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Allahabad High Court · body

2008 DIGILAW 1879 (ALL)

RAMA KANT TRIPATHI v. STATE OF U P

2008-09-03

ARVIND KUMAR TRIPATHI

body2008
ARVIND KUMAR TRIPATHI, J. The present Criminal Revision has been filed on behalf of the applicants against the judgment and order dated 7. 8. 2008 passed by the Special Judge, SC/st Act, F. T. C. No. 11, Banda under section 319 Cr. P. C. sum moning the applicants under sections 323, 504. 506 IPC and 3 (1) (i) SC/st Act, P. S. Bisanda, District Banda. 2. Heard learned Counsel for the applicants and learned AGA and perused the record. 3. Learned Counsel for the appli cants contended that on the application under section 156 (3) Cr. P. C. filed against the revisionist and others accused persons learned Magistrate directed for registration of the First Information Report and investi gation of the case. After the investigation, the investigating officer submitted the charge-sheet against the co-accused Naimuddin and Rajendra on 7. 2. 2007 and involvement of the applicants had been found false. After the charges were framed PW-1 was examined on 8. 5. 2008 and in his examination-in-chief he has named the re visionist regarding their participation in the aforesaid case along with the other ac cused. Thereafter on the application moved by learned DGC under section 319 Cr. P. C. the applicants have been summoned to face the trial in Special Trial No. 99/07 under sections 323, 504, 506 IPC. and under sec tion 3 (1) (x) SC/st Act, PS Bisanda, District Banda. Learned Counsel for the applicants challenged the summoning order dated 7. 8. 2008 under section 319 Cr. P. C. only on the ground that the Trial Court had com mitted error in summoning the applicants before the cross-examination. According to him only after the cross-examination and recording the satisfaction regarding prob ability and likelihood of the conviction the applicants might have been summoned. Hence on that ground the impugned order is illegal and without jurisdiction. In sup port of the argument learned Counsel for the applicants has relied upon the judg ment passed by the Apex Court in the case of Mohd. Shaft v. Mohd. Rafiq and another. 2007 (58) ACC 254 (SC) = 2007 (53) AIC 56 (SC ). 4. To consider the aforesaid argu ment first the provision of section 319 Cr. In sup port of the argument learned Counsel for the applicants has relied upon the judg ment passed by the Apex Court in the case of Mohd. Shaft v. Mohd. Rafiq and another. 2007 (58) ACC 254 (SC) = 2007 (53) AIC 56 (SC ). 4. To consider the aforesaid argu ment first the provision of section 319 Cr. P. C has to be considered, hence the same is quoted below : "where, in the course of any inquiry into, or trial of, an offence, it ap pears 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. Where such person is not attending the Court, he may be arrested or sum moned, as the circumstances of the case may require, for the purpose aforesaid. 5. Any person attending the Court although not under arrest or upon a sum mons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. Where the Court proceeds against any person under sub-section (1) then - (a) the proceedings in respect of such person shall be commenced 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. From the aforesaid section it is crystal clear that under section 319 Cr. P. C. there is no provision for hearing the accused who has been pro posed to be summoned at any stage of inquiry and trial. If there is evidence against a third person against whom no charge sheet has been filed and prima facie com mission of offence is disclosed from the evidence and there is possibil ity and likelihood of the conviction then that person can be summoned under section 319 Cr. P. C. to face the trial. 6. So for as the case of Mohd. Shafi is concerned, the fact of the aforesaid case is entirely different. In his examination-in-chief PW-1 has alleged that the incident had taken place in his presence and the appellant had taken part in the incident. P. C. to face the trial. 6. So for as the case of Mohd. Shafi is concerned, the fact of the aforesaid case is entirely different. In his examination-in-chief PW-1 has alleged that the incident had taken place in his presence and the appellant had taken part in the incident. An application was filed summoning Mohd. Shafi under section 319 Cr. P. C. only on the basis thereof in view of the fact that the, learned Sessions Judge refused to ac cede to the said prayer stating : "file is taken up. Statement has been perused in regard to the applica tion under section 319 Cr. P. C. On perusal of the statement of the wit ness PW-1 Rafiq uptil now wit nesss chief examination is only done. The witness had stated the incident has taken place in his presence and has further stated to reach the spot on hearing the noise. On going through statement given under section 161 Cr. P. C. of the witness, it is found to be recorded in Paper No. 1 dated 10. 11. 2005 that he reached the spot after the incident as stated by this witness. And accused Karimullah is said to be the incident doer. Hence, the application is not acceptable at this stage. The application under sec tion 319 Cr. P. C. is being dismissed at this stage. " 7. In that case after rejection of the application under section 319 Cr. P. C. the application was filed before the High Court of Judicature at Allahabad under section 482 Cr. P. C. which was allowed against which criminal appeal was preferred be fore the Apex Court. In view of the afore said fact the learned Sessions Judge has clearly mentioned that the witness had stated that the incident has taken place in his presence and had further stated that he reached on the spot on hearing noise, hence at that stage the Trial Court was not satis fied for summoning Mohd. Shafi. Since the Trial Court found that the evidence was not acceptable since there was no even re mote possibility and likelihood of convic tion hence the Court had simply rejected the application under section 319 Cr. P. C. at that stage. 8. In view of the aforesaid fact the Apex Court has observed that before the Trial Court exercises its discretionary ju risdiction in terms of 319 Cr. P. C. at that stage. 8. In view of the aforesaid fact the Apex Court has observed that before the Trial Court exercises its discretionary ju risdiction in terms of 319 Cr. P. C. , it must arrive at its satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. 9. The Apex Court has further ob served that such satisfaction can be arrived at interim alia upon the competition of the cross-examination of the said witness. For the said purpose the Court concerned might also look to consider the other evi dence. In that case, if the Trial Court thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereafter would be taken far less at the instance of a witness and when the State was not aggrieved by the same. Ac cordingly the order of the High Court was set aside by the Apex Court. 10. In case of Michael Machado and an other? the Apex Court held that the basic requirement for invoking the power under section 319 Cr. P. C. is that it should appear from the evidence collected during trial that some other person has committed an offence for which he could be tried to gether. The Court must have reasonable satisfaction from the evidence already col lected to the effect that the other person has committed a, i offence and for such offence he should be tried along with the other accused already arraigned. However, it was observed by the Apex Court that discre tionary power so conferred should be ex ercised only to achieve criminal justice. Paras 11 and 12 of the aforesaid judgment is herein-below quoted: " (11) The basic requirements for invok ing the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has commit ted an offence for which that per son could be tried together with the accused already arraigned. It is not enough that the Court enter tained some doubt, from the evi dence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regard ing two aspects. It is not enough that the Court enter tained some doubt, from the evi dence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regard ing two aspects. First is that the other person has committed an of fence. Second is that for such of fence that other person could as well as be tried along with the al ready arraigned accused. (12) But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be ex ercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded al ready and the quantum of evi dence collected till then and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons. " 11. In the case of Anil Singh and an other v. State of Bihar and others 2008 (1) SCC (Cri.) 708 while con sidering the power under section 319 Cr. P. C. and after considering the several judgments, the Apex Court held that the Court at the stage of section 319 Cr. P. C. might not enter into the merit of the matter. Its opinion in the nature of things could be a prima facie one. But, the Court must also consider that the innocent persons might not be prosecuted. It was further held that the Court is not bound by the opinion of the Investigating Officer but it requires to apply the tests on the touchstone of the materials on record and the balance is re quired to be maintained. The power under the aforesaid section should not be exer cised in a mechanical manner only because some evidence has been brought on record. The power under the aforesaid section should not be exer cised in a mechanical manner only because some evidence has been brought on record. The Court is required to consider whether any case has been made out in exercise of the extraordinary jurisdiction by the Court keeping in view of the fact as to whether the prosecution would be able to bring home the charge. The paras 20 and 27 of the aforesaid judgment are quoted herein below. " (20) Courts power, as noticed hereinbe fore, is not disputed. The learned Sessions Judge, however, as has been observed by the High Court, proceeded on a wrong premise in holding that as no charge-sheet was filed as against the appellants by the police the same was not sufficient to refuse to issue sum mons. The question, which was necessary to be posed in view of the propositions of law as noticed supra, was as to whether any case has been made out for exercise of extraordinary jurisdiction by the Court keeping in view the fact as to whether the prosecution would be able to bring home the charge. If the Court comes to the conclusion having regard to the materials on record, that the prosecution ulti mately may not be able to bring home the charge as against the per sons against whom processes were to be issued, it would decline to do so. The Court must also take into consideration the fact as to whether an appropriate case has been made for exercise of the extraordinary jurisdiction. (21) It may be true that the Court at that stage may not enter into the merit of the matter. Its opinion in the nature of things would a prima fa cie one. But the Court must also consider that the innocent persons may not be prosecuted. The Court is not bound by the opinion of the investigating officer. It is required to apply the tests on the touchstone of the materials brought on record. A balance is required to be main tained. The Court must pose unto itself a right question. It is required to securities the materials more closely. A power under section 319 of the Code of Criminal Procedure is not to be exercised in a mechani cal manner. Only because some evidence has been brought on record, the same by itself may not be a ground to issue processes. The Court must pose unto itself a right question. It is required to securities the materials more closely. A power under section 319 of the Code of Criminal Procedure is not to be exercised in a mechani cal manner. Only because some evidence has been brought on record, the same by itself may not be a ground to issue processes. " 12. In the case of Rajendm Singh v. State of U. P. and another 2007 (7) SCC 378 = 2007 (59) ACC 541 (SC) = 2007 (57) AIC 69 it was held by the Apex Court that if the evidence tendered in the course of trial shows that any person not being accused has committed any offence for which he should be tried together with the accused, he could be summoned to face the trial even though he might not have been charge sheeted by the investigating agency or might have been discharged at a earlier stage. Paras 6, 7 and 11 of the aforesaid judgment are quoted herein below: " (6) It is, therefore, clear that if the evi dence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been discharged at an earlier stage. (7) The High Court has basically relied upon the statements of six wit nesses which had been recorded by the investigating officer under sec tion 161 Cr. P. C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under section 161 Cr. P. C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 Cr. P. C. , the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court commit ted a manifest error of law in rely ing upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of com mission of the crime. Therefore, the High Court commit ted a manifest error of law in rely ing upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of com mission of the crime. " (11) Having considered the submissions made by learned Counsel for the parties, we are of the opinion that the statements of the witnesses un der section 161 Cr. P. C. being wholly inadmissible in evidence could not at all be taken into con sideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea alibi can be re corded by the High Court for the first time in a petition under sec tion 482 Cr. P. C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence adopted by the High Court is clearly is illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under section 319 Cr. P. C. would cease to be operative if the trial of the co- accused has been concluded, has been considered in Shashikant Singh v. Tark-eshwar Singh and it was held as un der in para of the Report; (SCC pa 743 ). "9. The intention of provision here is that where in the course of any en quiry into, or trial of, an offence, it appears to the Court from evidence that any person not being the accused has committed any offence, the Court may proceed against him for the offence which he appears to have committed. At that stage, the Court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safe guard provided in respect of such person is that, the proceedings right from the beginning have mandatory to be commenced afresh and the witnesses reheard. In short, there has to be a de nova trial against him. The provision of de novo trial is mandatory. It vi tally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross examination of such a person. In short, there has to be a de nova trial against him. The provision of de novo trial is mandatory. It vi tally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the man date of section 319 (4 ). The words could be tried together with the accused in section 319 (1), appear to be only directory, could be cannot under these circumstances be held to be must be. The provi sion cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under section 319 (1) was passed, the order would become ineffective and inoperative, nullify ing the opinion earlier formed by the Court on the basis of the evidence before it that the newly added persons appears to have committed the offence resulting in an order for his being brought be fore the Court" 13. In the case of Rakesh and another v. State of Haryana, 2001 (43) ACC 392 (SC) it has been clarified by the Apex Court that it is not mandatory to cross examine the witnesses before sum moning the accused in exercise of power under section 319 Cr. P. C. " (13) Hence, it is difficult to accept the contention of the learned Counsel for the appellants that the term evidence as used in section 319 of Criminal Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such per son as accused. Section 319 does not contemplate an additional stage of first summoning the per son and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such persons is to be added as accused or not. There is no question of cross-examining the witness prior to adding such per son as accused. Section 319 does not contemplate an additional stage of first summoning the per son and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such persons is to be added as accused or not. Word evidence occurring in sub-section is used in compre hensive and broad sense which would also include the material collected by the investigating offi cer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not ar raigned before it is involved in the commission of the crime. (14) Lastly, learned Counsel further submitted that power under sec tion 319 is an extraordinary power and should be used very sparingly and only for some compelling rea sons for taking cognizance of other persons against whom action has not been taken. For this purpose, he referred to MCD v. Ram Krishan Rohtagi 1983 (20) ACC 50 (SC) = 1983 (1) SCC 1 In our view, there cannot be a dispute that power under sec tion 319 is to be sparingly used. But that would not mean that when a prosecutrix names three persons who were involved in the serious crime are not to be added as ac cused by exercise of such power. " 14. In the case of Lok Ram v. Nihal Singh and another, 2006 (55) ACC 585 (SC) = 2ggc, (11) ATC 44 the Apex Court held that the Trial Court has undoubted jurisdiction under section 319 Cr. P. C. add any person not being accused before it to face the trial along with the other accused person. If the Court was satisfied at any stage of the pro ceeding on evidence itself that the persons who have not been arrayed as accused, should face trial. The power under section 319 Cr. P. C. can be exercised by the Court sou-motu or on an application by some one. If the Court is satisfied that any person other than the accused has committed an offence, he is to be tried together with the accused. Even if such person was initially named in the First Information Report as accused but no charge sheet has been filed against him, can also be summoned under section 319 Cr. If the Court is satisfied that any person other than the accused has committed an offence, he is to be tried together with the accused. Even if such person was initially named in the First Information Report as accused but no charge sheet has been filed against him, can also be summoned under section 319 Cr. P. C. to face the trial. Para graphs 10 and 11 of the aforesaid judgment read as under: " (10) On a careful reading of section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the Trial Court has undoubted ju risdiction to add any person not being the accused before it to face the trial along with the other ac cused persons, if the Court is satis fied at any stage of the proceeding on the evidence adduced that the persons who have not been ar rayed as accused should face the trial. It is further evident that such person even though had initially been named in the HR as an ac cused, but not charge sheeted, can also be added to face the trial. The Trial Court can take such a step to add such persons as accused only on the basis of evidence adduced before it an not on the basis of the material available in the charge-sheet or the case diary because such materials contained in the charge-sheet or case diary do not constitute evidence. Of course, as evidence from the decision in Sohan Lal v. State of Rajasthan, the position of an accused who has been discharged stands on a differ ent footing. (11) Power under section 319 of the Code can be exercised by the Court suo motu or on an application by someone including the accused al ready before it. If it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordi nary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word evidence in section 319 contemplates the evidence of wit ness given in Court. Undisputedly, it is an extraordi nary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word evidence in section 319 contemplates the evidence of wit ness given in Court. Under sub section (4) (1) (b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4) (1) (b) a legaj fiction is created that cogni zance would be presumed to have been taken so far as newly added accused is concerned. " 15. In view of the aforesaid discussion it is clear that the basic requirement of sec tion 319 Cr. P. C. is that the Court must have reasonable satisfaction from the evidence collected during inquiry or trial to the fact that some other persons against whom no charge-sheet have been submitted, had committed an offence and for such offence he should be tried along with those ac cused who have been charge- sheeted. 16. The aforesaid power, by the Trial Court, no doubt should be exercised spar ingly and that should be exercised only to achieve criminal justice. If there is even no remote possibility or likelihood of convic tion, the Court will refuse to exercise the power. There is no compelling duty of the Court to proceed against the other persons. Merely on the basis of the suspicious of the involvement in the offence, might not be enough, to exercise the power, for sum moning the other person under section 319 Cr. P. C. unless there is prospect of the con viction. If from the evidence collected dur ing inquiry or trial prima facie commission of offence is disclosed against other person then after satisfaction the Trial Court in exercise of judicial discretion can summon the other person, under section 319 Cr. P. C. , to face the trial along with other accused. 17. In view of the aforesaid fact there is no illegality in the impugned order dated 7. 8. 2008 passed by the Special Judge, SC/st Act, Banda exercising power under section 319 Cr. P. C. to face the trial. P. C. , to face the trial along with other accused. 17. In view of the aforesaid fact there is no illegality in the impugned order dated 7. 8. 2008 passed by the Special Judge, SC/st Act, Banda exercising power under section 319 Cr. P. C. to face the trial. Accordingly the present revision has no force and is rejected. 18. However, in view of the aforesaid facts and circumstances of the case it is di rected that if the applicants appear before the Court within four weeks from today and apply for bail, the same shall be con sidered and disposed of expeditiously without unreasonable delay after affording an opportunity to the prosecution. .