SANDHYA Vs. STATE OF U P

JUDGEMENT

(1.) This revision has been filed seeking the quashing of impugned order dated 12.12.2018 passed by Chief Judicial Magistrate, Auraiya, as well as the entire proceedings of Case No.1377 of 2014 (State vs. Radhey Shyam Batham and others), under sections 354, 323, 504 I.P.C., Police Station- Dibiyapur, District- Auraiya.

(2.) Heard learned counsel for the revisionists.

(3.) Submission of the counsel is that the implication of the revisionists has been done on the basis of bad blood which existed in between the parties. The background of the case is that a plot was purchased by the mother of the revisionists on 5.9.2013 but as the opposite party was attempting to illegally possess the plot and encroach upon the same, a case in that regard was filed on 25.9.2013 as original suit no.455 of 2013 in the court of Civil Judge Senior Division, Auraiya which is still pending. When the other side came to know about the legal proceedings initiated by the family of the revisionists on 1.10.2013 the opposite party no.2 along with certain other family members became aggressive and made an assault and attacked upon the house of the revisionists as a result of which mother of the revisionists sustained injuries and a report in this regard was lodged as N.C.R. No.97 of 2013 on 1.10.2013 in Police Station Dibiyapur. Reliance in this regard was placed upon Annexure No.2 of the revision. In this matter a charge-sheet was submitted under sections 323, 324, 452, 504, 506 I.P.C. Again because of the report lodged against the opposite parties the other side felt indignated and out of ire and vengeance entered into confabulations in order to bring an entirely false case against the revisionists and their family members. It was this reason that a number of days after the said occurrence of aggression made by the opposite side they have lodged the present F.I.R. on 5.10.2013. There is hardly any good explanation for this inordinate delay in lodging the F.I.R. and the explanation offered in this regard is quite unpalatable, unconvincing and is incapable of inculcating any belief in the same. After lodging of F.I.R. against the revisionists the investigation took place and it was found that none of the accused persons of the case had any complicity in the crime and as a result of the same the final report was submitted against all the accused persons. Later on, further investigation again took place and though the charge-sheet was submitted against certain other family members of the revisionists but the complicity of the revisionist nos.1 and 2 both remained unsubstantiated on the basis of material collected by the investigation which included the statements of witnesses affirming the absence of both the revisionists at the place of occurrence at the time of the said incident. Subsequently, when the trial took place the examination-in-chief of P.W.1 was recorded and as was expected she repeated the same false allegations made against revisionists. The application under section 319 Cr.P.C. was moved and both the revisionists who are brother and sister, have been summoned by the court without even allowing any cross-examination upon the victim. Submission of the counsel is that though technically speaking, it is permissible under law that an additional accused can be summoned even on the basis of examination-in-chief of a single witness but it all depends upon the facts and circumstances of each individual case which have to be considered before assessing the legitimacy of such exercise. In this particular case where the fact was apparent on the face of record that the implication of both the revisionists was found false by investigation and the evidenciary material collected was highly indicative about their innocence and even their presence at the place of occurrence was not substantiated and the allegations to that effect was found false, and repeatedly the final report was submitted in their favour twice, it would have been a better course and more advisable for the trial Court to have at least allowed the cross-examination of the witness so that the actual worth of the testimony could be better assessed. The Court could also, in a case like this, have proceeded to summon the additional accused after examining more than one witness. According to the counsel the ratio and obiter as has been settled by the Constitution Bench of Apex Court in the case of Hardeep Singh vs. State of Punjab and others, 2014 3 SCC 92, the power to be exercised under section 319 Cr.P.C. is qualitatively different from the power to be exercised under section 204 Cr.P.C. for summoning the accused to face the trial. The standards of sufficiency of evidence which may justify the summoning of an additional accused under section 319 Cr.P.C. is on the higher footing. Such a power must not be exercised either in a casual or caviller manner or in a routine manner. There has to be some very serious circumspection before exercising such power. It is also true that it is not necessary that the Court should conclude on the basis of evidence produced during the course of trial that evidence is of such nature that must entail the conviction of the accused. That is never the requirement. Such a rigorous assessment is not called for. Nevertheless, the measure of the degree of sufficiency of evidence that should persuade the Court to summon an additional accused must be of a convincing nature which may inspire confidence. Submission is that the order impugned reflects that it is a very casually passed order in which the ipse dixit of the victim who in the circumstances was not expected to say anything other than what she said earlier in the F.I.R. or could not have been expected not to reiterate her earlier allegation has been rather credulously brought to serve and become the sole basis to summon the revisionists-accused. Her testimony could have been allowed to be estimated on the anvil of some questions at least in the background of the fact that the false implication of the aforesaid two accused was repeatedly found and affirmed twice in the course of investigations that took place earlier in the case. Submission is that the summoning of the accused reflects that neither the ratio nor the obiter of the Constitution Bench of the Apex Court has been followed in the right spirit and therefore the impugned order is not tenable in the eyes of law.