Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1429

IN THE HIGH COURT OF ALLAHABAD
Shiv Shanker Prasad, J.
Padmashri Dr. Usha Sharma - Revisionist
Versus
State of U.P. and Another – Opposite Parties
Criminal Revision No. -408 of 2020
Decided On : 05-09-2023

Advocates:
Advocate Appeared:
For the Revisionist : Ashwini Kumar Awasthi
For the Opposite Party : Bhavya Sahai, Mayank Yadav, Pradeep Kumar Mishra, Vivek Kumar Singh

The power under Section 319 Cr.P.C. can be exercised only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances. The trial court has to exercise such discretion with great care and perspicacity as issue of summons under Section 319 Cr.P.C. entitles a denovo trial and large number of witnesses have been examined and their re-examination could prejudice the prosecution and delay the trial.

Headnote:
The court quashed the order of the trial court summoning the revisionist to face trial under Section 319 Cr.P.C. after passing the order of sentence qua co-accused, as it was held to be illegal and unsustainable in the eyes of law. The court held that the trial court had not recorded any finding qua the ingredients provided in Section 319 Cr.P.C. with regard to the evidence for coming to the strong suspicion and his prima facie satisfaction to summon the revisionist to face trial under Section 319 Cr.P.C. as also he had not examined the law laid down by the Apex Court in the cases of Hardeep Singh and Sukhpal Singh Khaira (Supras) on the issue as to when such power under Section 319 Cr.P.C. can be invoked and be exercised by any Magistrate or Court.
Fact of the Case:

The revisionist, a highly qualified and decorated doctor and Padmashri Awardee, was summoned by the trial court to face trial under Section 319 Cr.P.C. for allegedly influencing the investigation and diverting the case of homicidal death into suicidal death in order to safeguard the prestige of the medical college where the deceased was a student. The revisionist challenged the order of the trial court by filing a criminal revision.
Finding of the Court:

The court held that the trial court had not recorded any finding qua the ingredients provided in Section 319 Cr.P.C. with regard to the evidence for coming to the strong suspicion and his prima facie satisfaction to summon the revisionist to face trial under Section 319 Cr.P.C. as also he had not examined the law laid down by the Apex Court in the cases of Hardeep Singh and Sukhpal Singh Khaira (Supras) on the issue as to when such power under Section 319 Cr.P.C. can be invoked and be exercised by any Magistrate or Court. The court further held that the trial court had passed the order impugned after passing the order of sentence qua co-accused, which was illegal and unsustainable in the eyes of law.
Issues: 1. Whether the trial court had recorded its prima facie satisfaction for summoning the revisionist to face trial while passing the impugned order under Section 319 Cr.P.C.? 2. Whether the trial court had rightly/legally exercised its powers under Section 319 for summoning the revisionist to face trial by the order impugned after passing the judgment and order of conviction against the co-accused persons and at the time of passing the order of sentence against the co-accused persons?
Ratio Decidendi: The court relied on the following principles to arrive at its decision: * The power under Section 319 Cr.P.C. can be exercised only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances. * The trial court has to exercise such discretion with great care and perspicacity as issue of summons under Section 319 Cr.P.C. entitles a denovo trial and large number of witnesses have been examined and their re-examination could prejudice the prosecution and delay the trial. * The test that has to be applied under Section 319 Cr.P.C. is one which is more than prima facie case as exercised at the time of taking the charge but short of satisfaction to an extend that the evidence if goes unrebutted would lead to conviction. * Whenever a person is sought to be summoned as an additional accused in terms of Section 319 Cr.P.C., not only prior notice calling upon him to show cause is to be issued, but also the judge dealing with the case has to take extra caution to satisfy himself/herself that stronger evidence exists as the basis for taking such action.
Final Decision: The court quashed the order of the trial court summoning the revisionist to face trial under Section 319 Cr.P.C. after passing the order of sentence qua co-accused, as it was held to be illegal and unsustainable in the eyes of law.

JUDGMENT :

1. Heard Mr. Manish Tewary, learned Senior Advocate assisted by Mr. Ashwini Kumar Awasthi, learned counsel for the revisionist, Mr. Vinay Saran, learned Senior Advocate assisted by Mr. Pradeep Kumar Mishra, learned counsel for the opposite party no.2 and Mr. R.N. Singh, learned A.G.A. for the State as well as perused the entire material available on record.

CHALLENGE TO THE PRESENT CRIMINAL REVISION

2. This revision under Section 397/401 Cr.P.C. has been filed on behalf of the revisionist, namely, Padamshri Dr. Usha Sharma with a prayer to quash/set aside the judgment and order dated 12th December, 2019 passed by Additional Sessions Judge, Court no.1, Meerut in Sessions Trial No.1057 of 2008 (State of U.P. Vs. Sachin Malik & Others), arising out of Case Crime No. 269 of 2004, under Sections 302 and 34 I.P.C., Police Station Medical, District Meerut whereby the revisionist has been summoned by the trial judge to face trial under Section 319 Cr.P.C.

3. GENESIS OF THE CASE

One Siddhartha Chaudhary (for short “deceased”) was a second year student of Meerut Medical College and was found dead in room no. 38 of L.J.B. Hostel which was allotted to Sachin Malik on 06-07-2004. The warden informed the Police as well as his parents who reached Meerut from Muzaffarnagar. The dead body was sealed and removed from the room even before the parents of the deceased arrived, who both are doctors. The parents on enquiry from the warden and the Principal were told that report had been lodged to the police, which in fact was not lodged as per information received by them (parents).

4. As per the report lodged by Dr. Surendra Singh Grewal (informant/opposite party no.2) i.e. father of the deceased on 6th July, 2004, on reaching the mortuary they (parents of the deceased) asked the doctors who were to conduct the postmortem examination to show the dead body and after looking at the body they found swelling and blueness on the face of the deceased. The deceased had an injury on the lip and one tooth was also broken, which showed that the deceased was asphyxiated by blocking the air passage and it was a case of murder, so they requested the doctors who were to conduct the postmortem examination to mention these things in the report, but on receiving the copy of the post mortem report, they did not found it mentioned. Instead of death by strangulation, the postmortem report mentioned that "cause of death could not be ascertained" under pressure from the Principal Dr. Usha Sharma (revisionist herein). It was a clear case of murder of deceased Siddhartha, in which Principal Dr Usha Sharma, Sachin Malik, Amandeep Singh and Yashpal Rang were involved and the aforesaid persons along with others were trying to manifest it as suicide. Dr. Usha Sharma i.e. Principal was protecting the accused persons as she had misrepresented that case as registered whereas it wasn’t, and therefore the informant approached S.S.P. to get the case registered and investigated, who vide his endorsement STC-256-A/04 sent it for registration of F.I.R. and on the basis of which Case Crime No.269/2004 under Section 302 IPC was registered vide F.I.R. No. 199/2004 dated 9th August, 2004.

5. After investigation, the Police filed closure report on 15th February, 2006 against which the informant filed objections. On considering the material available on record like the statements of witnesses recorded under Section 161 Cr.P.C., the observations made by the Human Rights Commission, etc., the Special Chief Judicial Magistrate Meerut vide detailed order dated 6th December, 2006 while rejecting the closure report submitted by the Investigating Officer, had summoned the accused persons, namely, Sachin Malik, Amandeep Singh and Yashpal Rana to face trial, but partly accepted the closure report submitted against the revisionist Dr. Usha Sharma. Thus, case against only three accused namely Sachin Malik, Amandeep Singh and Yashpal Rana had been committed for trial on 8th August, 2008. Charges we