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Allahabad High Court sets aside trial court order summoning murder case co-accused

The brief facts of the case are that the opposite party no.2 had lodged an FIR against unknown persons on November 30, 2017, with the allegation that on the night of 29/30.11.2017 his father Zahid was murdered by some unknown persons and the case was registered as Case in P.S. Bhojpur, District Moradabad under Sections 302, 452 I.P.C.

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The Allahabad High Court has held that the trial court under Section 319 of the Code of Criminal Procedure has extraordinary discretionary power to summon a co-accused, which should be used very sparingly and not be applied mechanically.

A single-judge bench of Justice Vipin Chandra Dixit passed this order while hearing a petition filed by Rahat Ali. The criminal revision has been filed by the revisionist against the order dated July 23, 2019, passed by Additional Sessions Judge, Moradabad, by application filed by opposite party no.2 under Section 319 of Cr.P.C. was allowed.

The brief facts of the case are that the opposite party no.2 had lodged an FIR against unknown persons on November 30, 2017, with the allegation that on the night of 29/30.11.2017 his father Zahid was murdered by some unknown persons and the case was registered as Case in P.S. Bhojpur, District Moradabad under Sections 302, 452 I.P.C.

On the same day, one application was given by the informant Talib to SHO, P.S. Bhojpur, Moradabad to the effect that there was enmity with Yamin, who is neighbour of the informant, and on account of that enmity Yamin and his maternal uncle Mobin entered into the house of the informant, committed the murder of his father and escaped from the place of occurrence.

It is further stated in the application that revisionist Rahat Ali was also involved in the crime and the incident occurred with the conspiracy of revisionists. The Investigating Officer after due investigation and after recording the statements of witnesses has submitted the charge-sheet on February 15, 2018 against Yamin and Mobin. No charge sheet was submitted against the revisionist.

The trial court proceeded and the prosecution had examined four witnesses of facts namely Talib (informant), Smt. Nanhi @ Gulfam Jahan (wife of deceased), Safaq Maulana and Vimla Devi.

The informant/opposite party no.2 after statements of witnesses, had moved an application under Section 319 Cr.P.C. to summon and try the revisionist along with other co-accused.

It is alleged in the application filed under Section 319 Cr.P.C. that revisionists were also accompanying Yamin and Mobin but the I.O. has committed illegality and without conducting proper investigation had submitted the charge-sheet against only Yamin and Mobin and revisionist Rahat Ali was exonerated.

The trial court had allowed the application filed under Section 319 Cr.P.C., by the order dated July 23, 2019, and summoned the revisionist under Sections 452, 302/34 I.P.C. The revision has been preferred by the revisionist Rahat Ali against the order dated July 23, 2019.

It is submitted by counsel for revisionist that revisionist was not named in the F.I.R. and even in the application filed by the informant on November 30, 2017, no specific allegation was levelled against the revisionist and it was specifically stated by the informant that there was enmity with Yamin and on account of that enmity Yamin and Mobin had entered into the house of the informant, committed the murder of his father and escaped from the place of occurrence and the incident was taken place with the conspiracy of revisionist.

It is further submitted by counsel for revisionist that from bare perusal of application dated November 30, 2017, it is apparent that specific allegation for causing murder was leveled against Yamin and Mobin and it was a specific case of the informant that two persons entered into the house of the informant.

He further submitted that from the bare perusal of the application dated November 30, 2017, it is also apparent that the mother of the informant had also identified Yamin and Mobin.

It is further submitted by counsel for revisionist that the statements of witnesses were recorded before the trial court and from a perusal of the same, it is apparent that informant, Talib stated that Yamin and Mobin had entered into his house and committed the murder of his father and the allegation against revisionist Rahat Ali is only of making conspiracy of the occurrence. Smt. Nanhi @ Gulfam Jahan, who is the wife of the deceased, has stated that Yamin was armed with Tamancha, who caused firearm injury to her husband and Mobin was also accompanying Yamin and revisionist Rahat Ali had provided help to accused persons.

Safak Maulana, who is not an eyewitness, has stated that he reached at the house of the deceased after 6-7 minutes of incident and saw Rahat Ali and Yamin but he could not disclose the names of Rahat Ali and Yamin to the informant.

It was also admitted by Safak Maulana, that there was enmity with Rahat Ali as he has given statement in revenue case before the Tehsildar (Judicial) against him in the year 2016. So far as the evidence of Smt. Vimla Devi is concerned, she has stated that Yamin, Mobin and Rahat Ali had confessed before her that they had committed the murder of Zahid.

It is further submitted by counsel for revisionist that prosecution witnesses Talib and Nanhi @ Gulfam Jahan (wife of deceased) had not specifically stated about the involvement of revisionists in the offence and there was specific allegation against Yamin and Mobin.

So far as the statement of Safaq Maulana is concerned, he is an interesting witness as there was enmity between Safaq Maulana and Rahat Ali. Vimla Devi was also not the eyewitness.

It is further submitted by counsel for revisionist that there was no evidence before the trial court regarding the involvement of revisionist.

It is also submitted that the revisionist was not named in the F.I.R. and after due investigation the charge-sheet was submitted against Yamin and Mobin and the revisionist was not charge-sheeted. From the evidence of prosecution witnesses the involvement of revisionist in the incident was not established but the trial court had committed illegality in summoning the revisionist on the application filed by the informant under Section 319 Cr.P.C.

On the other hand, Additional Government Advocate for the State as well as counsel for opposite party no.2 have submitted that the revisionist was also involved in the incident and the trial court after considering the entire evidence and material which are available on record has rightly allowed the application filed under Section 319 Cr.P.C. and summoned the revisionist to face the trial.

The court said that, in the case the trial court has failed to consider that revisionist was not named in the F.I.R. and even the witnesses in their statements recorded under Section 161 Cr.P.C. had not named the revisionist. The I.O. after proper investigation had submitted the charge-sheet against Yamin and Mobin and the revisionist was not charge-sheeted.

The Court noted that, in the application filed by informant on same day after lodging the F.I.R., there was specific allegation for causing murder of his father was against Yamin and Mobin.

The Court held that the trial court had also failed to consider that witnesses of fact produced by the prosecution has specifically stated that two persons namely Yamin and Mobin had entered into the house of informant and committed murder  of his father Zahid and only allegation against the revisionist is to provide help to the accused persons and as such the trial court has committed illegality in summoning the revisionist under Sections 452, 302 I.P.C. by the order.

The power conferred to the trial court to summon an accused under Section 319 Cr.P.C. is an extra-ordinary power and it should be used very sparingly and not be applied mechanically.

In the case, the trial court has committed illegality in allowing the application filed by the informant under Section 319 Cr.P.C. Under these circumstances the evidence adduced by the prosecution did not establish the involvement of revisionist in the case. The evidence brought on record during trial does not prima-facie show the complicity of revisionist in the occurrence and the trial court has erred in summoning the revisionist as an accused.

“The powers conferred under Section 319 Cr.P.C. are discretionary powers of the trial court and are to be exercised sparingly but the trial court without considering the evidence and materials which are available on record had allowed the application filed by the informant under Section 319 Cr.P.C.

Considering the rival submissions of parties as well as material brought on record, the Court is of the view that informant has failed to establish the involvement of revisionist in the case by producing any cogent evidence and the trial court has committed illegality in allowing the application filed by informant under Section 319 Cr.P.C”, the court observed.

“The criminal revision filed by revisionist is liable to be allowed and it is accordingly allowed. The order dated July 23, 2019, passed by Additional Sessions Judge, Moradabad in Sessions Trial  is set aside”, the court-ordered.

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