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2012 DIGILAW 1729 (ALL)

Amar Singh v. State of U. P. and Another

2012-08-01

MANOJ MISRA

body2012
Hon'ble Manoj Misra,J.:— I have heard learned counsel for the revisionist and the learned A.G.A. for the State. Considering the nature of the order that is being passed and since the opposite party No.2 has not yet been made an accused, I do not consider it necessary to issue notice to the opposite party No.2. Learned A.G.A. also does not pray for time to file counter-affidavit, as the necessary material is already on record by means of affidavit. By this revision, challenge is to an order dated 19.06.2012 passed by the Additional Sessions Judge, Court No.1, Etah in Session Trial No. 54 of 2007, whereby the application No. 74A, under Section 319 Cr.P.C., to add Ram Asre as an accused to face trial under Sections 147, 148, 302/149 I.P.C., has been rejected. The facts, as they emerge from the record, are that a first information report was lodged by the revisionist against Ram Saran S/o Shanker Lal, Ram Asre S/o Ram Saran, Balram S/o Ram Saran, Ram Vilash S/o Madhav Singh and Mohabbat Singh S/o Parmeshwari, which was registered as Case Crime No. 173 of 2005, under Sections 147, 148, 149 and 302 I.P.C. In this first information report, it was alleged that the son of the informant, namely, Yogesh Kumar, on 05.08.2005 took informant's daughter, namely, Pushpa Devi and Usha Devi for casting vote at Primary Pathshala, Fardpura in connection with Pradhan's election. It is alleged that there Ram Saran S/o Shanker Lal, Ram Asre S/o Ram Saran, Balram S/o Ram Saran, Ram Vilash S/o Madhav Singh and Mohabbat Singh S/o Parmeshwari started fighting, as a result, the informant, his son (Yogesh Kumar) and daughters started running back to their home, but the aforesaid accused persons chased them, accordingly, to save themselves they hid themselves in the house of Jograj S/o Makhan Lal, but the said persons, fired shots from the courtyard of the house of Mahesh S/o Raghuveer, by climbing on a "CHARPAI", thereby causing serious injury to Yogesh Kumar, on his face. Later, Yogesh Kumar died and the case was converted into one punishable under Section 302 I.P.C. The police conducted investigation and laid charge-sheet against Balram, Ram Vilash and Mohabbat Singh, whereas Ram Saran and Ram Asre were let off. Later, Yogesh Kumar died and the case was converted into one punishable under Section 302 I.P.C. The police conducted investigation and laid charge-sheet against Balram, Ram Vilash and Mohabbat Singh, whereas Ram Saran and Ram Asre were let off. On the basis of the charge-sheet, cognizance was taken, the matter was committed to the Sessions Court where it was registered as Session Trial No. 54 of 2007. During the course of trial, statements of PW.1 (Amar Singh-informant), PW.2 (Pushpa Devi), PW.3 (Narendra Singh) were recorded. In the statements of PW.1 and PW.2, the complicity of Ram Asre and Ram Saran were disclosed. These witnesses were also subjected to cross-examination. On the strength of the statements of PW.1 and PW.2, an application was given to add Ram Asre as an additional accused, under Section 319 Cr.P.C. This application was rejected by the court below, against which the present revision has been filed. The contention of the learned counsel for the revisionist is that the court below while rejecting the application under Section 319 Cr.P.C. did not properly consider the law laid down by the Apex Court in the case of Ram Pal Singh and others v. State of U.P. and another reported in (2009) 4 SCC 423 and it also committed error by taking into consideration the material in the case diary, when by decision of the Apex Court in the case of Sarojben Ashwinkumar Shah and others v. State of Gujarat and another reported in (2011) 13 SCC 316 , only the evidence adduced before the Court is to be considered, while exercising power under Section 319 Cr.P.C. It is further contended that the term "evidence" as it appears in sub-Section (1) of Section 319 Cr.P.C., is the evidence tendered during trial, therefore, material in the case diary to the effect that Ram Asre was busy as a Polling Agent, was not relevant. Reliance was placed on the decision of the Apex Court in the case of Ranjit Singh v. State of Punjab reported in (1998) 7 SCC 149 . It was further contended that the prosecution case against Ram Asre was consistent from the very begining, therefore, merely because the police did not lay charge-sheet against him, it could not be said that there was no sufficient evidence against him. It was further contended that the prosecution case against Ram Asre was consistent from the very begining, therefore, merely because the police did not lay charge-sheet against him, it could not be said that there was no sufficient evidence against him. Reliance was placed on the decision of the Apex Court in the case of Suman v. State of Rajasthan and another reported in (2010) 1 SCC 250 . In the case of Suman v. State of Rajasthan and another reported in (2010) 1 SCC 250 , in paragraph 27 of the judgment, the Apex Court observed as under:- "27. In view of the settled legal position as above, we hold 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. As a corollary, we hold that the process issued against the appellant under Section 319 Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her." In the case of Ram Pal Singh and others v. State of U.P. and another reported in (2009) 4 SCC 423 , in paragraph Nos. 18, 19 and 20 of the judgment, the Apex Court observed as under:- "18. All that is required by the Court for invoking its powers under Section 319 Cr.P.C.is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter. " 19. In the instant case, although, the appellants were named in the F.I.R., they were not named as accused in the charge-sheet during the trial. However, P.W.1 in his evidence, has named the appellants as persons who were involved in the incident causing the death of Brijesh Kumar Singh and injuries to Manvender Singh. " 19. In the instant case, although, the appellants were named in the F.I.R., they were not named as accused in the charge-sheet during the trial. However, P.W.1 in his evidence, has named the appellants as persons who were involved in the incident causing the death of Brijesh Kumar Singh and injuries to Manvender Singh. Despite the above, the trial Court, on two separate occasions, rejected the prayer made by the Respondent No.2 for summoning the appellants herein under Section 319 Cr.P.C. The High Court, after considering the evidence of P.W.1, Kamlesh Singh, thought it necessary for the appellants to be summoned. 20. Although, certain other observations made by the High Court regarding the orders passed by the Trial Court could and should have been avoided, we are also of the view that the High Court had not committed any error in directing that the appellants be summoned to stand trial along with the co-accused, in view of the evidence of P.W.1 during the trial itself. " In the case of Sarojben Ashwinkumar Shah and others v. State of Gujarat and another reported in (2011) 13 SCC 316 , in paragraph 16 of the judgment, the Apex Court observed as under:- "16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this : (i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word `evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused. (vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion." Considering the facts and circumstances of the case and the contentions raised by the learned counsel for the revisionist, as also the law laid down by the Apex Court, as noticed above, I am of the view that the matter requires to re-considered by the trial court. Accordingly, the order dated 19.06.2012 passed by the Additional Sessions Judge, Court No.1, Etah in Session Trial No. 54 of 2007 is set aside, and the court below is directed to pass a fresh order, in accordance with law. Accordingly, the order dated 19.06.2012 passed by the Additional Sessions Judge, Court No.1, Etah in Session Trial No. 54 of 2007 is set aside, and the court below is directed to pass a fresh order, in accordance with law. Learned counsel for the revisionist undertakes that a copy of this order shall be submitted before the court below, within a period of three weeks from today, for information and necessary action. With the aforesaid directions, the revision application stands disposed of. _