HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 21.01.2020
Delivered on 20.02.2020
Court No. – 4
Case :- U/S 482/378/407 No. – 3665 of 2010
Applicant :- Rajendra Nath Bajpai
Opposite Party :- State of U.P. Another
Counsel for Applicant :- Kapil Misra
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Sudhir Agarwal,J.
1. Sri Jyotindra Misra, Senior Advocate, assisted by Sri Kapil Misra, Advocate has appeared for applicant and learned A.G.A. for State of U.P. Opposite party 2 was issued notice and as per report dated 29.11.2010 submitted by Chief Judicial Magistrate, Bareilly, notice has been served upon opposite party 2 but he has not chosen to appear either in person or through counsel. In fact opposite party 2 is an officer of Police Department, hence learned A.G.A. stated that he represent both opposite parties. In the circumstances, I have heard the matter finally and this application is being decided by this judgment.
2. This is an application filed under Section 482 Cr.P.C. with the prayer to quash order dated 03.9.2004 passed by Sri Shamshad Ali, Additional Sessions Judge/F.T.C. No.2, Lakhimpur Khiri in Sessions Trial No.610 of 2001 arising from Case Crime No.135 of 1998 summoning applicant under Section 319 Cr.P.C., for trial in offence under Section 271, 201 IPC.
3. Facts giving rise to this application are that a First Information Report (hereinafter referred to as “FIR”) being Case Crime No.135 of 1998 dated 14.01.1997 was registered at Police Station Kotwali, Lakhimpur Khiri, under Sections 218, 201, 217 IPC on the information given by Surendra Singh Dongari, Inspector Mahila Sahayata Prakoshth, Apraadh Anusandhan Vibhag, Zonal Office, Bareilly alleging that investigation in Case Crime No.35/97 under Section 498A, 304B IPC read with 3/4 Dowry Prohibition Act was conducted by Informant against accused Anil Kumar son of Hari Nandan Prasad, Hari Nandan Prasad son of Jhamman Lal, Mahendra Pratap son of Rajendra Prasad and Rajendra Prasad son of Jhamman Lal resident of Village Sakethu, Police Station Neemgaon, District Lakhimpur Khiri. Informant Investigting Officer found that Sunita alias Anita Devi daughter of Jayendra Singh, who was Complainant/Informant of FIR, registered as Case Crime No.35 of 1997 was admitted in Government Hospital, Sadar, Lakhimpur Khiri on 14.01.1997 for treatment of burn injuries. Dr. A.V.Singh of the Hospital sent a written memo through Ward Boy Shri Ram for recording statement of Smt. Sunita Devi, victim, which was entered by Constable No.33 Manmohan Dayal in G.D. No.5 dated 14.01.1997 at 1:15 A.M. As per opinion of Dr. A.V.Singh, victim was burnt at the level of Grade 1-C and Grade-III and at that time she was whispering something. Head Constable Manmohan Dayal informed the then Additional Tehsildar Sri Chhote Lal for recording her statement through Home Guard Shiv Kumar at 2:15 A.M., but, Chhotey Lal, Additional Tehsildar reached hospital with delay of almost 10 hours i.e. at 11.30 A.M. and at that time, Dr. S.M.Malik was on duty. The aforesaid Additional Tehsildar recorded statement of victim without having medical certificate of condition of victim from aforesaid doctor and also did not record statement as spoken by her i.e. Smt. Sunita Devi (the victim) with an intention to help accused persons and recorded wrong dying declaration. FIR, therefore, was lodged against Sri Chhotey Lal, Tehsildar for committing offence under Sections 218, 201, 217 IPC. After investigation, charge sheet was submitted, against Chhotey Lal who, by that time, had retired, vide charge sheet no.135/98 under Sections 217, 218, 201 IPC and criminal case was registered as Sessions Trial No.610 of 2001.
4. In respect of Case Crime No.35 of 1997 also charge sheet was submitted against Anil Kumar and others under Section 304-B IPC and criminal case was registered as Sessions Trial No. 349 of 1998. At the relevant time Chhotey Lal was Additional Tehsildar, Lakhimpur Khiri and D.N.Bajpai was Tehsildar Sadar, Lakhimpur Khiri.
5. Trial Court found that information sent by Head Constable Manmohan Dayal Verma at 1.15 A.M. on 14.01.1997 was forwarded to Tehsildar Sadar, Lakhimpur Khiri, which was served upon him through Home Guard Shiv Kumar. After communicating information, his (Shiv Kumar) return was registered in Report No.5 at 2.15 a.m. on 14.01.1997. These documents were before Trial Court. Thus, information for recording dying declaration was received by the then Tehsildar Sadar, Lakhimpur Khiri between 1.15 to 2.15 A.M. on 14.01.1997 and at that time Sri D.N.Bajpai was Tehsildar Sadar, Lakhimpur Khiri. In these circumstances, Trial Court found that partisan stand was taken by authorities to help D.N.Bajpai and to implicate Chhotey Lal, Additional Tehsildar. Since Chhotey Lal also could not have escaped from culpability for the reason that he, when informed, was also responsible to reach hospital for recording statement at the earliest but he also delayed the matter and recorded a wrong statement. In the circumstances, Trial Court, on the basis of evidence on record, found D.N.Bajpai, the then Tehsildar Sadar, Lakhimpur Khiri and Dr. S.K.Malik also guilty of offence under Section 217 and 201 IPC hence summoned both of them vide impugned order dated 03.09.2004.
6. Learned counsel for applicant contended that when Investigating Officer found only Chhotey Lal, Additional Tehsildar guilty for offence under Sections 217, 218, 201 IPC, summoning of applicant for the offence under Section 217, 201 IPC is illegal and founded on no evidence whatsoever.
7. Learned counsel for parties, however, could not dispute that the question, whether during trial if Trial Court found any material, can summoned a person not named in charge sheet in exercise of power under Section 319 Cr.P.C., has been subject matter of consideration before a Constitution Bench in Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92, in which Court examined following five questions:
“(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(ii) Whether the word “evidence” used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word “evidence” used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?”
8. The aforesaid questions have been answered in para 117 of judgment as under:
“Question Nos. (i) and (iii)
A. In Dharam Pal and Ors. v. State of Haryana and Anr. 2004 (13) SCC 9, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till ‘evidence’ under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
In view of the above position the word ‘evidence’ in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No. (ii)
A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. (iv)
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No. (v)
A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.”
9. The aforesaid judgment in fact lays down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge-sheet is filed by Police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C, Court has said that test are not only same as applicable for framing charge, but a little more in degree.
10. The above view was followed in Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC 706 holding:
” … since it is a discretionary power given to the court Under Section 319 Code of Criminal Procedure and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.” (Emphasis added)
11. Recently in Shiv Prakash Mishra Vs. State of Uttar Pradesh and others (2019) 7 SCC 806, Court relying on the above authorities as also Kailash Vs. State of Rajasthan and another (2008) 14 SCC 51 held as under:
“The standard of proof employed for summoning a person as an Accused person under Section 319 Code of Criminal Procedure is higher than the standard of proof employed for framing a charge against the Accused person. The power Under Section 319 Code of Criminal Procedure should be exercised sparingly. As held in Kailash Vs. State of Rajasthan and another (2008) 14 SCC 51, “the power of summoning an additional Accused Under Section 319 Code of Criminal Procedure should be exercised sparingly. The key words in Section are “it appears from the evidence”.”any person”.”has committed any offence”. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion Under Section 319 Code of Criminal Procedure would be used by the court.” (Emphasis added)
12. The exposition of law, discussed above, clearly shows that mere taking of name is not sufficient to exercise power under Section 319 Cr.P.C. but there must be something more i.e. evidence must be such wherefrom on judicious consideration, Court must be satisfied that such person can be tried alongwith accused already facing trial.
13. As I have already discussed, from the material available Trial Court has referred to reliable evidence, the fact that information was actually conveyed to the then Tehsildar Sadar Lakhimpur Khiri i.e. Sri D.N.Bajpai and evidence was sufficient to show that he did not exercise due care to reach hospital immediately and without wasting time that too in a serious matter where a married woman, sustained burn injuries, was admitted in hospital and considering her condition, doctor had already sent memo for recording her statement by Magistrate. Thus, it cannot be said that Trial Court, in the case in hand, has exercised jurisdiction casually or in a cavalier manner and there is no appropriate and reasonable evidence to summon applicant.
14. In view thereof, objection in challenge to summoning order, raised by learned Senior Counsel that there is no evidence whatsoever, has no force and rejected.
15. There is another aspect of the matter. Applicant’s name is Rajendra Nath Bajpai, but, I find from record that it is D.N.Bajpai who was the then Tehsildar, Sadar and has been summoned by means of impugned order dated 03.9.2004 passed by Additional Sessions Judge/Fast Track Court-2, Lakhimpur Khiri. Certified copy of impugned order also mention the name of the then Tehsildar Sadar Lakhimpur Khiri as ‘D.N.Bajpai’. I do not find any order of summoning passed on 03.9.2004 to Rajendra Nath Bajpai, who has filed this application. Therefore, this application, at the instance of Rajendra Nath Bajpai, in my view, even otherwise, is not sustainable.
16. Application is accordingly rejected.
Order Date :- 20.2.2020