- accused appellants. Learned counsel relied upon the decisions of this Court in Lok Ram v. Nihal Singh and Another (2006) 10 SCC 192; and Sarojben Ashwinkumar Shah and Others. v. State of Gujarat and Another (2011) 13 SCC 316. Mr. Bhan contended that it is the discretion of the Court to give notice to the accused for the purpose of issuing summons against them. According to the learned counsel, there cannot be pre-cognizance herein. Further, the High Court in exercise of power under Section 482 Cr.P.C., can see the correctness and propriety of the order passed by the trial court. Learned counsel relied upon the decision of this Court in Bangarayya v. State of Karnataka and Others (2010) 15 SCC 114.

7. Before going into the merits of the case, we would like to answer the two important points raised by the appellants i.e., (i) whether petition under Section 482 Cr.P.C. before the High Court challenging the order of the Sessions Court passed under Section 319 Cr.P.C. is maintainable; and (ii) whether the High Court before passing the impugned order ought to have given notice and opportunity of hearing to the appellants.

8. Since both the points raised by Mr. Amarendra Sharan, learned senior counsel appearing for the appellants, being interlinked, they are discussed here together. However, before discussing those points, we would like to refer some of the relevant provisions of the Code of Criminal Procedure.

9. Section 397 Cr.P.C. confers power of revision on the High Court or any Sessions Court, which reads as under:- “397. Calling for records to exercise powers of revision– (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation– All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.�

10. Section 399 deals with Sessions Judge’s power of revision, whereas Section 401 deals with the power of revision of the High Court. Section 401 reads as under:-

“401. High Court’s powers of revision– (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.�

11. From bare reading of the aforesaid two provisions, it is clear that in exercise of revisional power under the aforesaid provisions, the High Court can call for the records of any criminal court and examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. However, sub-section (2) of Section 397 puts a restriction on exercise of such power in relation to an interlocutory order passed by the criminal courts in any appeal, inquiry, trial or other proceeding.

12. Similarly, Section 401 empowers the High Court to call for any record in order to examine the correctness, legality or propriety of any order, finding or sentence passed by the inferior courts. However, sub- section (2) categorically provides that no order shall be made by the High Court in exercise of revisional jurisdiction affecting and prejudicing the right of the accused or other person, unless he has been given opportunity of hearing either personally or by pleader in his own defence.

13. Section 482 Cr.P.C. which deals with the inherent power of the High Court is extracted hereinbelow:-

“482. Saving of inherent power of High Court– Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.â€�

14. The power under Section 397 vis-à-vis Section 482 of Cr.P.C. has been elaborately discussed and explained in the case of Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551. The facts of that case were that the appellant was said to have made certain statements and handed over a press hand-out containing defamatory statements against the then Law Minister of the respondent-State. The State Government decided to prosecute the appellant for offence under Section 500 IPC and accorded necessary sanction. On the Public Prosecutor filing the complaint, the Sessions Judge took cognizance of the offence under Section 199(2) Cr.P.C. The appellant contended that even assuming allegations imputed to him were defamatory, they were not made against the Minister in discharging his public functions, but only in his personal capacity. The Sessions Judge rejected these contentions. On revision, the High Court held that a revision petition was not maintainable under Section 397(2) Cr.P.C. since the order of the Sessions Judge was an interlocutory order. A 3- Judge Bench of this Court discussing the object of the two provisions i.e. Section 397(2) and Section 482 of Cr.P.C. observed as under:-

“10. As pointed out in Amar Nath’s case [(1977) 4 SCC 137] the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding, is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub- section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain

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