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2004 DIGILAW 597 (PAT)

Tarkeshwar Singh v. State Of Bihar

2004-06-25

INDU PRABHA SINGH

body2004
Judgment 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 5.9.2003 passed by the 6th Additional Sessions Judge, Saran at Chapra in S.T No. 62 of 2000 whereby he was pleased to issue non-bailable warrant of arrest against the petitioner under the provisions of Section 319 of the Code for his appearance in this case under Sections 302, 120-B, 109 and 34 of the Indian Penal Code. 2. The prosecution case, in short, is that one Shahsi Kant Singh, got his fardbeyan recorded at Mashrakh police station on 22.2.1998 alleging therein that on the same day at about 5.15 p.m. the petitioner, Tarkeshwar Singh came on a white Sumo Car and stopped the same in front of Chainpur High School and called Manmohan Prasad, Ragho Singh, Manoj Singh and Chandra Shekhar Singh. He directed them to kill Shivkant Singh, brother of the informant. Thereafter the petitioner went away. After his departure the persons named above took away Shivkant Singh the brother of the informant towards east. The informant followed them for about 300 yards. He saw them throwing his brother Shivkant Singh on the ground and subsequently he saw accused Chandra Shekhar Singh firing from his katta (country made pistol) as a result of which Shivakant Singh died. 3. On the basis of this fardbeyan a formal FIR was drawn up against five persons including the present petitioner. After investigation the police submitted charge- sheet on 13.10.1998 against Chandra Shekhar Singh, Ragho Singh, Manmohan Prasad, Manoj Kumar Singh showing the last three as absconders. However, the investigation against the present petitioner was kept pending. Since Chandra Shekhar Singh was already arrested the charge- sheet was submitted in the case declaring the rest as absconders. 4. Subsequently investigation against the present petitioner was transferred to the Crime Investigation Department (C.I.D.j and pursuant thereto the C.I.D. has taken over the investigation of the case on 3.5.1999 from Mashrakh police. Prayer for bail of accused Chandra Shekhar Singh was rejected by this Court with a direction to the Trial Court to take steps to conclude the trial within nine months. Prayer for bail of accused Chandra Shekhar Singh was rejected by this Court with a direction to the Trial Court to take steps to conclude the trial within nine months. In obedience to this direction the Trial Court concluded the trial of accused Chandra Shekhar Singh after separating the same from the trial of remaining three, namely, Ragho Singh, Manmohan Prasad and Manoj Kumar Singh declaring them as absconders. The trial against accused Chandra Shekhar Singh (ST. No. 59/99) proceeded and the evidence was adduced. In the meantime two other accused persons were also arrested by the police and their case was also attached with the trial of accused Chandra Shekhar Singh. This trial was concluded and Chandra Shekhar Singh was sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian penal Code. The trial of Manmohan Prasad was, however, separated and registered as S.T. No. 62/2000. 5. On 31.2.2001 a petition was filed on behalf of the prosecution to issue summons against the present petitioner since according to the prosecution sufficient evidence has come on record against the present petitioner in the course of trial against accused Chandra Shekhar Singh. The learned Trial Court vide order dated 7.4.2001 was pleased to issue warrant of arrest against the petitioner and two other accused persons, namely, Ragho Singh and Manoj Singh. Against this order Cr. Rev. No. 269 of 2001 was filed before this Court. In this criminal revision apart from other grounds, it was contended that the provisions of Section 319 of the Code will not apply to the present petitioner since he has already figured as an accused in the case and it is only against a person not being an accused that the order under Section 319 of the Code would be passed. It was further contended in the said revision petition that the investigation against the petitioner was still pending and he was neither sent up for trial nor any final report in his favour or against him was submitted by the investigating agency. Since the investigation against him is still pending the exercise of power under Section 319 of the Code would not be permissible as the same would render the provisions of Sections 161, 169, 173, 119 and 193 of the Code redundent. 6. Since the investigation against him is still pending the exercise of power under Section 319 of the Code would not be permissible as the same would render the provisions of Sections 161, 169, 173, 119 and 193 of the Code redundent. 6. This Court by its order dated 24.7.2001 allowed the said criminal revision petition and the order of the learned Trial Court dated 7.4.2001 was set aside. Against this order the informant filed Special Leave Petition (Cri) No. 6923 of 2001 before Honble Supreme Court in which the leave was granted and was registered as Cr. Appeal No. 547 of 2002. By the order dated 24.4.2002 the Honble Supreme Court was pleased to set aside the order passed by this Court on 24.7.2001 (referred to above) and remanded back the case for fresh hearing to this Court. Pursuant to the said remand order Cr. Revision No. 269 of 2001 was again heard by this Court and by the order dated 5.8.2003 the same was allowed and the order of the learned Trial Court dated 7.4.2001 was set aside. The case was remitted back to the Trial Court for proceeding in accordance with law. 7. Pursuant to the order dated 5.8.2003 the Trial Court in another Sessions Trial, namely, ST. No. 62 of 2000 passed the impugned order dated 5.9.2003 and again a non-bailable warrant of arrest was issued against the present petitioner. 8. It was contended that while passing the impugned order the learned Trial Court once again committed the same mistake failing to appreciate that the provisions of Section 319 of the Code will not apply to the present petitioner under the facts and circumstances of this case. Also it was pointed out that since the present petitioner figured as an accused in the case he will not come within the definition of "not being an accused in this case" and as such no action against the present petitioner could be taken under the provisions of Section 319 of the Code. It was, accordingly, prayed that the impugned order be set aside and during pendency of this application further proceeding in the trial including the execution of warrant of arrest against the present petitioner be stayed. 9. The parties have been heard at length with respect to the various submissions made on their behalf. It was, accordingly, prayed that the impugned order be set aside and during pendency of this application further proceeding in the trial including the execution of warrant of arrest against the present petitioner be stayed. 9. The parties have been heard at length with respect to the various submissions made on their behalf. I will firstly refer to the impugned order dated 5.9.2003 according to which finding sufficient materials against the present petitioner for offences under Section 302 of the Indian Penal Code etc. non-bailable warrant of arrest was ordered to be issued against him. This takes us to the consideration of Section 319 of the Code as presumbably this order has been passed under this provision of law. Section 319 of the Code runs as follows : "319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose of aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons may be detained by such Court for the purpose of inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commented afresh and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 10. Learned counsel for the petitioner while making submissions in the Court has placed great emphasise on the words "any person not being an accused" as mentioned in Section 319(1) of the Code. It was his submission that no order under the provision of this section could be passed with respect to a person who already figured as an accused in the case. It was his submission that no order under the provision of this section could be passed with respect to a person who already figured as an accused in the case. According to him since the present petitioner was already named as an accused in the case he goes out of the reach of Section 319 of the Code and on this ground alone the impugned order is fit to be set aside. As against it the learned counsel for the State has submitted that since no charge-sheet against the present petitioner has been submitted he can not be said to be an accused in the case so as to go out of reach of Section 319 of the Code. It has been pointed out that investigation against the present petitioner, in the case pending against him, is still continuing and, therefore, it can not be said that he can be classed as an accused in this case. Since as yet he has not become an accused in the case, order under Section 319 of the Code could be passed against him and as such there was no infirmity in the impugned order. 11. Since the respective contentions of the parties are of the considerable importance it has become necessary for me to find out when a person can be said to be an accused in any criminal case. Before doing so, it has to be mentioned that this is one of those cases in which the police has not submitted charge-sheet against the present petitioner and he has not been sent up for trial. As stated above, the investigation against him is still pending and it is not known whether any charge-sheet or any final report (so called) will be submitted against him. In this connection firstly my attention has been drawn to the case of Joginder Singh and another V/s. State of Punjab and another, AIR 1979 SC 339 . The facts of the said case were as follows : A criminal case was instituted against five persons including Joginder Singh and Ram Singh. During investigation the police found Joginder Singh and Ram Singh innocent and submitted the charge-sheet only against the remaining three who were committed to the Court of Session by the Magistrate. The Sessions Court framed charges only against those three persons. During investigation the police found Joginder Singh and Ram Singh innocent and submitted the charge-sheet only against the remaining three who were committed to the Court of Session by the Magistrate. The Sessions Court framed charges only against those three persons. At the trial stage in course of adducing of evidence the PWs examined also implicated Joginder Singh and Ram Singh. Thereupon an application was filed for summoning these two persons. The Additional Sessions Judge before whom the trial was pending under Section 319 of the Code directed the attendance of these two persons who were appellants before Honble Supreme Court. Against this order of the Trial Court revision application was filed before the High Court and the same was dismissed. Against the order of the High Court S.L.P. was granted by the Honble Supreme Court and in paragraph 9 it was observed as follows : "As regards the contention that the phrase "any person not being the accused" occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(l)clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression. 12. Further the Honble Supreme Court has held as follows : "In our view, the High Court was right in confirming the order passed by the learned Additional Sessions Judge against the two appellants and the appeal is, therefore, dismissed." 13. From this decision it becomes perfectly clear that if an accused named in the FIR is not sent up for trial by the police while submitting the charge-sheet, he being not tried already, can not be described as an accused in the case. In other words the bar of Section 319 of the Code will not apply to him, he being not termed as an accused in the case. He will be covered under the expression "any person not being the accused" in the case. 14. In other words the bar of Section 319 of the Code will not apply to him, he being not termed as an accused in the case. He will be covered under the expression "any person not being the accused" in the case. 14. In the present case as stated above the investigation against the present petitioner is still pending before the C.I.D. and, therefore, it can not be said that he has not been sent up for trial by the police. On its basis it has been submitted that since the police has not yet dropped the case against him during investigation he will certainly be described as an accused in the case and will, therefore, go out of the reach of Section 319 of the Code. It is true that the investigation against the present petitioner is already pending and, therefore, it is not one of those cases in which the accused is not sent up for trial by the police. The question that will now arise for consideration is whether in a given situation can he be described to be "not an accused in the present case". On a careful consideration of this fact it can be safely concluded that no charge-sheet against the present petitioner has been submitted and, therefore, he can not be said to be an accused in the case. However, his name has also not been dropped by the police in the course of the investigation. Under such a situation will it make any difference? Admittedly no charge-sheet has been submitted against the present petitioner and his name also has not been dropped by the police in the course of investigation. In such a situation it can be said that the present petitioner has not as yet been charge-sheeted, whether the investigation against him is still pending and whether the police has not sent him up for trial will hardly make any difference and as such the fact remains that no charge-sheet against him has been submitted to bring him within the sweep of the expression "accused" in the case. Even if the investigation against him is still pending it can not be said that a charge-sheet has been submitted against him as a result of which he will go beyond the sweep of Section 319 of the Code. Even if the investigation against him is still pending it can not be said that a charge-sheet has been submitted against him as a result of which he will go beyond the sweep of Section 319 of the Code. The same would be the situation when the police does not send the petitioner for trial and in that situation also he will come under the expression "who is not being tried already" by the Court as used in above mentioned decision in the case of Joginder Singh (supra). For the reasons stated above in my view whether the charge-sheet has been submitted or whether the investigation against the present petitioner is still pending the fact remains that he is a person who is not being tried already by the Court in the course of the trial. He will be covered by the expression "any person not being the accused" as occurred in Section 319 of the Code. 15. Learned counsel for the petitioner has, however, placed reliance on the case of Sohan Lai and others V/s. State of Rajasthan, AIR 1990 SC 2158 . In the said case the FIR was lodged against the appellants before the Honble Supreme Court and also others. The police had submitted charge- sheet against all of them and cognizance of the offence was taken. However, after hearing the parties the Judicial Magistrate discharged the appellant Nos. 4 and 5 of all the charges and proceeded to frame the charge against the appellant Nos. 1, 2 and 3. Four PWs, were examined in course of the trial. Cognizance against all the five accused was taken. Appellant Nos. 4 and 5 who were discharged by the Judicial Magistrate were summoned on the basis of the evidence adduced in the Court. Two criminal revisions were filed before the High Court against this order. Both of them were dismissed. The question before the Honble Supreme Court was whether two appellants, namely, appellant Nos. 4 and 5 who were discharged by the Magistrate of all the charges could be described as an "accused" in the case. It was held as follows : "........The provision of Section 319 had to be read in consonance with the provisions of Section 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. It was held as follows : "........The provision of Section 319 had to be read in consonance with the provisions of Section 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 398 of the Code may not be lost sight of. 16. From the facts of this case it would appear that here appellant Nos. 4 and 5 were charge-sheeted by the police. They were, however, discharged by the Judicial Magistrate by passing a judicial order which was challenged under Section 398 of the Code. Under the aforesaid fact it would become clear that here since the charge- sheet was already submitted against the appellant Nos. 4 and 5 they were treated to be a classed as accused in the case so as to go out of reach of Section 319 of the Code. 17. The facts of the present case, are, however, different inasmuch as no charge- sheet as yet has been filed against the present petitioner. As already mentioned the pendency of the investigation against the present petitioner will hardly make any difference inasmuch as the fact remains that till date no charge-sheet against him has yet been filed so as to make him go out of the reach of Section 319 of the Code. From the aforesaid two judgments it would become clear that bar of Section 319 of the Code will not apply until the charge-sheet is submitted against a person named as an accused in the FIR. This bar will only come in operation in a case in which charge- sheet has already been submitted since in that situation that person becomes accused in the case and goes out of the reach of Section 319 of the Code. 18. From the aforesaid discussions it becomes clear that in the present case since no charge-sheet has already been filed against the present petitioner he will be very much within the sweep of Section 319 of the Code and will not go out of its reach. 18. From the aforesaid discussions it becomes clear that in the present case since no charge-sheet has already been filed against the present petitioner he will be very much within the sweep of Section 319 of the Code and will not go out of its reach. Hence I do not find any merit in this contention of the learned counsel for the petitioner. 19. It has been further contended on behalf of the petitioner that since the trial of the Chandra Shekhar Singh (S.T. No. 59/99) has already been concluded the present petitioner can not be summoned in the case under the provision of Section 319 of the Code. In this connection it may be stated that while S.T. No. 59/99 was proceeding against Chander Shekhar Singh S.T No. 68 of 2000 was proceeding against Manmohan Prasad and others. It further appears that by the order dated 10.3.2000 both these sessions trial were amalgamated and a joint trial in both these cases proceeded. So far as Chandra Shekhar Singh was concerned by the order dated 16.7.2001 he was convicted by the Sessions Court. From this it would appear that Sessions Trial was still pending on 7.4.2001 the date on which the order under Section 319 of the Code was passed. In this connection a reference may be made to the judgment passed by the Honble Supreme Court in Cr. Appeal No. 547 of 2002 arising out of S.L.P. (Cri) No. 6923 of 2001. The question that came up for consideration before the Honble Supreme Court was, can a person summoned pursuant to an order passed be a Court in exercise of the power conferred under Section 319 of the Code be tried of the offence for which he is summoned even after the conclusion of the trial wherein such an order of summoning him was passed. After a detailed discussion the Honble Supreme Court in the aforesaid decision held that a person summoned under Section 319 of the Code can still be tried for the offence even when the trial of the main accused in the case has already concluded. In this connection reference has also been made to sub-section (4) of Section 319 of the Code. Sub-section (4)(a) shows that the proceedings against a person summon under Section 319 of the Code shall be commenced afresh and witnesses reheard. In this connection reference has also been made to sub-section (4) of Section 319 of the Code. Sub-section (4)(a) shows that the proceedings against a person summon under Section 319 of the Code shall be commenced afresh and witnesses reheard. Sub-section (4)(b) further shows that subject to the provisions of clause (a) the case may proceed as if such person has been accused persons even when the Court took cognizance of the offence upon which the enquiry or trial was commenced. In view of the specific finding by the Honble Supreme Court on this point in this very case it becomes clear that the conclusion on the trial of Chandra Shekhar Singh will hardly make any difference as has been held in the judgment of the Honble Supreme Court (Annexure-4). 20. From the detailed discussions made above it becomes perfectly clear to me that there is no merit in this application and it is not. fit for admission. It is, accordingly, rejected.