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2006 DIGILAW 1301 (PAT)

Gupteshwar Singh v. State of Bihar

2006-12-22

body2006
ORDER 1. Heard. 2. The present petition seeks quashing of order dated 16.6.2006 passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.4, Rohtas at Sasaram in Sessions Trial No. 322 of 2000 under Section 307 etc. of the I.P.C. arid Section 27 of the Arms Act. By the impugned order the learned Judge while disposing of the petition dated 19.6.2004 filed by the prosecution summoned an additional accused Gupteshar Singh alongwith other accused persons. It appears from the impugned order that the above petition dated 19.6.2004 was allowed by the Court on 3.9.2004 and that order was questioned in Cr. Misc. No. 31289/04 and the order of summoning the said additional accused under Section 319 Cr. P.C. was decided by this Court by order passed on 1.12.2005 and the matter was remanded back to the Court concerned for hearing and passing a fresh order in accordance with the provisions of law. The said order passed by this Court has been annexed as Annexure-1. While disposing of the above noted Criminal Misc. Petition the Court had passed order on 1.12.2005 in the light of 1991 (1) P.L.J.R. 41 (S.C.). The matter was as such, re-heard by the learned Judge and by the impugned order dated 16.6.2006 the petition filed by the prosecution was again allowed and as such, the present petition has been filed by the said accused Gupteshwar Singh to quash the summoning by the learned Trial Judge. 3. Learned counsel appearing on behalf of the petitioner has again placed before me 1991 (1) P.L.J.R. 41 (S.C.) Sohan Lal Vs. State of Rajasthan and has submitted that once the accused who had not been sent up or who had been discharged by the Court taking cognizance even if he was figuring as an accused in the F.I.R. he could not be summoned as held by the Apex Court in the case of Sohan Lal It was contended as such that the impugned order is against the ratio of the above noted decision of the Apex Court and as such, is bad requiring interference from this Court. 4. 4. I have gone through the above decision of the Apex Court and I find that the words "any person not being an accused" has been explained to mean that such a person could be a person who even if, being named in the F.I.R. as an accused was either not sent up or against whom the cognizance was not taken and as such, he was discharged. This could appear after going through the decision noted above in Sohan Lal's case and specially in para 14 and onwards of the report. It was as such, held that once an accused is discharged he does not come within the scope of Section 319 Cr.P.C. and if all there was any remedy it could have been availed of by taking resort to Section 398 Cr.P.C. This appears in para 33 of the report. 5. Thus, what appears from the above is as to what exactly could be the meaning of the term "any person not being an accused." Section 319 Cr.P.C. requires to be perused. "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 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 the inquiry into, or trial of, the offence which he appears to have committed (4) There the Court proceeds against any person under sub-section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and 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." 6. (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." 6. Thus, what may appear from the above provision is that the provision could be resorted to in the course of any enquiry or trial of an offence and only the evidence recorded during that course could be considered for deciding the summoning of an additional accused. What further appears is that the standard of appreciation of the evidence for taking action under Section 319 Cr.P.C. is not of a higher degree &5 could be required for proof of commission of an offence. It could simply appear to the Magistrate from evidence that "any person not being an accused "has also committed an offence who was required to be tried together with the accused who were already on trial. The word "appears" was considered in some of the decisions of this Court specially in 1983 B.B.C.J. 300 Indu Bhushan Vs. State of Bihar it was held that the criteria for proceeding under Section 319 Cr. P.C. was different from that of Section 204 Cr. P.C. and that it required some greater rigour for proceeding against the accused than what was required under Section 204 Cr.P.C. and after comparing the two provisions it was held that while summoning an accused under Section 204 Cr.P.C. the Magistrate was only required to look for sufficient material to primafacie satisfy himself about the making out of case while under Section 319 of the Cr.P.C. what was required was some heavier materials indicating that the accused had committed some offence which may indicate towards his guilt. Besides, while considering the offence under Section 319 Cr. P.C. the material should also satisfy the Court about the constitution of a prima-facie offence and commission of that offence by the accused. 7. In yet another decision of this Court reported in 1988 PLJR 632 Ram Shresth Rai Vs. Besides, while considering the offence under Section 319 Cr. P.C. the material should also satisfy the Court about the constitution of a prima-facie offence and commission of that offence by the accused. 7. In yet another decision of this Court reported in 1988 PLJR 632 Ram Shresth Rai Vs. The State of Bihar it was held that the summoning order could be passed only on the basis of the offence and not otherwise and this extraordinary power which vests in the Courts the jurisdiction of taking cognizance of an offence and adding him as an accused on being satisfied on evidence produced before it that other accused or those who have not been arrayed as an accused appeared committing an offence and such persons could be summoned. 8. While considering the scope and ambit of Section 319 Cr. P.C. along with Sections 193 and 209 of the Cr.P.C. the Apex Court considered the legislative history and background of the provision and considered the 41st report of the Law Commission as may appear from 1979 Crl. Law Journal 333 Joginder Singh Vs. State of Punjab. It was held that the Law Commission observed that the power conferred upon a Criminal Court under Section 351 of 1898 Code could be exercised by the Criminal Court only if such person happened to attending the Court could then be detained and proceeded against. It was further observed by the law Commission that the powers under Section 351 of the old Code were not sufficient for summoning a person who also appeared committing an offence along side the other accused persons who were not present in Court for attending the proceeding. This created an anomalous situation. It was observed that there was no express provision in Section 351 for summoning such a person if he was not present in Court. The Law Commission further indicated in its report as may appear from para 25.81 that the power of taking cognizance by a Magistrate was in respect of new cases and Section 351 Cr. P.C. did not say as to in what manner cognizance was to be taken by the Magistrate. The Law Commission further indicated in its report as may appear from para 25.81 that the power of taking cognizance by a Magistrate was in respect of new cases and Section 351 Cr. P.C. did not say as to in what manner cognizance was to be taken by the Magistrate. It was as such indicated that the main purpose of this particular provision was that the whole case against all known suspects could be proceeded expeditiously and convenience required that cognizance against the newly added accused, should be taken in the same mariner as against the other accused. The law Commission as such proposed a recast of Section 351 making it comprehensive and asserting that there would not be any difference in the mode of taking cognizance if a new person is added as an accused during the course of the proceeding, but it was always necessary in such a situation that the evidence must be re-heard in presence of the newly added accused. Thereafter, the Law Commission recommended the recast provision of Section 351 which appears in para 25.81 of its report and if one considers the draft provision as appearing in the Law Commission's Report one could find that it is not different in any manner from what we have presently as the new Section 319 Cr.P.C. Thereafter, the Apex Court considered the provisions of Sections 193 and 209 Cr. P. C. and held that both under Sections 193 and 209 Cr.P.C. the commitment is 'of the Case' and not of the accused whereas under the equivalent provision of the old Code, i.e., Section 193(1) and Section 207(A) it was the 'accused' who was committed and 'not the case. P. C. and held that both under Sections 193 and 209 Cr.P.C. the commitment is 'of the Case' and not of the accused whereas under the equivalent provision of the old Code, i.e., Section 193(1) and Section 207(A) it was the 'accused' who was committed and 'not the case. It is true that there cannot be a committal of the case without there being an accused persons before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court, but once the case in respect of the offence qua those accused who are before the Court is committed then cognizance of the case is said to have been taken properly by the Sessions Court and the Bar of Section 193 would be out of the way and summoning of the additional persons who appeared to be involved in the crime from the evidence led during the trial and directing them to stand their trial alongwith those who had already been committed must be regard as incidentally to such cognizance and a part of the normal process as follows it; otherwise the conferal of the power under Section 319(1) upon the Sessions Court would be rendered nugatory. It was further observed by the Apex Court that Section 319(4) (b) enacts deeming provision in that behalf dispensing with the formal committal order against the newly added accused. Under that provision it is, provided that where the Court proceeds against any person under sub-section (1) then the case may proceed as if such person had been an accused person when the Court took cognizance of the offence on which the enquiry or trial was commenced, in other words, such person must be taken to be an accused at the time of commitment because it is at that point of time the Sessions Court in law takes cognizance of the offence. 9. Thus, what appears from the above observation which are available in para 6 of the report in Joginder Singh's case is that the person who is summoned as an additional accused and who was not an accused before the Court Sessions shall be deemed to be an accused as if he were always present before the Court when the Case was committed to the Court of Sessions. This appears all the more clarified by para 8 of the report which contains the gist of the observation and the scope and ambit of Section 193 read with Section 209 Cr.P.C. and the powers of a Court under Section 319 Cr.P.C. also. I am tempted to reproduce para 8. "it will thus appear clear that under S. 193 read with S. 209 of the Code when a case is committed to tie Court of Session in respect of an offence the Court of Session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under S. 319 (1) can come into play and as such Court can add any person, not an accused before it, as an accused and direct him to be tried alongwith the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be no question of reading S. 319 (1) subject or subordinate to S. 193" 10. As regards the meaning of "not being the accused" it appears from the decision of Joginder Singh that a similar contention was raised before the Apex Court as was raised before me that a person who has been let off or against whom a report under Section 169 Cr.P.C. was submitted is not covered by the above phrase occurring in Section 319 Cr.P.C. The Apex Court replied to the above contention in the following words: "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 of like 319(1) 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." 11. Two more decisions of the Apex Court are relevant for consideration as to who could be summoned under Section 319 Cr.P.C. Both the decisions are reported in A.I.A. 1983 Supreme Court; one at Page 67 and the other at page 595. The first decision at page 67 is Municipal Corporation Delhi Vs. Two more decisions of the Apex Court are relevant for consideration as to who could be summoned under Section 319 Cr.P.C. Both the decisions are reported in A.I.A. 1983 Supreme Court; one at Page 67 and the other at page 595. The first decision at page 67 is Municipal Corporation Delhi Vs. Ram Kishan Rohtagi and the discussions and observations of the Supreme Court from para 17 to 19 after relying upon the above noted decision of Joginder Singh (1979 Crl. Law Journal 333) are in para 19 in following terms:- "In these circumstances, therefore, if the prosecution at any stage produced the evidence which satisfied the Court that the other accused or these who have not been arrayed as accused against whom proceeding have been quashed have also committed the offence the Court can take cognizance against them and try them alongwith the other accused but we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other persons against whom action has not been taken." 12. In yet another decision reported in the same volume of A.I.R. 1983 Supreme Court at page 595, the case of Municipal Corporation Delhi Vs. Ram Kishan Rohtagi (A.I.R. 1983 S.C. 67) was relied upon to declare the scope and ambit of Section 319 Cr.P.C. In the above case the complaint petition had been dismissed against the accused during the enquiry under Section 202 Cr.P.C. held by the Magistrate, but subsequently evidence appeared against him during the trial. The question was whether such a person who had not been summoned after holding enquiry could be summoned at a later stage under Section 318 Cr.P.C. It was held by the Supreme Court that even when an order of a Magistrate declining to issue process under Section 202 Cr.P.C. is confirmed by the higher Court the jurisidction of the Magistrate under Section 319 remains unaffected if other conditions are satisfied. Thereafter it was concluded that such an accused may be summoned if there were compelling evidence before be Court. 13. Thereafter it was concluded that such an accused may be summoned if there were compelling evidence before be Court. 13. Thus, considering the above what appears the settled position of law is that an accused who had not been sent up or who has been discharged by the cognizance taking Court at the time of passing the cognizance and summoning order on a person who was not summoned during the course of enquiry under Section 202 Cr.P.C. on account of insufficiency of the material, besides a person against whom any criminal prosecution has been questioned under Section 482 Cr.P.C. by the High Court, could be summoned by any competent Court which was holding a trial against other person in the same case if on "recording of the evidence the Court finds him also to have committed an offence. 14. Though, this point has not been raised before this Court in the present petition whether an order under Section 319 Cr.P.C. could be passed only when the prosecution files a petition for taking action by the Court under that particular Section, but considering the importance of the question I have decided to look into that aspect of the matter as well. On perusal of Section 319 Cr.P.C. one could very well find that action has to be taken by a Court which could be either of a Magistrate or of a Sessions Judge and the basis for taking action could be the evidence recorded during the trial. The satisfaction has to be of the Court that any person not being an accused also appeared to have committed any offence for which such person could be tried together with the accused already on trial. After considering Section 319 Cr.P.C. it does not appear that any petition was required to be filed before the Court either by any of the interested parties or the prosecution. The Law Commission has pointed out that a person who appeared committing an offence was required to be tried by the Court with the other accused persons so that there is no anomalous situation and the trial in respect of the offence and also in respect of all the accused persons who appeared involved in committing an offence is brought to an end together and expeditiously. This being the purpose, it is the primary duty of the Court to act under Section 319 Cr.P.C. As pointed out by the Apex Court in Ram Kishan Rohtagi (A.I.R. 1983 S.C. 67) and also in some subsequent decisions that the power under Section 319 Cr.P.C. of summoning an additional accused was an extraordinary power conferred upon the Court and as such, it should be used very sparingly and only after compelling reasons existed for taking cognizance against the other persons against whom action had not been taken earlier. The Court while acting under Section 319 Cr.P.C., as such should always keep itself alive to some situations in cases covered by Section 319 Cr.P.C. so as to identifying the appropriate accused , and situation that occur therein. The stage at which the petition for the order under Section 319 Cr.P.C. is filed or the Court is required to pass order under that Section could be a relevant factor. It say for example, the Court is required to pass an order under Section 319 Cr.P.C. after the close of the evidence and after many years of trial the Court may not be inclined to act under Section 319 Cr.P.C. may be, that the evidence which is adduced is of such a nature as may not entail a conviction of the accused. In these circumstances the Court may not be inclined to proceed under Section 319 Cr.P.C. I have only pointed some of the illustrative examples and I do not set down any rule for observation of the Courts. I am also inclined to point out that there could be a case in which the main assailant has not been sent up or a person alleged to have committed gang rape or abduction or kidnapping has been let off by the police or even not summoned by the Magistrate while taking cognizance of the offence, these persons could be summoned. What a Court is required to do is to be alert about the accused persons who are facing trial and whose name or names are appearing through the evidence who are not facing trial alongwith the accused already on trial. If the Court acts with alacrity and promptitude, may be that of the Magistrate or any other Court after the examination of a witness or two for the prosecution, could act under Section 319 Cr. If the Court acts with alacrity and promptitude, may be that of the Magistrate or any other Court after the examination of a witness or two for the prosecution, could act under Section 319 Cr. P.C. That would save time, curtail lethargy and could procure a proper and sound 15. After saying what I have said in the foregoing paragraphs, I find that the impugned order sought to be quashed through the present petition does not suffer from any illegality because the Court has properly considered the facts and law on the point in passing the order of summoning of the petitioner under section 319 Cr.P.C. 16. In the result, the petition is dismissed.