Allahabad High Court
Mahesh Agrawal And Others vs State Of U.P. And Another on 25 October, 2024
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:172250 Reserved on 02.05.2024 Delivered on 25.10.2024 Court No. - 85 Case :- APPLICATION U/S 482 No. - 26260 of 2009 Applicant :- Mahesh Agrawal And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Madhur Prasad,Gaurav Kakkar,S.P.Sharma Counsel for Opposite Party :- Govt. Advocate,M.N.Singh Hon'ble Saurabh Srivastava,J.
1. On previous occasion, when the matter was listed for final hearing, only Sri Gaurav Kakkar, learned counsel for applicants and learned AGA were present but no one was appeared to represent the respondent no.2, therefore, the Court heard only Sri Gaurav Kakkar, learned counsel for applicants and learned AGA for the State and reserved the judgment.
2. The present application U/S 482 Cr.P.C. has been filed for seeking quashing of the summoning order dated 05.09.2009 passed under Section 319 Cr.P.C. and order dated 29.09.2009 issuing NBW against applicants in S.T. No.87 of 2009, under Section 307, 452 IPC and Section 7 of Criminal Law Amendment Act, P.S. Sadar Bazar, District Jhansi, pending in the court of learned Additional Sessions Judge, Court No.4, Jhansi.
3. As per narration of the FIR that on 12.01.2009 at 11:00 AM when the informant was not present at his house, one person who was armed with a knife assaulted his wife and mother and caused them injuries and when alarm was raised, he fled away from the place of incident. On suspicion, informant lodged FIR against one unknown person.
4. After registration of the FIR, inquiry was conducted and during course of investigation, name of one Pawan Saxena came into light as an accused who made assault upon Smt. Shikha and Smt. Pushpa (wife and mother of the informant) and when the accused was arrested and his confessional statement was recorded and in the confessional statement, the said accused did not anywhere allege that he had committed the said crime at the instance of the applicants. Thereafter, charge sheet in the present case was submitted on 28.01.2009 against only one person namely Pawan Saxena son of Ratiram Saxena whereas the names of the applicants were dropped from the said case. After taking cognizance over the said charge sheet, case was committed to the court of Sessions and numbered as S.T. No.87 of 2009 and during the proceedings of trial the statement of PW-1 Mukesh Jain was recorded.
5. During trial, an application under section 311 Cr.P.C. had been filed on behalf of Mukesh Jain/informant on 07.08.2009 for getting Mahendra Kumar Son of Prem Chand summoned as a witness which was allowed and it is only thereafter, the statement of PW-2 had been recorded on 22.08.2009. After recording of the statement of P.W.-2, application under Section 319 Cr.P.C was moved by prosecution to summon the applicants to face trial which was allowed by the court concerned on dated 05.09.2009 to face trial for the offences under section 120B, 34 and 307 I.P.C which impugned the present application.
6. Learned counsel for applicants submitted that applicants though were named in the F.I.R. no specific allegation had been levelled against them on the contrary, perusal of the F.I.R. clearly reveals that the informant had named the applicants in the same on account of mere suspicion. In view of the same there was nothing in the F.I.R. to draw the conclusion that the applicants were actually involved in the commission of offence.
7. Learned counsel for applicants argued that when the charge sheeted accused Pawan Saxena was interrogated by the police, the said accused even in his confessional statement did not make any allegation as against the applicants, the said person also did not make a whisper about being involved in the commission of offence at the instance of the applicants. It has also been contended by learned counsel for applicants that during trial, the key witnesses, namely, Sikha and Pushpa who were the injured persons, had yet not been examined but without even waiting for their testimony, the trial court proceeded to exercise the powers under section 319 Cr.P.C. as against the applicants which appears to be wholly unjustified and unwarranted in the eyes of law, moreso Sikha and Pushpa being the key witnesses to the incident would have been able to give the actual picture of the entire occurrence.
8. Learned counsel for applicants argued that the name of PW-2, Mahendra Kumar was not mentioned in the list of witnesses mentioned in the charge sheet. The said witness only as an afterthought was sought to be produced during trial with the aid of an application under section 311 Cr.P.C., in view of the same the trial has committed manifest error by placing reliance upon the statement of PW-2 who was not even shown as a witness in the F.I.R. or amongst the list of witnesses mentioned in the charge sheet.
9. Learned counsel for applicants argued that that even if the entire statement of PW-1 is relied upon for the sake of argument then also there is nothing in the said statement to reveal that the said witness had actually heard the applicant’s hatching criminal conspiracy with the accused Pawan Saxena for the commission of the offence and in absence of there being specific evidence to this effect, no prima-facie offence under section 120B I.P.C. would be made out against the applicants, in view of which the trial court has committed gross illegality by summoning the applicants for the commission of the offence under section 120B, 34, 307 I.P.C.
10. It has been contended by learned counsel for applicants that there is nothing on record in the form of statement given by PW-1 and PW-2 to show that the applicants at any point of time, had hatched criminal conspiracy for the commission of the offence under section 307 I.P.C., there is also no evidence to show that the applicants at any point of time had acted in furtherance of common intention with Pawan Saxena, as such there appears to be absolutely not an iota of evidence on record to make out a case against the applicants under section 120, 34, 307 1.P.C. Learned counsel for applicants further argued that the statements of PW-1 and PW-2 given during trial, are in complete contradiction to the version given in the F.I.R., in as much there was nothing in the F.I.R. to indicate that Mahendra Kumar/PW-2 had seen the accused applicants talking to lean/thin person who was at the back side of the house of Mukesh Jain, neither did the informant in the F.I.R. anywhere states that he had seen the 3 persons, nor has the informant had further stated that Mahendra Kumar had told him about witnessing the 3 persons coming out of the house of Mukesh Jain and in view of the same it is clear that the said witness has given tutored piece of evidence but these aspects has completely over looked by the trial court while exercising the powers under section 319 Cr.P.C.
11. Learned counsel for applicants argued that it was incumbent upon the trial court to exercise the powers under section 319 Cr.P.C. with abundant caution in fact the said power should have been exercised only if the trial court on the basis of evidence was able to draw the inference that the applicants had actually committed the offence and there were fair chances of there being convicted on the basis of the evidence which was available on record given by PW-1 and PW-2. The observation made by the trial court concerned as regards the applicants being liable for the offence under sections 120B, 34, 307 I.P.C. is against the evidence on record, the same shows total non application of judicial mind on the part of the trial court as despite there being substantive evidence available on record as regards commission of the offence by the applicants under section 120B, 34, 307 I.P.C., the trial court in an absolutely mechanical, arbitrary and cryptic manner, had exercised the powers under section 319 Cr.P.C. and as such, the impugned order may be set aside along with order of issuing non bailable warrants against applicants.
12. In support of his arguments, learned counsel for applicants relied upon the following judgments rendered by Hon’ble the Apex Court:-
(1) Parveen Vs. State of Haryana [AIR 2022 SC 270)
(2) Sagar Vs. State of U.P. and others [(2022) 6 SCC 389]
(3) Brijendra Singh and others Vs. State of Rajasthan [(2017) 7 SCC 706]
(4) Hardeep Singh and others Vs. State of Punjab and others [(2014) 3 SCC 92]
13. Per contra, learned AGA controverted the assertions made by learned counsel for the applicants by drawing attention to the fact that the testimony of PW-2 during the course of trial which has been pointed out the complicity of applicants and their clear role in the incident. Learned AGA also relied upon the judgment rendered by Hon’ble the Apex Court in the case of Hardeep Singh (supra).
14. After having rival contentions raised by learned counsel for applicants as well learned AGA and after perusal of the records alongwith impugn order, the Court finds that in the present case, the trial court concerned has exercised his powers under section 319 Cr.P.C. and summoned the applicants primarily with the aid of section 120B I.P.C. but at the same time, there was nothing on record to show that the applicants had committed the offence with a common intention, neither was there any role of assault assigned to the applicants in the alleged offence. The trial court summoned the applicants with the aid of provisions of Section 120B I.P.C., even though there was not even an iota of evidence on record to actually spell out an offence as against the applicants under section 120B I.P.C.
15. It is well settled that to prove the charge of conspiracy within the ambit of section 120B I.P.C., it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is always difficult to establish conspiracy with direct evidence as such in absence of there being evidence to show meeting of minds between the conspirators for the intent or object of committing an illegal act it would not be safe to hold any person liable for the commission of offence under section 120B I.P.C. On the facts on which the prosecution relied, cannot be held to be adequate for connecting the accused for committing the offence of criminal conspiracy.
16. In the present case, there was not even evidence of the confessional statement of the accused against the applicants, there was no other kind of direct or indirect evidence to indicate that the applicants had hatched criminal conspiracy with the main accused for the commission of crime, in view of which, trial court erred by summoning the applicants under section 120B, 34, 307 I.P.C. Learned trial court illegally and erroneously exercised the powers under section 319 Cr.P.C., even though the said powers are to exercised on abundant caution, sparingly and only in those cases where the circumstances of the case so warrant. The trial court has exercised the said power in an absolutely casual and cavalier manner by summoning the applicants to face trial under section 120B, 34, 307 1.P.C., even though there was lack of proper substantive evidence to connect the applicants with the commission of the crime.
17. By plain reading of record, it also appears that there was nothing in the statement of PW-1 and PW-2 to indicate that the extra ordinary power provided to the court under section 319 Cr.P.C. had to be exercised, there was nothing in the nature of evidence given by PW-1 and PW-2 to make out a ground for the exercise of the said extra ordinary power. It has been clearly held by Hon’ble the Apex Court in the case of Sarabjit Singh and others Vs. State of Punjab and others, (2009) 16 SCC 46 that the power under section 319 Cr.P.C. should be exercised only on compelling reasons and not only because the first informant or one of the witnesses seeks to implicate the other persons. The trial court was also bound to record sufficient and cogent reasons for coming to the conclusion that there was evidence on record to prosecute the applicants for the offence under section 34, 307 1.P.C. with aid of section 120B I.P.C. Relevant paragraphs of the aforesaid judgment are being quoted hereinbelow:-
“17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.
We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined:
“…Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court…”
An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction.
For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.”
18. In the case in hand, there was nothing on record mentioned by learned trial court concerned in order to indicate that the evidence available on record in the form of PW-1 and PW-2 was more than prima-facie case as exercised at the time of framing of charge, but short of satisfaction to an extent, if goes rebutted, would lead to conviction and in absence of such satisfaction, the court should have refrained to exercise powers under section 319 Cr.P.C.
19. In view of the aforementioned discussions as well as in light of the aforesaid judgments, order dated 05.09.2009 passed by learned court of Additional Sessions Judge, Court No.4, Jhansi as well as NBW order dated 29.09.2009, are quashed and entire proceedings in pursuance of S.T. No.87 of 2009 specifically against the applicants, are hereby set aside.
20. The instant application is allowed accordingly.
Order Date :- 25.10.2024
Vivek Kr.
(Saurabh Srivastava, J.)