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Madhya Pradesh High Court · body

2010 DIGILAW 212 (MP)

Ramlakhan v. State of M. P.

2010-02-19

INDRANI DATTA

body2010
Judgment ( 1. ) With the consent of parties, matter is finally heard. ( 2. ) Applicants have filed this revision petition under section 397/401 CrPC against the order dated 15/1/2010 passed by the learned Additional District Judge, Sabalgarh in S.T. No. 295/2005 whereby cognizance of offence under section 307,452,294,147,148,149 and 459 IPC has been taken against the applicants on the basis of application filed by complainant under section 319 CrPC. ( 3. ) Facts in a nutshell giving rise to revision are that sessions trial No. 295/05 is pending against accused persons namely Ramveer, Ramcharan, Pappad, Lala, Chandan Singh, Rashid Khan, Lallu, Ramprakash, Vinod and Dilip in connection with Crime No. 251/04. In that case complainant Azad Khan has been examined as PW-1. During trial, he gave statement that applicants also took part in incidence. After completion of examination-in-chief of complainant, an application was filed under section 319 of CrPC by complainant for taking cognizance against applicants. Thereafter, learned trial Court after hearing the arguments allowed the application filed by the complainant under sections 319 of Cr.P.C and ordered that cognizance be taken against applicants under section 307,452,294,147, 148,149 and 459 IPC and issued non-bailable warrants against the applicants. Hence, this revision for setting aside the above order and for discharging the applicants. ( 4. ) Heard the learned counsel for the parties and perused the record. ( 5. ) It is contended by learned counsel for applicants that order passed by the trial Court is illegal and improper as charge-sheet was filed after due investigation against accused persons. It is further submitted that as applicants were not involved in the alleged crime, therefore, charge-sheet was not submitted against them. It is further submitted by learned counsel for the applicants that only on the basis of examination-in-chief of complainant Azad (PW-1) the trial Court has taken cognizance under section 319 CrPC against present applicants which is not proper as complainant has not been subjected to cross-examination in that Court. ( 6. ) Learned counsel for applicants has placed reliance in the case of Mohd. Shafi v. Mohd. Rafiq and Anr. AIR 2007 SC 1899 , wherein it has been held that summoning of additional accused under section 319 while exercising discretion the Court must arrive at satisfaction that there exists possibility that accused so summoned all likelihood would be convicted. ) Learned counsel for applicants has placed reliance in the case of Mohd. Shafi v. Mohd. Rafiq and Anr. AIR 2007 SC 1899 , wherein it has been held that summoning of additional accused under section 319 while exercising discretion the Court must arrive at satisfaction that there exists possibility that accused so summoned all likelihood would be convicted. Such satisfaction can be arrived at upon completion of cross-examination of witness. No exception thereto could be taken far less at instance of witness and when State was not aggrieved by same. Order passed at instance of witness at stage of examination under section 161, improper. Placing reliance on this citation it is submitted that Court has taken cognizance against applicants only after completion of examination-in- chief of complainant Azad on his filing application under section 319 CrPC and though he was not subjected to cross-examination, therefore, in the light of above citation learned counsel for applicants urged that merely because complainant has narrated applicants name in examination-in-chief Court should not have taken cognizance against them. Hence order of trial Court is to be set aside. ( 7. ) Learned counsel for State opposed the petition and submitted that the trial Court under discretionary power has properly taken cognizance and issued non-bailable warrants against applicants. This order is legal and proper and requires no interference. ( 8. ) Heard rival contention of both the counsel and perused the documents on record. ( 9. ) Section 391 of CrPC reads as under :- 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 maybe 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 the inquiry into, or trial of, the offence he appears to have committed. (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 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 commenced afresh, and witnesses reheard; (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 of trial was commenced. A bare reading of section 319 CrPC makes it clear that the provisions of this section 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. This power is conferred on the Court to do real justice. ( 10. ) Perusal of documents on record shows that complainant Azad Khan has specifically stated that applicants have also participated in the incidence. As per impugned order dated 15/1/2010 the trial Court after considering FIR and statements of complainant has taken cognizance against applicants. Statement of complainant on oath has got significant value at this stage. Impugned order of trial Court is legal and proper. "19. As far as the case of Mohd. Shaft v. Mohd. Rafiq (2007 (4) ALJ 317) and another pointed out by learned counsel for applicants is concerned, the same has to be read in the light of the fact of aforesaid case for considering the application of Sec. 319 CrPC. The relevant paragraphs to place fact of that case are quoted here-in-below. (2) A FIR was lodged against the appellant herein by one Rafiq on 10/11/1005 alleging commission of an offence under section 307/324 IPC. In view of the death of the injured, the case was converted to one under section 302 IPC. The police submitted a charge-sheet only against one Karimullah alias Aarif. No charge-sheet was submitted as against the appellant herein, after the matter was taken up for hearing before the learned trial Judge, respondent No. 1 examined himself as PW-1. In view of the death of the injured, the case was converted to one under section 302 IPC. The police submitted a charge-sheet only against one Karimullah alias Aarif. No charge-sheet was submitted as against the appellant herein, after the matter was taken up for hearing before the learned trial Judge, respondent No. 1 examined himself as PW-1. In his examination-in- chief, he alleged that the incident had taken place in his presence and the appellant had taken part in the incident An application was filed for summoning the appellant herein under section 319 of the CrPC only on the basis thereof. The learned sessions Judge refused to accede to the said prayer stating :- Tile is taken up. Statement has been perused in regard to the application under section 319 CrPC. On perusal of the statement of the witness PW1 Rafiq, up till now, witnesss 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 CrPC 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 section 319 CrPC is being dismissed at this stage." (3) Respondent No. 1 filed an application before the High Court of judicature at Allahabad under section 482 CrPC against the said order and by reason of the impugned order, the same has been allowed. The appellant is, thus, before us. (12) The trial Judge as noticed by us, in terms of section 319 of the Code of Criminal Procedure, was required to arrive at his satisfaction, if he thought that the matter should receive his due consideration only after the cross-examination of the witneses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same. (13) From a decision of this Court, as noticed above, it is evident that before a Court exercises its discretionary jurisdiction in terms of section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly, set aside. The appeal is allowed." 20. From the reading of the judgment passed in the case of Mohd. Shaft : (2007 (4) ALJ 317), it is clear that in that case the prosecution witness has alleged that the incident had taken place in his presence. However, he stated further that he reached on the spot after hearing the noise, hence, after considering the fact and circumstances of the case the trial Court found that the application for summoning the appellant Mohd. Shaft was not acceptable at that stage and the same was rejected at that stage. 21. In view of the aforesaid fact that Apex Court has observed that if the trial Court thought that the matter should receive his due consideration only after cross-examination of the witnesses are over, no exception thereto could be taken far less at the instance of a witness and even when the State was not aggrieved by the same. It was further held that in exercise of its discretionary jurisdiction, in terms of the section 319 CrPC, the trial Court must arrive the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. In reference of the aforesaid fact it was observed by the Apex Court that such satisfaction could be arrived at inter alia upon completion of the cross-examination of the said witness and for the said purpose, the Court concerned might also like to consider the other evidence. In reference of the aforesaid fact it was observed by the Apex Court that such satisfaction could be arrived at inter alia upon completion of the cross-examination of the said witness and for the said purpose, the Court concerned might also like to consider the other evidence. At that stage the trial Court was not satisfied to summon other person under section 319 CrPC to face trial which was set-aside by the High Court and as such in view of the fact and circumstances of that case the order of High Court was set-aside by the apex Court. Merely reading one sentence of the aforesaid judgment it cannot be said or interpreted that such other persons cannot be summoned in exercise of power under section 319 of CrPC before cross-examination of the witness. Hence above judgment which has been relied by applicants counsel does not help his cause. ( 11. ) In Mahendra Yadav and Am. v. State of U.P and Am. 2009 CR.LJ 929 it is held that under section 319 CrPC word "evidence" includes statement recorded before the trial Court in examination-in-chief of witness, therefore, on the basis of examination-in-chief of witness if prima facie commission of offence is disclosed, additional accused can be summoned on its basis. ( 12. ) Furthermore, in the case of Ranjit Singh v. State of Punjab, AIR 1990 SC 3148 it has been held that sub-section (1) of section 319 contemplates existence of some evidence appearing in the course of trial where from the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime which he can be tried with those already named by the police. The Court has also clarified that "Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers." ( 13. ) In case of Kailash v. State of Rajasthan and Am. AIR 2008 SC 1564 , it is not held by apex Court that evidence would be complete only after cross- examination and the power could not be exercised on the basis of examination- in-chief. ( 14. ) Thus, view taken by this Court finds support by the ratio of above judgments. ( 15. AIR 2008 SC 1564 , it is not held by apex Court that evidence would be complete only after cross- examination and the power could not be exercised on the basis of examination- in-chief. ( 14. ) Thus, view taken by this Court finds support by the ratio of above judgments. ( 15. ) In view of aforesaid cases, it is apparent that the statements recorded before the trial Court in examination-in-chief is a legal evidence hence if it appears to the trial Court that on the basis of examination-in-chief of witnesses prima facie commission of offence is disclosed such other persons can be summoned to face the trial alongwith the accused, who has already been arraigned as accused. If the Court is satisfied on basis of examination-in-chief of the eyewitness then it is not mandatory for the trial Court to wait for cross-examination or other evidence. ( 16. ) Resultantly, considering the above legal position at this stage, it cannot be said that impugned order is illegal and improper which warrants any interference by this Court. So no ground is made out for setting aside the impugned order. Accordingly, the revision petition is dismissed.