Ateeq and Others vs State of U.P. and Another

Raj Mani Chauhan, J.—Heard learned Counsel for the revisionists, learned A.G.A. and learned Counsel for the opposite party No. 2 as well as perused the record.

This criminal revision u/s 397(1)/401 of the Code of Criminal Procedure (hereinafter referred as to "Code") has been directed by the revisionists Ateeq, Naseem and Mujeeb, all sons of Saifuddin, resident of village Aant, Police Station Misrikh, district Sitapur against the order dated 3.9.2009, passed by the learned Additional Sessions Judge/Court No. 7, Sitapur in Sessions Trial No. 536 of 2005 (Case Crime No. 807 of 2000); State v. Munne and Ors. under Sections 147, 148, 149, 302, 323, 504, I.P.C., police station Kotwali, district Sitapur whereby the learned Additional Sessions Judge has allowed the application No. 109 kha filed by the prosecution u/s 319 of the Code and summoned the accused-revisionists to face trial in sessions trial as mentioned above.

The relevant facts giving rise to the present revision may be summarized as under:

The complainant Nishat Mirza son of Sayeed Mirja, resident of village Aant, Police Station Misrikh, district Sitapur on 23.5.2000 at 13.58 hours lodged a written report at police station Kotwali, district Sitapur with the allegation that he alongwith his brother Irfan Mirza, Banwari son of Kirti Pasi and Ram Pal son of Hazari Pasi of his village on 23.5.2000 had come to the District Court, Sitapur and they after attending the court of Chief Judicial Magistrate, Sitapur were returning back. As they got down from the northern gate of Sessions Court and hardly proceeded to four steps ahead, the accused Manua son of Lallu Ram armed with ''banka'' (meant for cleaning the sugarcane), Sat Prakash son of Lallu Ram armed with ''danda'', Munne son of Lallu Ram armed with hockey and Nanhey Pandit armed with ''danda'', all resident of village Pantauja, Police Station Misrikh, district Sitapur, Ateeq, Naseem and Mujeeb all sons of Saifuddin, resident of village Aant, Police Station Misrikh, district Sitapur armed with ''danda'' and ''baint'' came from behind. Accused Ateeq and Naseem exhorted the other accused saying to catch hold his brother Irfan Mirza and cause his death (pakad lo aur jan se mar dalo). All the accused including Ateeq and Naseem caught hold Irfan Mirza. The accused Manua started to give him ''banka'' blows. He as well as other raised alarm which attracted a large crowd. They challenged the accused and caught hold the accused Manua with ''banka''. The police personnel present there in the Court premises too cooperated them. The rest accused gave lathi blows to him as well. However, he alongwith others chased them but they successfully escaped away. He just after the occurrence took his injured brother to the District Hospital, Sitapur where he was declared dead by the doctor.

On the written report of the complainant, the police of Police Station Kotwali, district Sitapur registered a case under Sections 147, 148, 149, 302, 323 and 504, I.P.C. against seven named accused for investigation. The autopsy examination on the deceased was conducted by the Dr. Harsh Sharma, the then Medical Officer Incharge II Battalian P.A.C., Sitapur on 24.5.2000. As per opinion of the doctor, the death of the deceased was due to coma as a result of ante-mortem injuries.

The Investigating Officer during the course of investigation did not find the involvement of the accused Ateeq, Naseem and Mujeeb (revisionists) in the alleged occurrence. Therefore, he concluded the investigation with filing of charge-sheet only against four accused, namely, Manua, Sat Prakash, Munne and Nanhey Pandit. The learned Chief Judicial Magistrate, Sitapur took the cognizance of the offence on the basis of the police report (charge-sheet) submitted by the Investigating Officer u/s 173 of the Code and thereafter committed the case to the Court of Sessions for trial which gave rise to the Sessions Trial No. 536 of 2005, State v. Munne and Ors. The Sessions Trial was transferred by the Sessions Judge, Sitapur to the Court of learned Additional Sessions Judge/ F.T.C.-5, Sitapur for trial. Thereafter, accused were charged by the learned Additional Sessions Judge under Sections 302/34, 323/34 and 504, I.P.C. The prosecution examined the complainant Nishat Mirza as P.W. 1 in support of the charges levelled against the accused who supported the prosecution case involving all the seven accused, i.e., including the revisionists in the alleged occurrence. The complainant after his examination in-chief moved an application u/s 319 of the Code to summon the accused-revisionists who were excluded by the Investigating Officer from being charge-sheeted. The application was opposed by the accused. The learned Additional Sessions Judge after hearing the learned Counsel for the parties at length came to the conclusion that the complainant had not been cross-examined till then and more over other evidence was to be required to find out the involvement of the accused in the alleged occurrence. Therefore, the application moved by the complainant was premature and the same was rejected at that stage, vide order dated 6.5.2008.

The complainant challenged the order dated 6.5.2008, passed by the learned Additional Session Judge by filing Criminal Revision No. 2 of 2008 before the Allahabad High Court, Lucknow Bench, Lucknow. In the meantime, the complainant Nishat Mirza P.W. 1 was cross-examined by the accused and thereafter the prosecution examined one more witness, namely, Ram Pal P.W. 2 who too was cross-examined by the accused. The prosecution after cross-examining the complainant as P.W. 1 and Ram Pal as P.W. 2 closed its evidence on fact.

The complainant Nishat Mirza thereafter moved an application before this Court for withdrawal of the revision filed by him challenging the order dated 6.5.2008, passed by the learned Additional Sessions Judge as referred above. The application was allowed by this Court and the revision was dismissed as withdrawn on 28.5.2009. The trial fixed on 14.7.2009 for remaining prosecution evidence. On that date, learned A.D.G.C. (Criminal) who was conducting the prosecution, moved an application No. 109kha u/s 319 of the Code for summoning the accused Ateeq, Naseem and Mujeeb with the allegation that accused Ateeq, Naseem and Mujeeb were named by the complainant as an accused in the F.I.R. but the Investigating Officer did not file charge-sheet against them. The prosecution examined the complainant Nishat Mirza as P.W. 1 and Ram Pal as P.W. 2 who were cross-examined by the accused. No any other witness of fact has to be examined by him. As per statements of the complainant (P.W. 1) and Ram Pal (P.W. 2), the involvement of the accused Ateeq, Naseem and Mujeeb in the alleged occurrence has been fully established. These witnesses in their statements recorded by the Investigating Officer u/s 161 of the Code too has named all the three accused. There is sufficient evidence on record to show their involvement in the alleged occurrence. Therefore, they are liable to be summoned u/s 319 of the Code.

The complainant Nishat Mirza (P.W. 1) too moved an application No. 111kha u/s 319 of the Code to summon accused Ateeq, Naseem and Mujeeb as accused on the same ground as mentioned in the application of learned A.D.G.C. (Criminal). The accused filed objection against the applications filed by the learned A.D.G.C. (Criminal) and the complainant Nishat Mirza.

The learned Additional Session Judge after hearing the learned A.D.G.C. (Criminal), the learned defence Counsel at length and going through the case laws cited by either side, found that the accused Ateeq, Naseem and Mujeeb were named by the complainant in the F.I.R. The Investigating Officer did not file charge-sheet against them. The complainant Nishat Mirza (P.W. 1) and Ram Pal (P.W. 2) have stated that these accused too were involved alongwith other accused in the alleged occurrence. These witnesses were cross-examined at length but there was nothing in their cross-examination to show that these accused were not involved in the alleged occurrence. Consequently, the learned Additional Sessions Judge found it proper to summon them u/s 319 of the Code and he by impugned order allowed the application No. 109kha moved by the learned A.D.G.C. (Criminal) and summoned the accused Ateeq, Naseem and Mujeeb which has given rise to the present criminal revision.

The learned Counsel for the accused-revisionist No. 3 argued that no role of accused-revisionist No. 3 has been assigned either by the complainant (P.W. 1) or Ram Pal (P.W. 2) in their statements. The participation of the accused-revisionist No. 3 has not been established by the prosecution. Therefore, the impugned order as against the accused-revisionist No. 3 is illegal and is liable to be set aside.

The learned Counsel for the accused-revisionist Nos. 1 and 2 contends that sometimes two months back prior to the date of alleged occurrence, the brother of accused Manua was done to death in which deceased Irfan Mirza was an accused. On the date of occurrence, the case was pending in the Court against him. It was accused Manua only which could have motive to eliminate the brother of the complainant to take revenge. The accused-revisionists had no motive at all to cause death of the deceased. There is no evidence on record to show that the accused-revisionists were in any way associated with the co-accused Manua. Although the accused-revisionists were named by the complainant in the F.I.R. but the Investigating Officer did not find their involvement in the alleged occurrence. From a perusal of copy of the post-mortem examination report of the deceased, it appears that four ante-mortem injuries were found by the doctor on his person. Injuries No. 1 and 2 were incised wound, injury No. 3 was abraded contusion and injury No. 4 was linear abrasion. The accused were said to be armed with ''danda'' and ''baint''. Had been the accused involved in the alleged occurrence, the deceased would have sustained more lathi injuries than two. Two injuries, i.e., one abraded contusion and one linear abrasion found on the person of the deceased, can be said to have caused by lathi while the accused who were armed with lathi were six in number. Therefore, the Investigating Officer had rightly found that the accused-revisionists were not involved in the alleged occurrence.

The learned Counsel further contends that the law on the point to summon a person as an accused u/s 319 of the Code is well-settled by the several decisions of Hon''ble Apex Court. The law on the point to summon the accused u/s 319 of the Code as on the date is that the power of the trial Court to summon an accused u/s 319 of the Code is extra-ordinary discretionary power which should be exercised very sparingly and only where the compelling reasons exist. Such power cannot be exercised in a routine manner. The trial Court while exercising the jurisdiction u/s 319 of the Code will have to assess the evidence adduced by the prosecution and if it is satisfied that there is likelihood of conviction of the accused to be summoned then the trial Court can summon the accused.

The learned Counsel for the accused-revisionists further argued that the satisfaction of the trial Court that the accused may likely be convicted on the basis of evidence adduced by the prosecution is basic criteria to summon the accused u/s 319 of the Code to face trial. In this case, from a perusal of the impugned order passed by the learned Additional Sessions Judge, it appears that he had not recorded his satisfaction as to whether on the basis of evidence adduced by the prosecution, the accused are likely to be convicted. The learned Additional Sessions Judge has only held this much that the complainant has named the accused in the F.I.R. He in his statement given before the Court has involved the accused-revisionist in the alleged occurrence. Ram Pal (P.W. 2) has also stated that the accused-revisionists too were involved in the alleged occurrence but learned Additional Sessions Judge has not recorded his satisfaction whether their evidence was of such nature that the accused-revisionists were likely to be held guilty. Since the learned Additional Sessions Judge has passed the impugned order without recording his satisfaction that on the basis of evidence adduced by the prosecution, the accused-revisionists would be held guilty. Therefore, the impugned order is illegal and is liable to be set aside. Learned Counsel for the accused-revisionists in support of his arguments has placed reliance on cases Michael Machado and Another Vs. Central Bureau of Investigation and Another, Mohd. Shafi v. Mohd. Rafiq and Anr. (2007) 14 SCC 544 : 2007 (2) ACR 2268 (SC) ; Lal Suraj @ Suraj Singh and Another Vs. State of Jharkhand, and c(SC), decided by the Hon''ble Apex Court.

Learned A.G.A. supported the impugned order passed by the learned Additional Sessions Judge.

The learned Counsel for the opposite party No. 2 (complainant) argued that although in case Mohd. Shafi (supra), the Hon''ble Apex Court has held that the trial Court may in its extra-ordinary power u/s 319 of the Code, summon any person as an accused if it is satisfied that the evidence adduced by the prosecution is of such nature that there is all likelihood of the conviction of the accused but the Hon''ble Apex Court in cases Ram Pal Singh and Ors. v. State of U.P. and Anr. and Bholu Ram v. State of Punjab and Anr. (2008) 3 SCC 710, has held that the power to summon the accused u/s 319 of the Code is discretionary power of the Court. The Court can exercise its discretionary power to summon an accused if his complicity in commission of the offence under charge is established. In this case although the trial Court has not specifically recorded its satisfaction that on the basis of evidence led by the prosecution, there is strong likelihood of the conviction of the accused but trial Court has specifically found that the complainant Nishat Mirza in the F.I.R. had named the accused-revisionists Ateeq, Naseem and Mujeeb alongwith other accused who were involved in the alleged occurrence. The Investigating Officer did not find their involvement in the occurrence. The Investigating Officer has submitted charge-sheet only against four named accused. The prosecution at trial examined the complainant as P.W. 1 who in his examination-in-chief has named all the seven person as accused including the revisionists. The complainant before his cross-examination moved an application u/s 319 of the Code to summon the accused-revisionists. The trial Court found that the statement of the complainant given in the examination-in-chief was not sufficient to summon the accused-revisionists u/s 319 of the Code; rather more evidence was required. Consequently, the learned trial Court rejected the application of the complainant at that stage. The complainant was thereafter cross-examined by the accused at length. The prosecution further examined Ram Pal as P.W. 2 who was eye-witness of the occurrence. Ram Pal (P.W. 2) too has involved the accused-revisionists alongwith other accused in the alleged occurrence. Ram Pal (P.W. 2) too had been cross-examined by the accused at length. The trial Court on the basis of evidence on record found that the accused-revisionists were said to be armed with ''lathi'' and ''baint''. The deceased Irfan Mirza had sustained two injuries like abraded contusion and linear abrasion which could be caused by ''lathi''. The complainant Nishat Mirza too had sustained lathi injuries. Therefore, trial Court found that the accused-revisionists were involved in the alleged occurrence. Moreover, the trial Court also found that these witnesses had also stated that all the accused caught hold the deceased and co-accused Manua had given ''banka'' blows to him. The occurrence had taken place in the broad day light in the district Court premises, Sitapur. The complainant and deceased had sustained lathi injuries. Therefore, trial Court on the basis of evidence has found the involvement of the accused-revisionists in the alleged occurrence. The Court in its exercise of power u/s 319 of Code has summoned them by the impugned order, which does not suffer from any illegality.

Section 319 of the Code empowers the trial Court to summon an accused who had not been charge-sheeted by the Investigating Officer, which is being extracted herebelow:

Power to proceed against other persons appearing to be guilty of offence.�(1) Where, in the course of any inquiry into, or trial or, 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 afresh, and the witnesses reheard;

(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.

The Hon''ble Apex Court in case of Michael Machado (supra) has laid down the guidelines as to when the Court should invoke its power u/s 319 of the Code to summon a person as an accused to face trial. The relevant observation of the Court finds place in para 11 of the judgment which is being extracted herebelow:

The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried alongwith the already arraigned accused.

The Hon''ble Apex Court in a subsequent judgment in case of Mohd. Shafi (supra) has laid down the guidelines as to when the trial Court can invoke its power to summon a person as an accused u/s 319 of the Code who had not been charge-sheeted by the Investigating Officer. The Hon''ble Court has held that the trial Court while invoking its power u/s 319 of the Code must arrive at the satisfaction that there exists a possibility that accused so summoned is in all likelihood would be convicted on the basis of evidence adduced by the prosecution. The relevant observation of Hon''ble Court finds place in para 12 of the judgment, which is being extracted herebelow:

From the decisions of this Court, as noticed above, it is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed.

In case Lal Suraj alias Suraj Singh (supra), the Hon''ble Apex Court has held that the power conferred on the trial Court u/s 319 of the Code to summon a person as an accused has to be exercised on the basis of fresh evidence brought before the Court and other power should be exercised in a rare case and on cogent ground. The power can be exercised on the basis of evidence adduced by the prosecution, if there is possibility of recording the judgment of conviction against the person to be summoned. The relevant observation of the Hon''ble Court finds place in para 11 of the judgment, which is being extracted herebelow:

Section 319 of the Code is a special provision. It seeks to meet an extraordinary situation. It although confers a power of wide amplitude but is required to be exercised very sparingly. Before an order summoning an accused is passed, the trial Court must form an opinion on the basis of the evidence brought before it that a case has been made out that such person could be tried together with the other accused. There is no dispute with the legal proposition that even if a person had not been charge-sheeted, he may come within the purview of the description of such a person as contained in Section 319 of the Code.

The same principle of law has been laid down by the Hon''ble Apex Court in case of Sarabjit Singh and Anr. (supra).

In case of Ram Pal and Ors. (supra), the Hon�ble Apex Court has held that the power u/s 319 of the Code can be exercised by the trial court, if it is satisfied from the evidence that complicity of a person against whom no charge had been framed is established, he can be summoned by the Court to face trial. The relevant observation of the Court finds place in para 16 of the judgment, which is being extracted herebelow:

All that is required by the Court for invoking its powers u/s 319, Code of Criminal Procedure 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.

In case of Bholu Ram (supra), the Hon''ble Apex Court has held that the trial Court in its power u/s 319 of the Code can summon a person as an accused, if the evidence adduced against him is sufficient to show his complicity in the occurrence. The relevant observation of Hon''ble Court is being extracted herebelow:

Section 319, Code of Criminal Procedure empowers a Court to proceed against any person not shown to be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused. Sometimes a Magistrate while hearing a case against one or more accused finds from the evidence that some person other than the accused before him is also involved in that very offence. It is only proper that a Magistrate should have power to summon by joining such person as an accused in the case.

I have given thoughtful consideration to the submissions of the learned Counsel for the parties as well as gone through the case laws cited above.

After going through the case laws referred above, the Court finds that the Hon''ble Apex Court has laid down the following criteria for the trial Court to invoke its jurisdiction u/s 319 of the Code to summon a person as an accused to face trial alongwith other accused.

(1) The power of the trial Court u/s 319 of the Code to summon any person as an accused is an extraordinary power which should be exercised very sparingly and only where the compelling reason exist for taking cognizance against him. This power should not be exercised as a matter of routine.

(2) The trial Court while invoking power u/s 319 of the Code must be satisfied on the evidence adduced by the prosecution that the complicity of the accused in commission of the alleged crime has been established.

(3) The evidence adduced by the prosecution against the person to be summoned should be of such nature which would reasonably lead conviction of the person sought to be summoned. Unless the above criteria is fulfilled, the summoning order of the trial Court will be vitiated.

In this case, from a perusal of the impugned order, it appears that after the complainant Nishat Mirza (P.W. 1) was examined by the prosecution, he, before he was cross-examined by the accused, moved an application u/s 319 of the Code to summon the accused-revisionists as he had named them alongwith other four accused in his examination-in-chief, who had committed offence. The application was rejected by the trial Court on the ground that it was not proper to summon the accused only on the basis of the statement of the complainant in his examination-in-chief. Some more evidence was required to consider the involvement of the accused in the alleged occurrence. The trial Court has also found that the complainant had named all the seven accused in the F.I.R. The complainant Nishat Mirza (P.W. 1) and Ram Pal (P.W. 2) in their statements before the Court had stated that all the seven accused were involved in the alleged occurrence. The trial Court has also found that there was nothing in the cross-examination of both the witnesses (P.W. 1) and (P.W. 2) to show that the accused were not involved in the alleged occurrence. As per statement of the complainant (P.W. 1) and Ram Pal (P.W. 2), accused Manua had given ''banka'' blow to the deceased and the rest of the accused had given lathi blows. The deceased had sustained two lathi injuries. The complainant too had sustained lathi injuries but the trial Court has not specifically observed that on the evidence led by the prosecution, it was satisfied that the involvement of the accused to be summoned had been established by the prosecution and the evidence adduced by the prosecution against them was of such nature which could lead to the conviction of the accused. The impugned order in the opinion of the Court lacks basic requirement of Section 319 of the Code. Therefore, impugned order is illegal and is liable to be set aside. The matter requires to be remanded back to the trial Court with the direction to dispose of the application No. 109kha filed by the learned A.D.G.C. (Criminal) and the application No. 111kha filed by the complainant afresh after giving opportunity of hearing to the parties, in light of the observation made in the body of the judgment. The criminal revision, therefore, deserves to succeed.

The criminal revision is, therefore, allowed and the impugned order dated 3.9.2009, passed by the learned Additional Sessions Judge/Court No. 7, Sitapur in S.T. No. 536 of 2005, (Crime No. 807 of 2000), State v. Munne and Ors., under Sections 147, 148, 149, 302, 323 and 504, I.P.C., police station Kotwali, district Sitapur is set aside and the matter is remanded back to the trial Court with the direction to dispose of the application No. 109kha filed by the learned A.D.G.C. (Criminal) and the application No. 111kha filed by the complainant afresh after giving opportunity of hearing to the parties, in light of the observation made above.