Sarvesh Kumar Vs. State of U.P.  INSC 598 (8 April 2008)
A.K.MATHUR & ALTAMAS KABIR
O R D E R CRIMINAL APPEAL NO.621 OF 2008 (Arising out of SLP(Crl.)No. 3005
of 2007) We have heard learned counsel for the parties.
This appeal by special leave is directed against the judgment and order
dated 3rd April, 2007 passed by the learned Single Judge of the High Court of
Judicature at Allahabad in Criminal Misc. Application No.7343 of 2007 whereby
the learned Single Judge upheld the order dated 24th March, 2007 passed by the
Additional Sessions Judge-I, Muradabad whereby the learned Additional Sessions
Judge had taken a cognizance against the accused appellant under Section 319 of
the Criminal Procedure Code on the statement of Dharam Pal Singh (PW-1).
-2- The brief facts which are necessary for the disposal of this appeal are
that Dharam Pal Singh (PW-1) filed an FIR before the SHO, Kotwali, Thakurdwar,
Moradabad alleging that after the meeting was over at the PWD Guest House about
10.30 p.m. about 50-60 supporters of MLA Kanwar Sarvesh Kumar Chauhan who were
carrying rifles, pistols, guns in dozen vehicles came to the block premises
amongst other namely, (i) Yogesh Kumar, son of Ram Pal Singh, resident of
Ratupura, (ii) Yogendra alias Bhura, resident of Humanyun Pur, (iii) Neeraj
Chauhan, resident of Kheda Paschimi, (iv) Narendra, son of Lekhraj, resident of
Ratupura, (v) Balram Singh, resident of Faizulla Ganj, (vi) Balkar Singh,
resident of Pega, (vii) Naresh Pal, son of Khanoi, resident of Phaleda, (viii)
Zaibul, resident of Wazidpur, (ix) Bijrendra Chauhan, son of Chatrag Singh,
resident of Majhradak etc. and some other persons who could be identified if
produced before us. These people immediately after arrival, gave warnings and
started giving dirty abuses and when we opposed these people, they started
firing at us wildly in order to kill us and during the course of -3- above
firing, the driver Nem Singh, son of Shri Vishwambh Singh, resident of Dada Ami
Chandra, Bajpur died on the spot and Radhey Sham Yadav, Wakil Sahab Shamsher,
Raju etc. sustained bullet injuries and taken to the hospital for treatment.
Dead body of Nem Singh was lying at the crime scene. On the basis of this
information, a case was registered against the persons under Sections 147, 148,
149, 302/307 of the Indian Penal Code.
Thereafter the statement of Dharam Pal Singh was recorded under Section 161
Cr.P.C. in which he had stated that when we were coming out from the PWD Guest
House after the meeting, mob of 50-60 supporters of MLA Sarvesh Kumar came
there with guns, pistols and rifles and made a rash firing which resulted in
the death of the driver. After the investigation a challan was filed against
the accused persons but no challan was filed against Kanwar Survesh Kumar Singh
Chauhan. After that the trial began and statement of PW-1, Dharam Pal Singh was
recorded and in that he disclosed in the Examination Chief that on 11th June,
2004 at about 10.30 a.m. when we were coming out from the PWD Guest House after
the meeting, mob of 50-60 persons under the leadership of MLA Sarvesh Kumar
Singh -4- Chauhan (accused) who were having rifles, guns, pistols in their
hands started firing in which the driver Nem Singh died on the spot. On the
basis of this statement made by PW-1 in the Examination Chief, an application
under Section 319 was made by the Public Prosecutor for taking cognizance
against the accused Kanwar Sarvesh Kumar Singh Chauhan. Learned Addditional
Sessions Judge-I on the basis of the FIR and statement of PW-1 prima facie
found involvment of Kanwar Sarvesh Kumar Singh Chauhan and accordingly he
issued summons against Kanwar Sarvesh Kumar Singh Chauhan for taking cognizance
of offence against him and to face a trial. The order dated 24th March, 2007
was challenged by Kanwar Sarvesh Kumar Singh Chauhan before the High Court and
the High Court confirmed the order. Hence the present appeal.
Mr. S.K. Dubey, learned senior counsel appearing for the appellant has taken
us to the FIR as well as the statement of Dharam Pal Singh recorded under
Section 161 and statement recorded by Dharam Pal Singh in the trial as PW-1.
After going through the FIR and statement under Section 161, it is apparent
that the PW-1 who filed the FIR did not mention the name of Kanwar Sarvesh Kumar
Singh -5- Chauhan as leading this unruly mob of 50-60 persons with fire arms.
Neither in the statement under Section 161 at any point of time, he alleged
that the mob was being led by Kanwar Sarvesh Kumar Singh Chauhan. It is only
for the first time that during the trial in Examination Chief he has alleged
that Kanwar Sarvesh Kumar Singh Chauhan led this unruly mob. It is true that
under Section 319 the Trial Court has a full discretion to take a cognizance
after it is found that there is a prima facie case against any of the accused
who has not been charge sheeted by the police. But before exercising its
discretion the Trial Court has applied its mind properly. We have gone through
the FIR and the statement under Section 161 and we find that there is no mention
that alleged accused took leading part in heading unruly mob. It is only for
the first time in trial came out that alleged accused took leading part.
Therefore, it will be very hazardous in a situation like one to take the
cognizance against the accused, when for the first time, such a statement was
made in the Court. The cognizance can be taken but the Trial Court should also
be very cautious in taking cognizance on such statement unless there is -6-
some material to support the statement in the Trial Court. The Court should not
proceed barely on the basis of the statement made for first time in Court but
should apply its mind cautiously looking to the attending circumstances of the
case. In this case, we are satisfied that the Trial Court has not applied its
mind properly and mechanically proceeded to issue notice to the cause on the
statement of PW-1 who neither name the accused in the FIR nor did he disclose
this fact in his statement under Section 161 Cr.P.C. It was not proper for the
Court to have proceeded on the basis of the statement of PW-1 disclosing the
name of accused for first time without verification from the attending
circumstances. The power under Section 319 has to be exercised very sparingly
and in cautious manner. If proper caution is not exercised then it may cause
great miscarriage of justice.
However, in the present case apart from the fact that power was not properly
exercised by learned Additional Sessions Judge, all the accused have been
acquitted in trial.
-7- Consequently, we allow this appeal, set aside the order passed by the
Additional Sessions Judge-I, Muradabad dated 24th March, 2007 and the order of
the High Court dated 3rd April, 2007.
The appeal is accordingly, allowed.