Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 2105 (ALL)

Kamta and Another v. State of U. P. and Another

2013-08-14

ZAKI ULLAH KHAN

body2013
Zaki Ullah Khan, J.:— 1. The instant revision has been preferred against the order dated 16.07.2013, passed by Additional Sessions Judge/Ex. Cadre-1, Raebareli allowing the application under Section 319 of Cr.P.C. moved on behalf of informant. The learned Sessions Judge, therefore, directed that the accused Kamta and Satideen be also summoned under Sections 323, 504 and 506 I.P.C. read with Section 3(1)(10) SC/ST Act for trial on the basis of application moved under Section 319 of Cr.P.C. 2. The brief facts giving rise to the revision are that charge-sheet has been submitted under Section 323/504/506 I.P.C. read with Section 3(1)(10) SC/ST Act against accused Lalta and Girdhari by the police of Police Station Dih, District Raebareli. The learned Magistrate took cognizance on the charge-sheet and committed the case to the Court of Sessions for trial and it is triable exclusively by court of sessions. During trial, the prosecution has produced informant Rajdei- P.W.1 and witness Ram Kumar-P.W.-2. The prosecution also produced Dr. Rohit Katiyar and constable Dharmraj as P.W.3 and P.W.4 respectively and when the case was fixed for statement under Section 313 Cr.P.C. for defence an application has been moved on behalf of the complainant Rajdei under Section 319 Cr.P.C. that accused Kamta and Satideen be also summoned for trial as the allegations are very much clear against them also. The opposite party disputed the application on the ground that the proceedings of trial are over and the case has been fixed for statement under Section 313 Cr.P.C. and for defence. Therefore, this is beyond the purview of Section 319 of Cr.P.C. and the court can utilize the Section 319 Cr.P.C. only during trial or during inquiry but afterwards this type of proceedings cannot be initiated. The court after hearing both the parties allowed the instant application. Aggrieved by the aforesaid order, the instant revision has been preferred. 3. Learned counsel for the revisionist argued at length and pointed out that the impugned order is bad in law and cannot be sustained because the court has not reached to the conclusion that the persons so summoned are in all likelihood would be convicted. Therefore, it should be primarily requirement that fact should be such that it may warrant in conviction. In support of his contention, learned counsel for the revisionist placed reliance on the judgment of Hon'ble Apex Court in Mohd. Shafi vs. Mohd. Rafiq, reported in [2007(58)ACC 254(SC)]. Therefore, it should be primarily requirement that fact should be such that it may warrant in conviction. In support of his contention, learned counsel for the revisionist placed reliance on the judgment of Hon'ble Apex Court in Mohd. Shafi vs. Mohd. Rafiq, reported in [2007(58)ACC 254(SC)]. The Hon'ble Apex Court in para 13 of the said judgment has held as under:- "13. From the 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." 4. Therefore, learned counsel for the revisionist argued that it was the duty of the court to satisfy itself that there exists a possibility that the accused so summoned is in all likelihood would be convicted; that means the satisfaction of the court should be full proof and should be on record that if summoned they would be convicted on the evidence before the court. The learned trial court did not mention any satisfaction regarding these facts and, therefore, order is liable to be set aside and purely based on conjectures and surmises. 5. Learned A.G.A. replied that there is no restriction on the powers of the court under Section 319 of Cr.P.C. The Court can entertain this application at any stage, therefore, satisfaction of the court is not confined to the prosecution evidence. Even after conclusion of the evidence, the powers can be exercised. The allegations against the revisionists are that they have been named in the F.I.R. and even the prosecution witnesses have named them, therefore, it is full proof record of these facts. 6. Replying to the arguments advanced by learned A.G.A., learned counsel for the revisionist reiterated that it was the complainant who moved the application and not the prosecution, therefore, this itself suggests mala fide intention on the part of the complainant. 6. Replying to the arguments advanced by learned A.G.A., learned counsel for the revisionist reiterated that it was the complainant who moved the application and not the prosecution, therefore, this itself suggests mala fide intention on the part of the complainant. What was the hitch for not initiating the application on behalf of the prosecution. 7. Heard learned counsel for the revisionist as well as learned A.G.A. and perused Section 319 of Cr.P.C. and the same is reproduced herein below;- "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. Sub-section 4 says that 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. The provisions of Section 319 of Cr.P.C. do not place any bar on the powers of the Court. No restrictions have been imposed regarding the jurisdiction of the court. The case can proceed under this section if evidence collected/produced in the course of 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 the other accused. The process issued under this section cannot be quashed only on the ground that even though named in complaint, the police did not charge-sheet. Hon'ble Apex Court has laid down these observations in Suman vs. State of Rajsthan, reported in AIR 2010 5 SC 518, in order to apply Section 319 of Cr.P.C. it is essential that the need to proceed against person other than the accused person, appearing to be guilty of offence, arises only on the evidence recorded in the courses of any inquiry or trial. 9. 9. Learned counsel for the revisionist stressed the fact that the requirement are that court must arrive at satisfaction that there exists possibility that the accused so summoned is in all likelihood would be convicted/acquitted. Meaning thereby that the evidence should be so strong that court must satisfy itself that there trial is must and in the instant case a copy of the FIR has been produced at page 12. In the F.I.R. the complainant has alleged that as many as four persons encroached upon her land and started abusing her and then addressed her by cast name and then they dragged her and started beating her. Although no specific allegations have been made but allegations have been levelled against all the accused persons. As far as F.I.R. is concerned, it is not encyclopedia of events and the F.I.R. is open to analysis in the light of the statements of P.W.'s. P.W.-1 i.e. informant narrated in her statement that all the four persons came and abused her and addressed her by cast name and encroached upon her land and she has very much named all the four persons. The same is the process of law. 10. Now the only question remains that after conclusion of evidence can an application be moved. The wordings of Section 319 are very clear that during inquiry or trial, mere closing of prosecution evidence does not mean that trial is over. The statement under Section 319 Cr.P.C. is continuance of the trial and the lower court recorded satisfaction that there is ample evidence to summon these persons as mentioned in the impugned order. The argument raised by the learned counsel for the revisionist that though the court reached to the conclusion that there is ample evidence but has not expressed his satisfaction that it would warrant in conviction. 11. After hearing the parties and going through the record, I am of the opinion that the satisfaction does not mean that it should be expressed in a manner in which it ought to have been but the circumstances and the conditions are such that the court has worked out all the probabilities and mentioned the facts on which the conviction can be warranted. There is no ground to interfere in the order passed by the learned lower court. 12. The revision lacks merit is hereby dismissed at this stage only. There is no ground to interfere in the order passed by the learned lower court. 12. The revision lacks merit is hereby dismissed at this stage only. Trial court record be sent back as per rules. _____________