Rampal vs Rekha And Others

Ravindra Maithani, J

Present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code) has been filed by the petitioner to quash the order dated 02.08.2011, passed by the learned Additional Chief Judicial Magistrate (Sr. Div.)/Judicial Magistrate, Roorkee in Case No. 1856 of 2011, State Vs. Budh Singh (for short "the Case") under Section 420 I.P.C. as well as the order dated 05.02.2013, passed by the learned District and Sessions Judge, Haridwar in Criminal Revision No. 428 of 2011, Rampal Vs. State of Uttarakhand and others.

Heard learned counsel for the petitioner and perused the record.

The facts necessary to resolve the instant controversy are short and within a very narrow compass. In the instant case, an FIR was lodged on 24.09.2006, under Sections 420, 465, 466, 467, 468, 469, 471, 120-B, 504, 506 & 323 I.P.C., against the respondents and one more person. After investigation, charge sheet under Section 420 I.P.C. has been filed against Budh Singh only. Based on it, the proceedings of the case were instituted. In the case, two witnesses were examined and thereafter, an application under Section 319 of the Code was filed by the petitioner, which was rejected vide order dated 02.08.2011. The order dated 02.08.2011 passed in the case was challenged in revision by the petitioner. The revision was dismissed on 05.02.2013. Hence, the instant petition.

Learned counsel for the petitioner would argue that in the instant case, on 15.05.2006, Budh Singh had agreed to sell the property in favour of the petitioner and this fact was known to all the respondents. On 01.06.2006, Budh Singh executed a sale deed in favour of the petitioner and this fact was also within the knowledge of the respondents. But despite that, it is argued that on 08.06.2006, the respondent no.2 got a sale deed of the same property executed in her favour from Budh Singh, In that deed it was shown as if the stamp been purchased some time in the month of May, 2006 and it was also reflected as if, the sale deed in favour of the respondent no.2 was typed sometime in May, 2006. It is argued that this was done, by the respondents, in order to grab the property, which had already been sold to the petitioner. It is argued that PW1 was the petitioner in the case. He proved the FIR, therefore, FIR becomes evidence and it may be read as a whole and this alongwith the statement of the PW1 Ram Pal and PW2 Sagwa makes out a case against the respondents, who ought to have been summoned under Section 319 of the Code to be tried alongwith existing accused Budh Singh. But, it is argued that the learned court below committed error in not summoning the accused and order is not rectified in the revision, therefore, impugned orders are liable to be set aside and the petition allowed. Learned counsel for the petitioner informs the Court that the case, in which impugned order dated 2.08.2011 was passed is still pending trial.

The FIR in the incident is too detailed, which speaks that the petitioner had an agreement with Budh Singh to purchase the land on 15.05.2006. Though, at the time of arguments, it is stated that it was an oral agreement. According to the FIR, the respondents knew about it. On 01.06.2006, the sale deed was executed and the petitioner got possession of the land-in-dispute. But thereafter, it is stated that on the basis of back dated stamp of 27.05.2006, a sale deed was shown to have been executed in favour of the respondent no.2 on 27.05.2006 and it was, in fact, executed on 08.06.2006. According to the FIR, all the respondents under a conspiracy got the sale deed executed in favour of respondent no.2 and when respondents and Budh Singh were contacted on 20.06.2006 at 7.00 P.M., they abused, kicked and assaulted the petitioner.

Under Section 319 of the Code, a person, not an accused in criminal case may be summoned to be tried alongwith existing accused, if it so appears from the evidence adduced in the case. Section 319 of the Code is reproduced as hereunder:

"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."

It is the satisfaction of the Court concerned, as to whether, a person may be summoned for trial alongwith the existing accused under Section 319 of the Code or not but, the question is, what would be the criteria to reach that satisfaction level.

In the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92, one of the question before the Hon'ble Supreme Court was about the nature of satisfaction required to invoke the provision of Section 319 of the Code. In para 106 of it, the Court observed as hereunder:-

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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."

And its answer is given in Para 117.5., which is as hereunder:-

Question (iv)- What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign as accused? Whether the power under Section 319 (1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

Answer

117.5. Though under Section 319 (4)(b) CrPC 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 CrPC 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."

It is evident from this case law that there is a difference of degree of satisfaction for summoning the original accused and a subsequent accused and 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.

In the case, petitioner has been examined as PW1. He has not stated about any agreement between him and Budh Singh dated 15.05.2006. What he states in his evidence is that on 01.06.2006 a deed was executed by Budh Singh in his favour, which has been proved by this witness. This witness also states that Budh Singh by purchasing stamp on 17.05.2006, recorded a deed in favour of Santosh, which was registered on 08.06.2006. In para 2 of his statement, this witness says that when he completed the deal, the respondents knew it. This witness has not been specific as to which deal he is referring to because he has not stated about any agreement dated 15.05.2006. It is true that FIR has been proved by this witness but specifically, this witness has not stated about any deal. Respondents are admittedly not witness to any deed between the petitioner and Budh Singh. Witness Sagwa has also been examined in the case but he has not stated about any deal between the petitioner and Budh Singh on 15.05.2006. He has also not stated about any deed between Budh Singh and respondent no.2 Santosh. What he states is about an incident dated 20.06.2006. But PW1 Rampal, in his statement did not speak about any incident of 20.06.2006.

In view of the foregoing discussion, this Court is of the view that the evidence adduced in the case was not of that level, which is required for summoning a person under Section 319 of the Code. Therefore, learned court below has rightly rejected the application of the petitioner & the revision has also been dismissed, in accordance with law. Accordingly, this Court is of the view that no interference is warranted in the case and the petition deserves to be dismissed.

Accordingly, the petition under Section 482 of the Code is dismissed.