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Sanju Thakur vs State Of U.P. And Another on 13 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 82

Case :- CRIMINAL REVISION No. – 3848 of 2015

Revisionist :- Sanju Thakur

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Manoj Kumar Mishra,Raj Kumar Dhama

Counsel for Opposite Party :- G.A.,Paritosh Sukla

Hon’ble Pradeep Kumar Srivastava,J.

1. Heard Shri Raj Kumar Rawat, learned counsel for the applicants, Shri Paritosh Shukla, learned counsel for the opposite party no.2, learned A.G.A. and perused the record.

2. This revision has been filed against the order dated 17.8.2015 passed by learned Additional Sessions Judge/F.T.C., Aligarh, in S.T.No.927 of 2012 (State vs. Raju Singh and others), under sections 498A, 304B I.P.C. and 3/4 D.P. Act, PS. Gandhipark, District Aligarh by which the learned trial court has rejected the application of the applicant-revisionist under section 319 Cr.P.C. for summoning the accused Ram Prakash for trial in the aforesaid case.

3. Learned counsel for the revisionist submitted that an application 39 Kha under section 319 Cr.P.C. was given by the complainant stating that the name of Ram Prakash was mentioned in the First Information Report and PW-1, PW-2 and PW-3 in their statements have stated that the said Ram Prakash was also involved in commission of crime. According to the complainant this fact was brought in the knowledge of said Ram Prakash that the accused persons are demanding rupees five lakh in dowry and requested that he should try to convince them but Sri Ram Prakash said that if they give rupees five lakh, the matter will be over. On the basis of the statements of witnesses, the complainant has requested to summon said Ramprakash as an accused in the said trial under section 319 of the Criminal Procedure Code.

4. After hearing both the sides, the learned trial court applying the law laid down in Hardeep Singh vs State of Punjab, AIR 2014 SC 1400, rejected the said application by the impugned order.

5. Aggrieved by the order, this revision has been filed and the impugned order has been challenged on the ground that the order is illegal and is not based on evidence on record. The learned court has committed error and has wrongly appreciated the evidence without applying judicial mind.

6. Section 319 Cr.P.C. reads as under :-

“319. Power to proceed against other persons appearing to be guilty of offence.-

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub – section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.”

7. In Hardeep Singh (supra), the Constitution Bench has settled the law in respect of Section 319, Criminal Procedure Code. that the standard of proof employed for summoning a person as an accused under Section 319 is higher than the standard of proof employed for framing a charge against an accused. The Supreme Court observed for the purpose of Section 319 as under:

“……..what is, therefore, necessary for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to the conviction of a person sought to be added as the accused in the case.”

Regarding the degree of satisfaction necessary for framing a charge, the Court observed:

“However, there is a series of cases wherein this court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 of the Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused.

The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further”.

The Court concluded as below:

“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……”

8. In Babubhai Bhimabhai Bokhiria vs. State of Gujarat, 2014 (5) SCC 568, the aforesaid view of Hardeep Singh (supra) has been further quoted with approval and the Supreme Court has held as under :-

“Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher.”

9. In Brijendra Singh vs State of Rajasthan, AIR 2017 SC 2839, the supreme court discussed the meaning of ‘evidence’ in section 319, Criminal Procedure Code and expressed the view that the examination-in-chief of prosecution witnesses is to be considered and there is no need to wait for cross-examination. The prima facie opinion and satisfaction with regards to complicity of the person in commission of the offence is not mere probability of involvement. It requires stronger and cogent evidence. In this case, the IO investigated the offence and did not submit charge-sheet for the reason that at the time of incident the appellant was at a distance of 175 km from the place of occurrence. The supreme court set aside the summoning order and observed that no doubt, the trial court can summon the person on the basis of the statement of witnesses given during trial. However, where plethora of evidence was collected by the IO including documentary evidence indicating his plea of alibi to be correct, the trial court is duty bound to consider the evidence so collected by IO while forming opinion and recording satisfaction regarding prima facie case for the purpose of section 319 of the Criminal Procedure Code.

10. The view expressed in Hardeep Singh (supra) has been further reiterated in Labhuji Amaratji Thakor vs State of Gujarat, AIR 2019 SC 734 and has laid down that 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. The Supreme Court set aside the order of the High Court and up held the order of Court below rejecting the application under section 319.

11. In Rakesh vs State of Haryana, AIR 2019 SC 2168, It appears that the facts of the case was quite similar in the case before the Supreme Court as in that case also the name of the persons was not mentioned in the FIR and when the statement under section 161 Cr.P.C. was recorded by the Investigating Officer, the name of these persons did not find mention. The supreme court again considered the ambit of section 319 and laid down as follows:

“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 charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.”

12. In this instant case, from the perusal of the First Information Report, it appears that the complainant side asked Ram Prakash to advise the accused persons not to harass the deceased and went to in-laws side but they did not follow the advice so given by Ram Prakash. Thus from the statement of all the witnesses and the First Information Report it is clear that the role of Ram Prakash was of only mediator in settling the marriage of the deceased. Therefore on the request of the complainant side he further got himself involved to make the accused person in the incident that they should not demand the additional dowry nor harass the deceased. It is no where alleged in the application on the basis of which the First Information Report was lodged that Ram Prakash is a relative of the accused persons. But in the application under section 319, he has been stated to be a relative of accused person. What is the relation and whether he comes in the category of the ‘husband or the relative of the husband’ as occurred in 498-A of the IPC is not clear.

13. In State of Punjab Vs. Gurmit Singh, (2014) 9 SCC 632, it has been held that meaning of the words “any relative of her husband” occurring in Section 304-B IPC meaning of the words “relative of the husband” occurring in Section 498-A IPC are identical and mean such person related by blood, marriage or adoption. A penal statute should be strictly construed. The expression “any relative of her husband” occurring in Section 304-B IPC should be limited to persons related by blood, marriage or adoption. Nowhere it has been stated that Ramprakash is related with accused by blood, marriage or adoption nor there is any evidence that he resides with the accused persons.

14. Learned trial court has found that in the First Information Report itself it has been mentioned that the role of Ram Prakash was of only mediator in the marriage and he was asked to settle the dispute between in-laws and parents of the deceased so that the accused could not harass her for demand of additional dowry. It has further been mentioned in the First Information Report that Ram Prakash tried to convince the in-laws of the deceased but he did not succeed and the accused continued demanding additional dowry. PW-1 who is informant was examined in the case and in his statement he has said that Ram Prakash is relative of the accused persons and on his saying, he tried to convince the accused persons. He also said that if they give rupees five lakh, the matter may come to an end and his daughter may live comfortably. Similar statements have been given by PW-2 and 3 also. Only on the basis of this statement, the application under section 319 Cr.P.C. has been given which is not sufficient to involve Ramprakash in the crime.

15. Moreover, merely saying that Ram Prakash asked to give rupees five lakh to the accused to end the trouble of the deceased, cannot bring him in the category of associate offender nor can make out a case against him. The trial court has taken reference of the judgement of Hon’ble Supreme Court in the case of Hardeep Singh (supra) and has concluded that for summoning a person under section 319 Cr.P.C. It is essentially required that there should be evidence against such person which should be much better in comparison to what is required at the time of framing of the charges and the evidence should be such that the court should be of the view that it will certainly lead to the conviction of such person who is being sought to be summoned under section 319 Cr.P.C.

16. In view of the above discussions, I find that there is no material illegality and infirmity in the impugned order nor there is any jurisdictional error.

17. This revision has got no force and it is accordingly dismissed.

18. The stay order, if any, shall stand vacated.

19. The court below shall take all endeavors in concluding the trial.

Order Date :- 13.8.2019

RK

(Hon’ble Pradeep Kumar Srivastava, J)

 

 

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