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CASE NO.: Appeal (crl.)  621 of 2008

PETITIONER: KUNWAR SARVESH KUMAR

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 08/04/2008

BENCH: A.K.MATHUR & ALTAMAS KABIR

JUDGMENT: JUDGMENT 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.         Leave granted.         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

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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

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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.