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2012 DIGILAW 661 (PAT)

Krishna Kumar @ Krishna Prasad v. State of Bihar

2012-04-23

ADITYA KUMAR TRIVEDI

body2012
ORDER Heard learned counsel for the petitioner and learned Additional P.P. for the State. 2. Petitioner is aggrieved by an order dated 07.07.2010 passed by Additional Sessions Judge-IX, Saran at Chapra relating to Sessions Trial No.30/2010 whereby and whereunder petitioner, Krishan Kumar @ Krishna Prasad has been summoned to face trial invoking the power vested through Section 319 of the Cr.P.C. 3. It has been contended on behalf of the petitioner that he happens to be separate in mess and business with other co-accused and was residing away at Bokaro since before the date of occurrence as a result of which on the alleged date and time of occurrence his presence could not be expected. Also submitted that save and except interested witnesses so examined in this case, the other independent witnesses have not named the petitioner. Further submitted that from cross-examination of the independent witnesses the place of residence of petitioner at Bokaro and having been separate in mess and business with other is fully corroborated. So, on the factual position summoning of petitioner is not at all justified. 4. In likewise manner, putting reliance upon the decision reported in 2008(4) PLJR 246, it has been argued that unless and until nature of evidence, having been unrebutted leading to conviction of the proposed accused does not culminate, then in that circumstance summoning of accused invoking Section 319 of the Cr.P.C. is not at all permissible. So on legal aspect also it has been submitted that summoning of petitioner is not justified. 5. On the other hand, learned Additional P.P opposed the prayer and submitted that from the order impugned, it is evident that the learned lower court has discussed the evidence whatever been adduced on behalf of the prosecution showing presence of petitioner as an accused. Consequent thereupon, the order impugned is justified. 6. The present case happens to be the case of dowry death. The deceased died at her Sasural. The informant is uncle of deceased who resides awayfrom the place (Sasural of deceased). Naturally, two sets of evidence have been available before the learned lower court. The first set happens to be all those witnesses who belongs to Naihar of the deceased and the other set belong to Sasural of the deceased. Therefore, they both in their independent way have supported their own plea. Naturally, two sets of evidence have been available before the learned lower court. The first set happens to be all those witnesses who belongs to Naihar of the deceased and the other set belong to Sasural of the deceased. Therefore, they both in their independent way have supported their own plea. Naiharwal supported and shown the petitioner including other as culprit while Sasuralwala had exonerated all the members including the petitioner. The nature of evidence, the credibility of the witnesses, its reliability is to be scrutinized by the trial court at the proper stage of trial. Those things are beyond the scope of adjudication at the present stage when one is expected to proceed in accordance with Section 319 of the Cr.P.C. 7. So far application of Section 319 of the Cr.P.C. is concerned, it happens to an extraordinary power vested to the court while proceeding with the trial to summon all those persons whose involvement is visible from the evidence whatever been produced during trial on behalf of prosecution. For better appreciation, it is desirable to quote Subsection-1 of Section 319 of the Cr.P.C.:– Sub-section.–(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) *********** (3) ***********” 8. There happens to be divergent view of the Hon’ble Apex Court regarding application of Section 319 of the Cr.P.C. According to some view, it should be applied as soon as the name of accused is divulged through the prosecution witnesses without weighing whether those evidence are sufficient to culminate into conviction of the proposed accused while some view suggest that the nature of the evidence should be to that extent. After all, both views suggest that its application should be with more caution so that one should not be harassed. Recently, in a decision reported in 2012 Cr.L.J. 430, wherein after discussing the previous decisions and principle whatever been laid down by the Hon’ble Apex Court at para-16 the following criteria have been identified while exercising power envisaged under Section 319 of the Cr.P.C. 9. For better appreciation the same is quoted below:– “16. Recently, in a decision reported in 2012 Cr.L.J. 430, wherein after discussing the previous decisions and principle whatever been laid down by the Hon’ble Apex Court at para-16 the following criteria have been identified while exercising power envisaged under Section 319 of the Cr.P.C. 9. For better appreciation the same is quoted below:– “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. 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. (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. 10. Now, taking into account the nature of offence in consonance with the nature of evidence, for the present, I do not find the prayer of the petitioner tenable in the eye of law. Accordingly, petition is found to be misconceived and is rejected.