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RAGHURAJ & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Raghuraj & Others v. State Of U.P. & Others - CRIMINAL REVISION No. - 2078 of 2004 [2007] RD-AH 18523 (30 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No.17

Criminal Revision No. 2078 of 2004

Raghuraj and another................ Revisionists.

Versus

State of U.P and others................ Opposite Parties.

Hon'ble Vijay Kumar Verma, J.

"Can a criminal Court alter or review its judgement or final order?" is one of the points that falls for consideration in this revision, which has been preferred against the order dated 15.04.2004 passed in S.T. No. 148 of 2002 (State Vs. Samai Singh) under Section 302 I.P.C. by Sri Vinod Kumar Yadav, the then Addl. Sessions Judge, F.T.C. 1st (Court No. 7), Gautam Budh Nagar, who suo motu exercising the power under Section 319 (1) of the Code of Criminal Procedure altered earlier order and summoned the revisionists to face trial together with chargesheeted accused.

2. The facts leading to the filing of this revision, in brief, are that an F.I.R. was lodged by O.P. No. 2 Samai Singh S/o Duli Chandra resident of Mohalla Kotetariyan, Kasba Jewar, District Gautam Budh Nagar on 07.12.2001 at P.S. Jewar, where a case under Section 302 I.P.C. was registered at crime no. 178 of 2001 against the first informant himself. It was averred in that F.I.R. by the first informant that he committed the murder of his wife Smt. Lajjawati in the previous night at about 11.00 p.m. Thereafter, an application was given at P.S. Jewar on 07.12.2001 by O.P. No. 3 Karan Singh S/o Samal Singh R/o Village Arniyan Mansurpur, P.S. Khurja Nagar, District Bulandshahar, who is the father of the deceased Lajjawati. It was alleged in that application by Karan Singh that murder of his daughter Lajjawati has been committed by Raghuraj Singh, Samai Singh, Than Singh and Des Raj, all sons of Duli Chandra, Man Singh S/o Des Raj, Chandrawati w/o Raghuraj, Kapali D/o Duli Chandra, Khacheru S/o Raghuraj and Duli Chand S/o Inami by hanging her. After investigation of the case, chargesheet was filed against O.P. No. 2 Samai Singh only. On the case being committed to the Court of Session, S.T. No. 148 of 2002 was registered against O.P. No. 2 Samai Singh, who was put on trial. After recording the statements of Karan Singh (P.W.1), Km. Aarti (P.W.2), Ran Singh (P.W.3) and Smt. Urmila (P.W.4), an application under Section 319 of the Code of Criminal Procedure ("Cr.P.C." for short) was moved on 13.11.2002 in aforesaid Session Trial by A..D.G.C. (Criminal) to summon Raghuraj Singh and Than Singh to face trial together with chargesheeted accused Samai Singh. That application was rejected on merit by the Sessions Judge, Gautam Budh Nagar vide order dated 13.11.2002. Thereafter, Addl. Sessions Judge/F.T.C. 1St, Gautam Budh Nagar without taking any other evidence suo motu passed the impugned order on 15.04.2004 and summoned the revisionists to face trial under Section 302/34 I.P.C. Hence, this revision.

3. I have heard Sri Pradeep Kumar Bhardwaj, learned counsel for the revisionists and learned A.G.A. representing the State. None is present for opposite party no. 2 and 3, although notices have been served on them.

4. The main submission made by learned counsel for the revisionists is that in view of the clear provisions of Section 362 Cr.P.C., a Criminal Court is not empowered to alter or review its judgement or final order and hence, the impugned order is liable to be set-aside on this ground alone, because after rejection of the application under Section 319 Cr.P.C. by Sessions Judge, Gautam Budh Nagar on 13.11.2002 in S.T. No. 148 of 2002, there was no occasion for the Court below to alter that order suo motu without taking any other evidence. Next submission made by learned counsel for the revisionists is that summoning of the revisionists solely on the basis of the statement of P.W. 2 Km. Aarti is not justified, as her statement does not find corroboration from any other evidence and after considering this matter, the learned Sessions Judge, Gautambudh Nagar had already rejected the application under Section 319 Cr.P.C. on 13.11.2002 and hence, on the basis of the same evidence, the revisionists could not be summoned to face trial together with chargesheeted accused.

5. Learned A.G.A. on the other hand has supported the impugned order and it is submitted by him that interference by this Court in the impugned order will not be justified, as there is no illegality in the said order.

6. Having given my thoughtful consideration to the contentions raised by the parties' counsel and after going through the record carefully, in my view, the aforesaid submissions made by the learned counsel for revisionists are well-founded and deserve to be accepted. Section 362 Cr.P.C. reads thus:-

362. Court not to alter judgment:- Save as otherwise provided by this Code or any other law for the time being in force, no Court, when it has signed its judgement or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

7. From the plain language used in Section 362 Cr.P.C., it is crystal clear that criminal Court cannot review or alter the judgement or final order disposing of a case except to correct a clerical or arithmetical error. There is complete prohibition for criminal court to alter or review the judgement or final order disposing of a case, except for a limited purpose mentioned in Section 362 Cr.P.C.

8. The Hon'ble Supreme Court in the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and others, (AIR 2001 S.C. 43) has held that review of judgement or order is not permissible under the Code of Criminal Procedure. Similar view has been expressed by the Hon'ble Supreme Court in the case of State of Kerela Vs. M. M. Manikantan Nair (AIR 2001 S.C. 2145). Therefore, having regard to the clear provisions of Section 362 Cr.P.C. and the law laid down by Hon'ble Apex Court in aforesaid cases, there was no occasion for the learned Court below to pass the impugned order suo motu altering the order dated 13.11.2002, passed by learned Sessions Judge, rejecting the application under Section 319 Cr.P.C. for summoning the revisionists to face trial together with chargesheeted accused Samai Singh.

9. The matter of summoning the revisionists for trial under the provisions of Section 319 Cr.P.C. has gained finality due to not challenging the order dated 13.11.2002 by State or complainant. Therefore, without any other evidence, that order could not be altered by Court below. The matter of summoning the revisionists to face trial was decided by Sessions Judge, Gautam Budh Nagar after considering the evidence of witnesses Karan Singh, Km. Aarti, Ran Singh and Urmila vide his order dated 13.11.2002, whereby the application moved by A.D.G.C. (criminal) to summon the revisionists to face trial together with chargesheeted accused Samai Singh was rejected. It is very surprising that the Court below without taking any other evidence has altered the order dated 13.11.2002 passed by the learned Sessions Judge and summoned the revisionists to face trial merely on the basis of the statement of Km. Aarti (P.W.2), which was already considered by the learned Sessions Judge at the time of passing the order dated 13.11.2002. The statements of the witnesses Karan Singh (P.W. 1), Ran Singh (P.W. 3) and Urmila (P.W.4) also were considered by the learned Sessions Judge at the time of passing the aforesaid order dated 13.11.2002. Except the statements of Km. Aarti and aforesaid three witnesses, which were already considered by the learned Sessions Judge at the time of passing the order dated 13.11.2002, there was no other evidence on record to summon the revisionists for trial together with chargesheeted accused Samai Singh. Had there been any other evidence, except the statements of aforesaid four witnesses, to show prima facie involvement of the revisionists in the murder of Smt. Lajjawati, then there would have been no difficulty in exercising the power under Section 319(1) Cr.P.C. to summon the revisionists to face trial and in that situation, the bar created by Section 362 Cr.P.C. would not have been attracted, but summoning the revisionists for trial solely on the basis of the statement of Km. Aarti, which was already taken into consideration at the time of passing the order dated 13.11.2002, is wholly illegal and without jurisdiction, as the learned Court below was not empowered to alter the order dated 13.11.2002 without any other evidence. Therefore, the impugned order cannot be sustained.

10. The scope and ambit of Section 319 Cr.P.C. have been elucidated in several decisions of Hon'ble Apex Court. In Michael Machado and another v. Central Bureau of Investigation and another (2000 (3) SCC 262) construing the words "the court may proceed against such person" in Section 319 of the Code, the Hon'ble Supreme Court held that "the power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. It was further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. The court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused."

11. The above principles were highlighted in Krishnappa v. State of Karnataka (2004 (7) SCC 792).

12. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others (1983 (1) SCC 2), it was held:-

" In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence, the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.

13. In the case of Lok Ram Vs. Nihal Singh and another (AIR 2006 Supreme Court 1892), it was observed by the Hon'ble Apex Court:-

"Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused had committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. 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."

14. Testing the impugned order in the light of the observations made in the aforesaid decisions, let us examine the impugned order on merit. The revisionists have been summoned by the learned Court below vide impugned order dated 15.04.2004 solely on the basis of the statement of Km. Aarti. Although Km. Aarti (P.W.2) in her examination-in-chief, recorded on 06.08.2002 in S.T. No. 148 of 2002, claiming herself to be the eyewitness, had stated that murder of her mother was committed by Raghuraj, Samai Singh and Than Singh, but in her cross-examination recorded on 20.09.2002, she has stated that at the time of murder of her mother, she had come from Arniyan to Jewar. It is worthwhile to mention that the complainant Karan Singh (O.P. No. 3) is resident of Village Arniyan. He is the nana of Km. Aarti. The murder of Smt. Lajjawati was committed in Kasba Jewar in the house of her husband. Km. Aarti has specifically stated in her cross-examination that at the time of murder of her mother, she had come to Jewar from Arniyan. It shows that Km. Aarti was not present in Kasba Jewar at the time of murder of her mother and she did not see any incident. Therefore, summoning the revisionists to face trial merely on the basis of the statement of Km. Aarti was not at all justified. It is also worthy to mention that First Information Report was lodged by the chargesheeted accused Samai Singh himself about committing the murder of his wife Lajjawati by him. It is specifically stated by the accused Samai Singh in the F.I.R. that there was some altercation and exchange of abuses between him and his wife Lajjawati, due to which, he caused her death by throttling. This aspect was not at all considered by the learned Court below and the impugned order has been passed in mechanical manner without applying the mind.

15. Therefore, for the reasons mentioned herein-above, the impugned order being wholly illegal, unjustified and without jurisdiction has to be set-aside.

16. In the result, the revision is allowed. The impugned order dated 15.04.2004 passed by Addl. Sessions Judge/F.T.C. 1st (Court No. 7), Gautam Budh Nagar in S.T. No. 148 of 2002 (State Vs. Samai Singh) is set-aside and entire proceedings pending against the revisionists pursuant to that order are hereby dropped.

Office to send a copy of this judgement within a week to the lower Court concerned for necessary action.

Dated: 30th November, 2007

Yachna


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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