Ram Pal Singh & Ors. v. State of U.P. & Anr.

Judgment

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 297 of 2009 From the final Judgement and Order dated 5.10.2007 of th@ High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Revision No. 549 of 2007 I RAM PAL SINGH & ORS. V STATE OF U.P. & ANR. 293 V.J. Francis, Arun K. Singh, Anupam Mishra and Sushi! Balwada, for the Appellant. Pramod Swarup, S.A.A. Abadi, Vandana Mishra, G. Venkateswara and Satpal Singh, for the Respondent. The Judgement of the Court was delivered by ALTAMAS KABIR, J.,

1Leave granted.

2In respect of an incident which took place on 1st October, 2006, in the day time at about 1.00 p.m., Kamlesh Singh c (PW.1) lodged a complaint before the Station House Officer, Police Station Sitapur, U.P., alleging that while his younger brother, Brijesh Kumar Singh alias Bablu Singh along with his brother-in-law Manvender Singh, was going on foot towards Mani Chauraha through Gupta Colony at Sitapur, U.P., the accused persons, in a planned manner with common intention, attacked the deceased and Manvender Singh. On account of such assault, Brijesh Kumar Singh died on the spot and Manvender Singh also sustained injuries. On completion of investigation, the Investigating Officer filed a challan against the accused persons on 22nd October, 2006, under Section 307, 302 read with Section 120-B IPC and the matter was, thereatr ter, committed to the Sessions Court for trial.

3On 19th June, 2007, the deposition of K~mlesh Singh (PW.1) was recorded by the learned Sessions Judge, Sitapur. The said witness reiterated the statements which had been made by him in the First Information Report. It also appears that on the same day, Kamlesh Singh filed an application under Section 319 Cr.P.C. before the learned Sessions Judge, Sitapur, for summoning the appellants herein to face trial in respect of G the said incident. The said application wa~ dismissed by the learned Additional Sessions Judge on 5th July, 2007, and against such order of dismissal, Kamlesh Singh filed Criminal Revision No.413 of 2007, which was disposed of by the High Court on 29th August, 2007, by setting aside the impugned order and A directing the trial Court to pass a fresh order in the light of the observations made in the order of the High Court.

4In compliance with the said order, the learned Additional Sessions Judge re-heard the application filed under Section 319 Cr.P.C. and by his order dated 15th September, 2007, the learned Additional Sessions Judge, once again, dismissed the application filed by the respondent No.2 for summoning the appellants herein under Section 319 Cr.P.C.

5The dismissal of the application was followed by a second criminal revision petition filed by the respondent No.2 on 5th October, 2007, being No.549 of 2007 and after hearing the parties, the High Court came to the conclusion that the fresh order passed by the learned Additional Sessions Judge on 15th September, 2007, was in direct defiance of the order passed by the High Court earlier on 29th August, 2007. In that view of the matter, the High Court not only sought for an explanation w from the learned trial Judge for not complying with the aforesaid order of the High Court, but after quashing the impugned order dated 15 1h September, 2007, directed the trial Court to issue summons against Ram Pal Singh, Deepak Singh, Ajai r Kumar Singh and Anil Kumar Singh for their appearance· as accused in Sessions Trial No.1163 of 2006 under Section 302, 307 and 120-B IPC.

6It is the said order of the High Court which has been --4 . ~ .. impugned in the instant appeal by the persons summoned under Section 319 Cr.P.C.

7Mr. V.J. Francis, learned advocate, appearing for the appellants, submitted that although the appellants had not been named by any of the other witnesses, only on the statement of Kamlesh Singh (PW.1 ), they had been summoned under Section 319 Cr.P.C. as accused in the sessions trial. Mr. Francis 1 also submitted that the very presence of Kamlesh Singh (PW.1) at the time of the incident was highly doubtful as he had not named some of the other persons named by other eye-witnesses who were said to have been present at the time of the RAM PAL SINGH & ORS. V. STATE OF U.P. & ANR. 295 [ALTAMAS KABIR, J.] i incident. He also urged that none of the eye-witnesses to the incident had named the appellants in their statements made under Section 161 Cr.P.C. Mr. Francis submitted that the High Court did not also consider the fact that Manvender Singh, who had been accompanying the deceased at the time of the incident and had also sustained injury in the alleged assault, did not name any of the appellants as having participated in the incident. Mr. Francis submitted that the order of the High Court summoning the appellants under Section 319 Cr.P.C. on the sole evidence of PW.1 whose presence at the time of incident was highly doubtful, was erroneous and was liable to be set c aside.

8In support of his submissions, Mr. Francis referred to and relied on a recent decision of this Court in the case of Mohd. Shafi vs. Mohd. Rafiq (2007 (5) SCALE 611 ), wherein in a similar situation, the order of the High Court directing issuance of D summons was set aside on the ground that before the trial Court decided to take recourse to the provisions of Section 319 Cr.P.C., it would have to be satisfied that the requisite conditions for taking such action actually existed. Commission of an offence by a person not facing trial must, therefore, appear to the Court concerned to be a certainty. It cannot be based on an ipse dixit on the part of the Court and the discretion in this regard had to be judicially exercised.

This Court, while setting aside the order of the High Court, inter alia, observed that before the_Court·exercises its discretionary jurisdiction in terms of .Section_319 ~Cf:P.C., it must arrive at a satisfaction that there exists a-possibility that the accused, so summoned, is in all likelihood liable to be convicted. ::9.: Mr. Francis submitted that while passing the impugned ~order, the High Court did not consider the fact that the application made under Section 319 Cr.P.C. filed for summoning the ·appellants had been rejected on the ground that the injured witness·Manvendra Singh had not indicated their complicity with the incident in his statement under Section 161 Cr.P.C. On the other hand, the High Court came to the conclusion that it was obligatory on the part of the learned Trial Judge to have summoned the appellants to face trial and has failed to do so against the existing canons of law. Mr. Francis submitted that although th.e High Court had intended the Trial Court to pass a fresh order along the lines suggested by it in its order dated 29th Au- · gust, 2007, the Trial Court had in defiance of the said order, recklessly passed the order dated 15 September, 2007, which was no different from its earlier order refusing to summon the appel.lants under Section 319 Cr.P.C.

10Mr. Francis submitted that the hard stand taken by the High Court would. be evident from its order seeking an explanation from the· Trial Judge for not complying with the intent of the Court, as clearly indicated in the order of 29th August, 2007. Apart from quashing the second order passed by the Trial Judge on 15 1h September, 2007, the High Court directed the Trial Court to issue summons against the appellants herein for their _ap-. pearance as accused in ST No.1163/2006 under Sections 302, 307 and 120-B l.P.C.

11Mr. Francis submitted that while interpreting its own order, the High Court made it clear that while passing a fresh order, the same was to be in lin~ with the observationsmade·by the High Court. Mr. Francis submitted that.this approach~of the High Court was completely erroneous,since the discretion to decide afresh had to: be left to the trial Court. 1·2. Opposing Mr. Francis's submissions, Mr. Pramod Swarup, learned Counsel appearing on behalf of the respondents, urged that in order to invoke the provisions of Section 319 Cr.P.C., all that was required to be seen was whether the persons to be summoned were in some way implicated in the incident for. which the trial was being conducted, and, if so, whether such accused had been named by any of the witnesses for the prosecution. ·it is also required to be seen that the evidence was of such nature that by relying upon the same, there was a strong possibility of the persons being added as accused of being ultimately convicted. 1 _, I ' ...,. I RAM PAL SINGH & ORS . .V. STATE OF U.P. & ANR. 297 [ALTAMAS KABIR, J.]

13Mr. Swarup contended that in this case the appellants had been directly named not only in the F.1.R. but·also by the complainant, Kamlesh Singh, who claimed to be an eye-witness of the murder of his brother committed in broad:day-light. Mr. Swarup submitted that nothing further was required to be done to satisfy the Court for issuing summons to the named s persons under Section 319 Cr.P.C., whose complicity had been shown from the evidence adduced during the trial. He submitted that.only after being satisfied that the appellants had a positive role to play in the incident, summons under Section 319 Cr.P.C. were issued to the appellants. He urged that the order C of the High Court did not warrant any interference and the appeal was liable to be dismissed.

14We have carefully considered the submissions made on behalf of the respective parties and the provisions of Section 319 Cr.P.C. anct have arrived at the conclusion that no interference is called for with the order passed by the High Court.

15The ingredients of Section 319 are unambiguous and indicate that where in the course of 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 he has committed.

16All that is required by the Court for invoking its powers under Section 319 Cr.P.C.is to be satisfied that from the evidence adduced before it, a person against whom no charge had, been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.

17In the instant case, although, the appellants were named in the F.l.R., they were not named as accused in the charge,. sheet during the trial. However, P. W.1 in his evidence, has named the appellants as persons who were involved in the incident causing 'the death of Brijesh Kumar Singh and injuries to :SUPREME:COVRT~EP.ORTS {2009]2'.S.C:R. :A 'Manve-nder~Sir}Qh. :oespite~the :above, -the trjal .Court, ~on. two ::separate:occasions,· rejected:the:prayermade:by the:Hespon- :de·nrNo2'for£summonir19:the:appe1Jants ·herein.under:-Section :319~Cr~."C.J-he--Hjgh:Court,:after:consideril}g.the:evidence:6f =pw:1,"'Kamlesh$il}gh,:tho'-:Jght it·necessary·for.the~appellants _;g ·to:be:summoned. ~18.-Although,:certain:other.·observations made.by the·Hjgh .Court-r~gardiQgthe:orders~passed:by the"Trial.Court.could:and ~should·have:been:avoided,. we.·are.also:of the view that the·Hjgh .Court ·had·not:committed~any~error in.directiQg. that the.appel- .C · Jants:be:summoned:to~stand:tr!al:aloog with the;co-accused, in ·. view~of.the::ev.idence=ofP. W.1.:duril]g. the. trial itself. 19.·We,·. therefore,:dismiss'.the~appeaLand.uphold: the;dirrection;given:by:the-Hjgh:Court·for£summonil]g: the appellants l under:Section':31"9:Cr:P.:c. ~N.J. ·Appeal.:dismissed.