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2014 DIGILAW 1860 (ALL)

SIYARAM v. STATE OF U. P.

2014-06-16

VIJAY LAKSHMI

body2014
JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—Heard learned counsel for the revisionists and learned AGA for the State on the point of admission and perused the record. This criminal revision has been filed against the order dated 5.5.2014 passed by learned Additional Session Judge, (Special Judge, E.C. Act), Rampur in S.T. No. 509 of 2012, under Sections 307 read with 149 IPC, arising out of case Crime No. 1583 of 2009, P.S. Shahabad, District Rampur, State v. Virendra Fauji and others, whereby the learned Additional Sessions Judge has allowed the application filed by Additional District Government Counsel (Criminal) under Section 319 Cr.P.C. and has summoned the revisionists to face the trial. Learned counsel for the revisionists has argued that the Additional District Government Counsel (Criminal) has no locus standi to move any such application under Section 319 Cr.P.C. against any person, who has not been charge-sheeted by the police or by the investigating agency. The locus standi to move such an application is with the person aggrieved and not with the ADGC(Crl.) who cannot be termed as aggrieved party. 2. Learned counsel for the revisionists has filed the copy of provisions contained in paragraph 7.22 (3) of Chpater VII the U.P. Legal Remembrancer’s Mannual which provide that the District Government Counsel (Crl.) shall inform the development of the case arising in any sessions trial and seek guidance of U.P. Legal Remembrancer’s for the prosecution of the case. Learned counsel for the revisionists has argued that in view of the aforesaid provisions, the District Government Counsel (Criminal) is dis-entitled to file an application under Section 319 Cr.P.C. for impleading a person as an accused without having been instructed by the State Government to do so or without having sought instructions from the District Magistrate to file such application, as provided in paragraph 7.20 (7) of Chapter VII U.P. Legal Remembrancer’s Manual. 3. It has been further argued that the impugned order has been passed by the learned lower Court without recording the categorical finding that the evidence available on record is sufficient to convict the revisionists in the aforesaid session trial. 4. 3. It has been further argued that the impugned order has been passed by the learned lower Court without recording the categorical finding that the evidence available on record is sufficient to convict the revisionists in the aforesaid session trial. 4. One more ground, questioning the legality of the order is that on earlier occasion, the District Government Counsel (Crl.), Rampur has admitted the fact that the revisionists have been falsely implicated in this case, which is evident from perusal of the order dated 28.4.2011 passed by the District Magistrate Rampur, under Section 17 of Arms Act, which is annexed as Annexure-1 to the revision. Hence it has been argued that the District Government Counsel (Crl.) is not entitled to blow hot and cold at the same time regarding the same case and he is barred by the principle of estoppal. On the aforesaid grounds, it has been prayed that the impugned order passed by the learned lower Court without application of mind and without keeping in view the legal position be set aside. 5. In support of his arguments, learned counsel for the revisionists has placed reliance on the case of Mohd. Shafi v. Mohd. Rafiq and another, (2007) 14 SCC 544, in which the Hon’ble Apex Court has held that before exercising its jurisdiction under Section 319 Cr.P.C., a Court 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 or if the Court concerned may also like to consider other evidence available before it. 6. Per contra learned AGA has opposed the prayer of the revisionists by submitting that after the decision, rendered by Constitution Bench of Hon’ble Apex Court in Hardeep Singh’s case, the aforesaid case of Mohd. Shafi is no longer a good law. The revision is without any force and is liable to be dismissed at the admission stage itself. After hearing learned counsel for the revisionists and learned AGA, I am of the considered view that the instant revision is liable to be dismissed at the admission stage itself for the following reasons : 7. Shafi is no longer a good law. The revision is without any force and is liable to be dismissed at the admission stage itself. After hearing learned counsel for the revisionists and learned AGA, I am of the considered view that the instant revision is liable to be dismissed at the admission stage itself for the following reasons : 7. A Constitutional Bench consisting of Five Judges of Hon’ble Supreme Court in the case of Hardeep Singh v. State of Punjab and others, 2014 (1) JIC 539 (SC), has set at rest the entire controversy with regard to the scope and extent of Section 319 Cr.P.C. which had arisen due to variety of views having been expressed by several High Courts and also by the Supreme Court. Noticing the conflicting views between the two judgements of the Hon’ble Supreme Court in the case of Rakesh v. State of Haryana, 2001 (2) JIC 757 (SC) : AIR 2001 SC 2521 ; and Mohd. Shafi v. Mohd. Rafiq and another, 2007 (2) JIC 490 (SC), a doubt was expressed about the correctness of Mohd. Shafi’s case (supra) which led to the framing of following five questions by Constitutional Bench in Hardeep Singh case : 1. What is the stage at which power under Section 319 Cr.P.C. can be exercised? 2. Whether the word “evidence” used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? 3. Whether the word “evidence” used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial? 4. What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood convicted? 5. Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? Question No. 2 and 4 are relevant for the present case. 5. Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? Question No. 2 and 4 are relevant for the present case. Answering the aforesaid questions, the Hon’ble Constitutional Bench of Supreme Court expressed the clear view that neither cross-examination of witness is required before summoning an additional accused under Section 319 Cr.P.C., nor any categorical finding to the affect that in all likelihood the person summoned may be convicted is necessary before exercising such power. According to Hon’ble Apex Court : “What is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses. Therefore, even on the basis of Examination-in-chief, the Court can proceed against a person as long as the Court is satisfied that the evidence appearing against such person prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by cross-examination, undoubtedly in itself, is an evidence. In view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination-in-chief and Court does not need to wait till the said evidence is tested on cross-examination.......There is no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused........... Though under Section 319 (4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge.” 8. Though under Section 319 (4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge.” 8. In wake of the above cited case law of five Judges Constitutional Bench of Hon’ble Apex Court, there appears no substance in the arguments advanced by learned counsel for the revisionists that the revisionists have been summoned without cross-examination of witness and without any express view of the Court below that there is likelihood of their conviction. The second ground challenging the validity of impugned order also appears baseless. Learned counsel for the revisionists has filed a copy of Legal Remembrancer’s Manual, which is annexed as annexure-3 to the revision. 9. I have gone through these provisions. There is no such provision in it providing for that the District Government Counsel (Criminal) cannot appear or move an application without having specific written permission in a particular case by the State Government. Once the District Government Counsel is appointed by the State Government to conduct the legal proceedings on behalf of the State Government either generally or specially by the Government, he is free to move any application necessary in the interest of justice and expeditious disposal of the case in discharge of his duty. Nowhere it is provided in Legal Remembrancer’s Manual that the District Government Counsel is required to seek permission from the State Government separately every time to move any application. Considering the aforesaid facts and circumstances of the case and the latest legal position, the revision is dismissed at the admission stage itself. A copy of this order be sent to registry forthwith for onward communication to the Court concerned.