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2011 DIGILAW 1196 (RAJ)

Yusuf Khan v. State of Raj

2011-06-03

MAHESH BHAGWATI

body2011
Hon'ble BHAGWATI, J.—Challenge in this criminal misc. petition is to the order dated 10th November, 2003 whereby the Additional Sessions Judge (Fast Track), Sikar dismissed the application of the petitioner-complainant filed under Section 319 of Cr.P.C. 2. The relevant facts necessary for the just decision of the instant criminal misc. petition are that one sessions trial was pending against the accused persons namely, Rahman Khan, Nijam Khan, Gulamanbee, Abdul Aziz and Maksud for the offences under Section 302, 302/149, 324, 324/149, 325, 325/149 and 323, 323/149, 148 and 447 of IPC. On account of the evidence having emerged against Jassu Khan and Ast Ali Khan during the statements of the eye witnesses of the case, the complainant-petitioner-Yusuf Khan filed an application on 13th June, 2001 under Section 319 of Cr.P.C. before the Additional Sessions Judge (Fast Track), Sikar imploring that these two persons also may be ordered to be summoned to face the trial for the aforesaid offences, together with the other accused persons. 3. Heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order dated 10th November, 2003. 4. At the very outset Shri Rinesh Gupta, Advocate appearing for the respondent No.2 & 3 submitted that the main sessions case has already been finally decided and the five accused persons have been convicted for the offences under Section 302 read with section 149 of IPC and as such the instant criminal misc. petition has rendered infructuous and the same may be dismissed. 5. Learned counsel for the petitioner, in contra, canvassed that even if the trial of the sessions case pending before the learned trial Court has finally concluded, respondent No.2 & 3 against whom ample evidence with regard to committing the offence under Section 302 of IPC has emerged on the record during the statements of the eye witnesses, can be put to trial and there is no bar for the Sessions Court to try these accused persons also independently. 6. In view of above situation, the only crucial question springing for consideration in the instant petition is as to whether power, under Section 319 of Cr.P.C. can be exercised when the trial of the main sessions case has come to an end? 7. To deal with the above question, I need to reproduce Section 319 of Cr.P.c. which reads thus: 319. 7. To deal with the above question, I need to reproduce Section 319 of Cr.P.c. which reads thus: 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) 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 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. 8. A bare reading of the provisions of Section 319(1) of Cr.P.C. reflects that the Court has jurisdiction to proceed against a person for the offence which he appears to have committed, if, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that such person not being the accused has committed any offence for which he could be tried together with the accused and under Section 319(2), Where such person cannot attend the Court, he may be arrested or summoned, as the circumstances of the case may require, and under Section 319(4)(b) where the Court proceeds against any person under sub-section (1), then the case may be proceeded 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. Thus, it is evident that power under Section 319 of Cr.P.C. can be exercised when the inquiry or trial is pending but not after delivering the judgment. 9. Thus, it is evident that power under Section 319 of Cr.P.C. can be exercised when the inquiry or trial is pending but not after delivering the judgment. 9. A case comes to an end only when conviction or acquittal takes place after completion of the trial. If the prosecution evidence has concluded and the case is fixed for recording the defence evidence, it cannot be said that the case has come to an end. Even if the case is fixed for hearing final arguments and the judgment is not delivered, then also it cannot be said that the trial has concluded. But, if after hearing the final arguments the judgment has been delivered by the Sessions Court and the accused/accused persons facing the trial, has/have been convicted or acquitted for the alleged offences, then it can safely be said that the trial of the case has come to an end and thereafter, the power under Section 319 of Cr.P.C. cannot be exercised or utilized. 10. In the case of Abhey Singh Versus The State of Rajasthan(125) reported in RLW 1985, 577, this Court held as under: 10. It will be worth-while to point out that before the present s.319 was introduced in 1973 under the amended Criminal Procedure Code, s.351 was the analogous provision under the old Code but there is a significant distinction between the two provisions. Under s.351 of the old Code sub-s.(1) authorises the criminal court to take cognizance against any person attending the court though not under arrest or upon the summons to detain such person for the purpose of enquiry into or trial of any offence, which from the evidence may appear to have been committed by him and sub-s.(2) of s.351 provided that when the detention takes place in the course of an enquiry under Chapter XVIII or after the trial has been begun, the proceedings in respect of such person were to be commenced afresh and the witnesses re-heard. Whereas u/s 319, the Court has been given power to take proceedings against any person not accused before it, if in the course of any enquiry into or trial of an offence, it appears from the evidence that that person has committed any offence for which he could be tried together with the accused already before the court. Whereas u/s 319, the Court has been given power to take proceedings against any person not accused before it, if in the course of any enquiry into or trial of an offence, it appears from the evidence that that person has committed any offence for which he could be tried together with the accused already before the court. This departure by not keeping a provision like s.351(1) of the old Code clearly shows that the powers u/s 319 can be exercised only while the enquiry or trial of the accused already before the court is still pending. 11. The provisions of Section 319 of Cr.P.C. also implies that the trial of the person so added as an accused has to be with the accused already before the Court and a separate trial is not envisaged. Reference in this connection may be made to the case of State vs. Lekh Raj reported in AIR 1967 (Punjab), 35 wherein H.R.Khanna, J. as his Lordship the then was observed that there could not be a separate trial of the accused persons so added under Section 319 of Cr.P.C. as the provisions of Section 319 of Cr.P.C. categorically envisages the trial of the accused persons so added, together with the accused already facing the trial. 12. Thus, it is clear from the perusal of Section 319 of Cr.P.C. as also the judgment cited above that the power under Section 319 of Cr.P.C cannot be exercised if the trial of the case pending before the Court comes to an end. In the instant case, the five accused persons namely, Rehman Khan, Nijam Khan, Gulamanbee, Abdul Aziz and Maksud have already been convicted in Sessions case No.02/2002 for the offence under Section 302/149 of IPC along with other offences and sentenced to life imprisonment together with a fine of Rs.1,000/- vide judgment dated 4th June, 2004 by the learned Additional Sessions Judge (Fast Track) Sikar. 13. In view of above situation, the instant criminal misc. petition is found to have become infructuous and I do not find any reason to pass any order with regard to the legality, propriety and correctness of the impugned order dated 10th November, 2003 passed by the learned Additional Sessions Judge (Fast Track), Sikar. 14. 13. In view of above situation, the instant criminal misc. petition is found to have become infructuous and I do not find any reason to pass any order with regard to the legality, propriety and correctness of the impugned order dated 10th November, 2003 passed by the learned Additional Sessions Judge (Fast Track), Sikar. 14. Otherwise too, the power conferred on the Court under Section 319 of Cr.P.C. is an extra-ordinary power and is required to be used only for compelling reasons and when there is no clear allegation against a person, the proceedings against him should not be drawn. 15. In the case of Michael Machado and another vs. Central Bureau of Investigation and another reported in AIR 2000 Supreme Court, 1127. The Division Bench of Hon'ble Apex Court has held thus: “The Court must have reasonable satisfaction from the evidence already collected regarding two aspects while invoking power under S.319 to proceed against other persons appearing to be guilty of offence. 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 persons.” 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 another person also with the offence. 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 person. 16. In the present case, as pointed out above, the trial of the case has already come to an end and five accused persons have already been convicted for the offence u/s 302 of IPC together with other offences. It must be remembered that there is no compelling duty on the Court to proceed against other person. 16. In the present case, as pointed out above, the trial of the case has already come to an end and five accused persons have already been convicted for the offence u/s 302 of IPC together with other offences. Hence, an accused person if added by virtue of Section 319 of Cr.P.C. after the conclusion of trial cannot be tried alone and in case the respondent No.2 & 3 are ordered to be tried, their trial shall become without jurisdiction, as the trial will not be conducted jointly with other accused persons in the course. The provisions of Section 319 of Cr.P.C. are mandatory and if viewed from this angle also, it is found that the instant petition has become infructuous. 17. For the reasons stated above, the criminal misc. petition is found to have become infructuous and thus the same stands dismissed as having become infructuous.