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IN THE SUPREME COURT OF INDIA
P. Sathasivam and M.Y. Eqbal, JJ.
Mohit alias Sonu and Another - Appellants
Versus
State of U.P. and Another - Respondents
CRIMINAL APPEAL NO. 814 OF 2013 (Arising out of SLP (CRL.) No.1619 of 2010)
Decided on: 1-7-2013
Code of Criminal Procedure, 1973- Section 319- Application for summoning the persons named in FIR as accused in the case and also named in the statements of the witnesses recorded by the investigating officer as per provisions under section 161 Cr.P.C. (Para 22)
Code of Criminal Procedure, 1973- Section 401(2)- High Court’s powers of revision- Opportunity of being heard if order is to the prejudice of the accused or other person in his own defence- It is incumbent upon the revisional court to give notice and opportunity of hearing as contemplated under sub-section (2) of Section 401 of Cr.P.C.- There is no reason why the same principle should not be applied in a case where such orders are challenged in the High Court under Section 482 of Cr.P.C. (Para 11, 22, 29)
Code of Criminal Procedure, 1973- Section 482- Inherent power of High Court- When an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court- Inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged. (Para 23)
Facts of the case:
The trial court rejected the complainant’s application under Section 319 of Cr.P.C. for the second time holding that there was no sufficient evidence against the appellants to proceed against them by issuing summons. The High Court in exercise of its power under section 482 of Cr. P.C. directed the lower court to summon the accused-appellants as per provisions under Section 319, Cr.P.C.
Findings of the Court :
The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. An order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) of Cr.P.C. The complainant ought to have challenged the order before the High Court in revision under Section 397 of Cr.P.C. and not by invoking inherent jurisdiction of the High Court under Section 482 of Cr.P.C. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 of Cr.P.C., the High Court before passing the order would have given notice and opportunity of hearing to the appellants.
Result : Appeal allowed.
JUDGMENT
M.Y. EQBAL, J.
Leave granted.
2. This appeal is directed against the order dated 28th October, 2009 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No. 22823 of 2009 whereby the order dated 3rd August, 2009 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Mathura, rejecting the application moved by the complainant/respondent No. 2 herein under Section 319 of the Code of Criminal Procedure, 1973 in Sessions Trial No. 420 of 2007 was set aside and the trial court was directed to summon the accused/appellants herein.
3. The complainant/respondent No. 2 herein (Deepak) lodged an FIR naming seven persons as accused regarding the occurrence which took place on 7th February, 2003 at 10.30 p.m. stating that the accused persons named in the FIR armed with lathi, danda and hockey caused injuries to his uncle Kamta Prasad as well as to the complainant. The complainant was medically examined on 8th February, 2003 and a lacerated wound of 4 cm x 0.8 cm scalp deep on left side back of his skull was reported by the doctor. Kamta Prasad succumbed to his injuries alleged to have been caused by the accused. The accused were named in the FIR vide Case Crime No. 44/03 under Sections 147, 323, 504, 506, 304 of the Indian Penal Code (in short, “I.P.C.”). The injured complainant as well as other witnesses were examined by the Investigating Officer (I.O.), but the I.O. submitted charge-sheet only against five accused leaving the names of two accused who are appellants before us. After committal of the case for trial, the trial court in S.T. No. 420 of 2007 examined the complainant as PW-1. In his examination- in-chief, the complainant specifically stated the role of the appellants herein in the occurrence. The complainant then moved an application under Section 319 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) for summoning the appellants herein as accused in the case. However, the trial court vide order dated 25th July, 2008 disposed of the application in view of the fact that cross-examination of PW-1 had not completed and the fact had not been cleared from the witness that there existed probability of the conviction of the appellants herein. On a Criminal Miscellaneous Application being filed under Section 482 of Cr.P.C. before the High Court of Judicature at Allahabad against the above order, the High Court vide judgment and order dated 3rd September, 2008 found no error in the order passed by trial court as the trial court had till then not finally decided the question of summoning the appellants and had simply postponed the issue as it thought that the matter should receive its due and proper consideration only after the cross-examination of the witness is over. Subsequently, PW-2 Vivek and PW-3 Deepak Kumar Dubey were also examined apart from the complainant. The second application filed under Section 319, Cr.P.C. was also rejected by the trial court vide order dated 3rd August, 2009 after considering various legal pronouncements, discussing the statements of PW-1, PW-2 and PW-3 and finding out that the evidence on record is improper and contradictory. Challenging this order, the complainant again filed a Criminal Miscellaneous Application under Section 482, Cr.P.C. which was allowed by the High Court vide order dated 28th October, 2009 impugned herein holding that the lower court committed error in rejecting the application of the complainant/respondent No.2 for summoning the accused-appellants herein despite the prima facie evidence adduced by the prosecution disclosing their involvement in the alleged occurrence for which the other accused are facing the trial on the same facts of the case. The High Court by the impugned order directed the lower court to summon the accused-appellants herein as per provisions under Section 319, Cr.P.C.
4. In arriving at its conclusion, the High Court in the impugned order observed as under:
“3. …. From the perusal of the state
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