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2009 DIGILAW 3795 (ALL)

BRIJ BHAN SINGH v. STATE OF U. P.

2009-12-17

V.K.DIXIT

body2009
JUDGMENT Hon’ble V.K. Dixit, J.—Heard Shri M.G.Tripathi learned counsel for the petitioners and Shri Rajendra Kumar Dwivedi learned Additional Government Advocate for opposite party No. 1. Perused relevant documents on record. Issuance of notice to opposite party No. 2 is dispensed with. 2. By the instant petition, the petitioners have prayed for quashing the impugned order dated 28.3.2009 passed by the learned Judge in Session Trial No. 70/2005 arising out of Case Crime No. 38/2001 under Sections 323, 504, 506, 427, I.P.C. and Section 3(i) (X) SC/ST Act, Police Station Kotwali Dehat Balrampur, District Balrampur pending before the Court of Additional Session Judge/Special Judge, SC/ST Act, Balrampur. 3. Learned counsel for the petitioners submitted that only on the basis of statement of complainant opposite party No. 2, who was examined as PW-1, the impugned order has been passed by the learned trial Court. That the comprehensive perusal which is condition precedent for an appropriate order under Section 319, Cr.P.C. is that the accusation indicated against the persons must be based upon reliable and reasonable evidence but the learned trial Court summoned the petitioner on the basis of contradictory, doubtful, unreliable and inimical evidence given by partition witness PW-1, Smt. Sulochna Devi. 4. Learned counsel for the petitioners placed reliance on the judgement of the Hon’ble Apex Court rendered in the case of Michael Machado and another v. Central Bureau of Investigation and another reported in (2000) 3 SCC 262 . 5. Learned Additional Government Advocate rebutted the arguments advanced by learned counsel for the petitioners and cited the judgement dated 13.11.2009 of the Hon’ble Apex Court in the case of Suman v. State of Rajasthan and another in Criminal Appeal No. 2120/2009 in support of his arguments. Section 319(1) of Criminal Procedure Code provides : “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.” 6. In Michael Machado’s case (supra), the Hon’ble Apex Court held that the basic requirements for invoking Section 319, Cr.P.C. 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 committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. 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 exercised 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 already and the quantum of evidence 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. It is further held by the Hon’ble apex Court that unless the Court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the Court should refrain from adopting such a course of action. 7. It is further held by the Hon’ble apex Court that unless the Court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the Court should refrain from adopting such a course of action. 7. In Suman’s case (supra) the Hon’ble Apex Court held that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319, Cr.P.C. if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. 8. The provision of Section 319, Cr.P.C. empowers the Court to proceed against any person not shown or mentioned as accused if it appears from evidence that such person has committed an offence for which he could be tried together with the main accused against whom an enquiry or trial is being held. The power exercisable under this section is an extraordinary power conferred on the Court to do real justice, it should be used with caution and only if compelling reasons exists for proceeding against a person against whom action has not been taken. 9. In the present case, the First Information Report was lodged against eight persons including the petitioners under Sections 147, 323, 504, 506, 427, I.P.C. and Section 3(1) (x) SC/ST Act at Police Station Kotwali Dehat, District Balrampur but the charge-sheet was filed only against three persons excluding the petitioners. 10. From perusal of the record, it transpires that after recording the statement of PW-1 Smt. Sulochna, complainant of the case, application under Section 319, Cr.P.C. was moved by the prosecution for summoning the accused-petitioners, Brij Bhan Singh, Udai Bhan Singh, Bablu Singh, Dhunmun Singh and Gulahay Singh. By the detailed and well discussed impugned order dated 28.3.2009, the learned trial Court allowed the application under Section 319, Cr.P.C. for summoning the petitioners. Prima facie there is no illegality, perversity or any infirmity in the impugned summoning order dated 28.3.2009 passed by the learned trial Court. By the detailed and well discussed impugned order dated 28.3.2009, the learned trial Court allowed the application under Section 319, Cr.P.C. for summoning the petitioners. Prima facie there is no illegality, perversity or any infirmity in the impugned summoning order dated 28.3.2009 passed by the learned trial Court. In view of the above discussions, no interference is required under Section 482, Cr.P.C. Accordingly, the prayer for quashing the impugned summoning order dated 28.3.2009 passed by the learned trial Court in Session Trial No. 70/2005 relating to Case Crime No. 38/2001 under Sections 323, 504, 506, 427, I.P.C. and Section 3(i) (X) SC/ST Act, Police Station Kotwali Dehat Balrampur, District Balrampur pending in the Court of Additional Session Judge/Special Judge, SC/ST Act, Balrampur is refused. 11. Considering the peculiar facts and circumstances of the case, the nature of the allegation, arguments advanced by the learned counsel of the parties and without expressing any opinion on merit of the case, it is directed that in case if the accused/petitioners surrender and move bail application before the Court concerned within a period of six weeks from today, the same shall be considered and disposed of expeditiously, if possible on the same day after giving opportunity to public prosecutor and for six weeks from today, no coercive steps shall be taken against the petitioners. 12. It is clarified that in case the petitioners do not surrender before the Court concerned as directed above, the benefit of this order will not be available to them and the Court below shall proceed with the case, in accordance with law. 13. With these observations/directions, the petition is disposed of finally. ————