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2012 DIGILAW 1582 (PAT)

Ajay Choudhary v. State Of Bihar

2012-11-26

SHIVAJI PANDEY

body2012
ORDER Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel for opposite party no.2. 2. This application has been filed for quashing the order dated 14.12.2010, passed in S.T. No.177 of 2009, arising out of Dehri P.S. Case No.348 of 2008 by the learned Additional Sessions Judge, Fast Track Court No.II, Rohtas at Sasaram by which the court below allowed the petition filed by the prosecution under section 319 of the Code of Criminal Procedure (hereinafter referred to as „the Code?) summoning the petitioner to stand the trial. 3. Brief facts of the case is that one Fatima Khatoon, wife of the deceased, namely, Md. Sadruddin made her Fardbeyan on 2.12.2008 stating, inter alia, that one year back one Binod Painter came to her house and demanded Rs.5,00,000/- as an extortion from her husband. When her husband refused to give any extortion, accused persons, namely, Binod Painter, Ajay Choudhary (petitioner), Anand Choudhary (son of Ajay Choudhary), Krishna alias Manjhila Kahar and Laxman Sao threatened, her husband and son would be eliminated. They also threatened on telephone and also from the roof of the Ajay Choudhary (petitioner) but her husband did not succumb and refused to pay extortion money. For last one year Binod Painter did not make any contact but Ajay Choudhary and his son, Anand Choudhary, used to threaten to kill her husband and her son. One week before the date of occurrence the informant would know that Binod Painter had demanded extortion money of Rs.5,000/- from the ready made shop keeper. The proprietor of the shop, namely, Arbind Kumar refused to pay whereupon he threatened, his name was added along with Md. Sadruddin Kabari already in his list. When she could know about the incident, she suggested her husband to inform the police and take police protection but her husband refused to make complaint to police about threat. 4. On the day of occurrence at about 6.30 P.M. the informant received an information that her husband had been shot by criminals, instantly she reached to the Bose Clinic where she found her husband dead and had seen profuse bleeding on his body where she could know that her husband had been killed by the accused persons namedabove in front of the tea shop. Thereafter a case was registered under section 302/34 of the Indian Penal Code and 27 of the Arms Act. 5. In this case five persons, namely, Binod Painter, Ajay Choudhary, Anand Choudhary, Laxman and Manjhila Kahar were made accused by the informant. The police took up investigation and submitted charge sheet bearing Charge Sheet No.42 of 2009 dated 2.3.2009 vide Annexure 3 against Anand Choudhary alias Sonu, Ashok Kumar Gupta alias Ashok Master, Laxman Sah, Manjhila Kahar, Amit Kumar Gupta and investigation was shown to be pending against Binod Painter and Satendra Prasad Gupta. On 13.3.2009 the informant filed protest petition (Annexure-4) against all the accused persons except the present petitioner. The sessions court framed charge against five accused persons namedabove vide order dated 29.5.2009. 6. The police submitted second charge-sheet vide charge-sheet no.272 of 2009 dated 31.7.2009 (Annexure-3/1) against Binod Painter but against Satendra Prasad Gupta investigation was shown to be pending and third charge-sheet was submitted by the police vide Charge-sheet No.114 of 2010 dated 22.4.2010 (Annexure-3/2) against Satendra Prasad Gupta and the case was split up vide S.T. No. 403 of 2009 and vide order dated 11.5.2010 S.T. No.177 of 2009 and S.T. No.403 of 2009 were amalgamated. 7. On 29.7.2010 the prosecution evidence was closed and deposition of accused persons under section 313 of the Code was recorded on 2.8.2010. Defence evidence was closed on 26.8.2010. The prosecution advanced his argument on 21.9.2010 but before the conclusion of the argument of defence an application under section 319 of the Code was filed on 19.11.2010. The court below passed the impugned order and issued summons to the petitioner to stand trial. 8. An application under section 319 of the Code was filed taking a plea that the petitioner was named accused in the First Information Report. In paragraph nos. 6, 9, 10 and 117 of the case diary the name of the petitioner has been mentioned and during trial P.Ws. 1, 4 and 7 have also named Ajay Choudhary (petitioner) who had actively participated in the crime along with other accused persons. 9. Learned counsel for the petitioner has submitted that the evidences available in the First Information Report, case diary and charge-sheet can not be a evidence for purposes of section 319 of the Code. Mere naming the petitioner during trial is not sufficient evidence for calling upon the petitioner to stand trial. 9. Learned counsel for the petitioner has submitted that the evidences available in the First Information Report, case diary and charge-sheet can not be a evidence for purposes of section 319 of the Code. Mere naming the petitioner during trial is not sufficient evidence for calling upon the petitioner to stand trial. He further submits that the improved version of the witnesses during trial is not permissible to be taken into consideration while passing the order under section 319 of the code. He has lastly submitted that application under section 319 of the code has been filed belatedly after the closure of evidence from both sides and as such the application which has been filed at a belated stage was not required to be looked into and ought to have been rejected at threshold. He has further submitted that evidence came during trial are not so much, gives inference of reasonable prospect of the conviction of the petitioner. Mere reference of name of the petitioner by the aforesaid prosecution witnesses is not sufficient rather there should a evidence which can be said to be sufficient for likelihood of conviction of the petitioner. He has further submitted that the statements made during trial made before the trial court is completely an improvement of the statements which were recorded by the police during investigation and as such the improved version made by the prosecution witnesses as mentioned hereinabove are required to be ignored and in support of his contention he has relied on the following judgments in the case of : (i) Guriya alias Tabassum Tauquir and others Vs. State of Bihar and another, reported in (2007)8 SCC 224 , Paragraph nos. 4, 5 and 12, (ii) Kailash Vs. State of Rajasthan and another, reported in (2008)14 SCC 51, paragraph no.12 (iii) Lal Suraj alias Suraj Singh and another Vs. State of Jharkhand, reported in (2009) 2 SCC 696, paragraph nos. 13, 16 and 21, (iv) Mohd. Shafi Vs. Mohd. Rafiq and another, reported in (2007) 14 SCC 544, paragraph no.13 and (v) Brindaban Das and others Vs. State of West Bengal, reported in (2009) 3 SCC 329 , paragraph12. 10. State of Jharkhand, reported in (2009) 2 SCC 696, paragraph nos. 13, 16 and 21, (iv) Mohd. Shafi Vs. Mohd. Rafiq and another, reported in (2007) 14 SCC 544, paragraph no.13 and (v) Brindaban Das and others Vs. State of West Bengal, reported in (2009) 3 SCC 329 , paragraph12. 10. Learned counsel for opposite party no.2 has submitted that evidence that has come during trial are sufficient to give an inference of reasonable prospect of conviction of the petitioner as in same set of evidence, other accused persons who have been tried by the sessions court and have already been convicted. The conviction of other co-accused on same set of facts itself show fair chance of conviction of petitioner. 11. In the present case the petitioner was named in the First Information Report but the police filed charge-sheets on three occasions but he was not shown in the column of the accused. During trial P.Ws. 1, 4 and 7 have given the name of the petitioner and also stated that the petitioner was also involved in committing the murder along with other co-accused persons. Section 319 of the Code deals with the situation when the person has not been arraigned as an accused but the name of the person appears during evidence before the trial court in that circumstance the power lies with the trial court to exercise his discretionary power to call upon him to stand the trial. 12. For coming to the right conclusion it will be essential to examine the provision of section 319 of the Code to arrive at right conclusion as to whether the trial court has applied the right principle while exercising the power under Section 319 of the Code and to summon the petitioner to stand the trial. It is relevant to quote Section 319 of the Code which is as follows: “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 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 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.” 13. On bare reading of Section 319 of the Code it appears that the court may exercise the power under section 319 of the Code where in course of enquiry or trial it appears from the evidence that any person not being an accused had committed the said offence for which such person could be tried together with the accused who is already facing criminal trial. The Hon?ble Supreme Court in the case of Michael Machado and another Vs. Central Bureau of Investigation and another, reported in (2000) 3 SCC 362 has held that the basic requirements for invoking the aforesaid section is that it should appear to the court from the evidence collected during the trial or in the inquiry that some person who was not arraigned as an accused in that case has also committed an offence and for which that person could be tried along with other accused persons already arraigned. The court should not exercise the power in a case of some doubt but should also appear to the court about the involvement of that person in the said crime. 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 and second is that in such offence that person could be tried along with person already arraigned as an accused. The discretionary power should be exercised only to achieve criminal justice system and the court should not turn against another person whenever it comes across evidence connecting that other accused also with the offence. The discretionary power should be exercised only to achieve criminal justice system and the court should not turn against another person whenever it comes across evidence connecting that other accused also with the offence. The court has given guideline, the trial has proceeded and the quantum of evidence collected till then and also the amount of time which the court had spent for collecting the evidence. It has been further held that extraordinary power has been conferred on the court under section 319 of the Code should be exercised very sparingly and in compelling situation, reasons exist for taking cognizance against the other person. This power should not be exercised only on mere suspicion but the court must be hopeful that there is a reasonable prospect of the case as against the newly added accused ending in being convicted of the offence concerned. 14. This principle has been approved in the case of Guriya (supra). In that case the Hon?ble Supreme Court has approved the earlier judgments decided in the cases of Michael Machado (supra) and Joginder Singh Vs. State of Punjab, reported in (1979)1 SCC 345 . On the principle that at any stage of the proceeding on the evidence adduced evidence which satisfied the court that the accused persons or those who have not been arrayed as an accused against whom proceeding has been quashed have also committed the offence the court can take cognizance against him and try them along with the accused persons. But the court has given rider that it is an extraordinary power which has been conferred on the court and should be used very sparingly only if compelling reasons exist for taking action against a person against whom action had not been taken. The Hon?ble Supreme Court in paragraph 10 has held as follows: “10. On a careful reading of Section 31`9 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as an accused should face the trial. It is further evident that such person, even though had initially been named in the FIR as an accused, 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 and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary in Sohan Lal V. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.” 15. In the case of Mohd. Shafi (supra) the Hon?ble Supreme court has provided guidelines for summoning the person as an accused who has not been arrayed as an accused in the trial. The court must be satisfied that the person who has been summoned to stand the trial has a 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. In this case also the court has given a caution that the power that has been conferred under section 319 of the Code is an extraordinary power which has been conferred on the court and should be used very sparingly only if compelling reasons exist for taking action against a person against whom action had not been taken. It will be apt to quote paragraph 12 of the said judgment: “12. From the decisions 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, 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.” 16. 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, 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.” 16. In the case of Lal Suraj (supra) in paragraph 16 of the judgment the Hon?ble Supreme Court has held that the principle of strong suspicion is the criteria for framing of charge as all the materials brought during investigation are required to be taken into consideration but the power under section 319 of the Code has to be exercised on the basis of evidence brought before the court. The court has held that from the evidence it should appear that the person who has been summoned there should a possibility of the accused of being convicted on the basis of the evidence brought on record even if the same is taken to be correct in its entirety. The court has given a rider on consideration of the provision of section 319 of the Code that the key words in this section are “it appears from the evidence” ….”any person”…..”has committed any offence”. The court should not exercise the power merely because some witnesses have mentioned the name of such person or that there is some material against that person. But it should be exercised only after due consideration that there are strong case against the person who have been summoned to face the trial there is likelihood of ending the trial in conviction against the person so summoned. It will be appropriate to quote relevant portion of the said Judgment: “9. …. A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this section are “it appears from the evidence” …..”any person” …..”has committed any offence”. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 CrPC would be used by the court. The key words in this section are “it appears from the evidence” …..”any person” …..”has committed any offence”. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 CrPC would be used by the court. This is apart form the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 CrPC has to be exercised very sparingly and with caution and only when the concerned is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the person concerned has committed an offence. The words “it appears” are not be read lightly, on that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the section demands.” 17. In the case of Kailash (supra) the Hon?ble Supreme Court has approved the earlier view as explained hereinabove and has held in affirmance that the power under section 319 of the Code is an extraordinary power conferred on the court to exercise very sparingly, only in compelling reason and it should be exercised in a situation where there exists a possibility that the accused so summoned is in all likelihood would be convicted, such situation can be arrived at upon completion of the cross-examination of the said witness. The court has also approved the view that a judicial exercise is called for keeping a conspectus of the case including the stage at which the trial has already proceeded and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. The court while examining an application under section 319 of the Code has to bear in mind that there is no compelling duty on the court to proceed against other persons. The court while examining an application under section 319 of the Code has to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, the power under section 319 of the Code can be exercised keeping in mind all relevant facts and power should not be exercised mechanically on the ground that some evidence had come on record implicating the person sought to be added as an accused. 18. In the case of Brindaban Das (supra) the Hon?ble Supreme Court has held that court can exercise the discretionary power under section 319 of the Code where there was substantive evidence against the accused persons where there would be all probability to secure conviction. The power under section 319 of the Code is a discretionary power should be exercised very sparingly and with caution. That power can be exercised either on the application made to the court or by the court suo motu. But the test is that there should be overwhelming evidence that has come during the trial which may likelihood of conviction of the person so summoned. 19. From the aforesaid judgments the following test emerges for summoning the person to stand the trial. The persons was not charge-sheeted by the police nor the cognizance was taken against the person concerned but during the trial evidences have come against the persons so summoned and quality and quantity of the evidences which gives an inference of probability or likelihood of conviction, the suspicion even the strong suspicion, cannot be a ground to exercise the discretionary power of the court. 20. Now the case should be considered in the litmus test as having been provided, culled out above from the judgments of the Hon?ble Supreme Court. 21. Let us test the validity of the impugned order by which summon has been issued to the petitioner to stand the trial. For the purposes of Section 319 of the Code this Court will limit the consideration the facts which has come before the trial court through witnesses examined form the side of the prosecution. It appears from the record that three witnesses, namely, P.Ws. 1, 4 and 7 have made statements against the petitioner. The evidence of witnesses has come on record through supplementary affidavit. P.W.1, Md. It appears from the record that three witnesses, namely, P.Ws. 1, 4 and 7 have made statements against the petitioner. The evidence of witnesses has come on record through supplementary affidavit. P.W.1, Md. Kallu Alam, in paragraph no.1 (Annexure-7 to the supplementary affidavit) has given the detailed fact as to how the victim was killed by the accused persons. It has been stated by him in paragraph no.1 that the victim along with his son was returning to his house on his motor cycle. It has been further stated that his motor cycle was intercepted by Laxman Saha, Amit Kumar Gupta, Krishna alias Manjhala Kahar, Anand Choudhary alias Sonu Choudhary and Ajay Choudhary and thereafter two persons, namely, Binod Painter and Ashok Kumar Gupta alias Master fired from their pistols whereupon the victim Sadruuddin had succumbed to the injury. 22. Similarly P.W.4, Md. Tanbir Alam alias Arman, son of the deceased has also taken the name of the petitioner . He has stated that Laxman Sah, Amit Gupta, Manjhila Kahar, Anand Choudhary and Ajay Choudhary intercepted the motor cycle of the victim and Binod Painter and Ashok Master fired from their pistols. His father succumbed to the injuries. P.W.7, Fatima Khatoon, has also taken the name fof the petitioner. But from the record it appears that P.Ws. 4 and 7 are hearsay witnesses whereas P.W.1 has claimed to be an eye witness. It is also to be noted down that other co-accused persons have already been convicted on the basis of aforesaid set of evidences on record. That itself shows that there are sufficient materials on record giving inference of probability, possibility and likelihood of conviction. 23. Accordingly this Court does not find any error in issuing summon to the petitioner to stand the trial. Accordingly this application is dismissed.