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2015 DIGILAW 1012 (GAU)

Seba Singh S/o Lt. Bir Singh v. State Of Assam

2015-08-12

PARAN KUMAR PHUKAN

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JUDGMENT AND ORDER Paran Kumar Phukan, J. The order dated 05.02.2014 passed by the learned Additional Sessions Judge, Cachar, Silchar in connection with Sessions Case No. 125/2012, issuing summons to the petitioner to appear before the Court and to face trial in connection with the above mentioned case along with the co-accused as provided under Section 319 Cr.P.C. is the subject matter of challenge in this revision. 2. The factual backgrounds of the case in brief are that on the intervening night of 01.05.2007, the petitioner Seba Singh, who at the relevant time was in-Charge of Bihara Police Outpost, accompanied by some other police personnel of the said police station raided the house of the informant, armed with fire arms. Seeing the police personnel the son of the informant Hasmat Ali tried to run away but the police personnel also chased him. One of the armed constable, namely, Tapan Hazarika opened fire which resulted in the death of Hasmat Ali. The injured Hasmat Ali was taken to the police station in the police vehicle without informing his family members and only on the next day, they came to know about his death. Postmortem was conducted on the dead body which confirmed death of the deceased due to bullet injuries. 3. Written complaint regarding the incident was lodged by Imam Uddin before the learned Chief Judicial Magistrate, Cachar, Silchar which was forwarded to police for investigation. Accordingly, Katigorah P.S. Case No. 221/2007 was registered under Sections 302/34 of the IPC and after completion of investigation Charge-Sheet was submitted only against the accused Tapan Hazarika. The petitioner Seba Singh who led the police party on that night and although his name has been mentioned in the FIR was not charge-sheeted and his name shown in Column-3 of the Charge-Sheet as not sent up for trial. 4. During trial the prosecution examined as many as 10 witnesses before the Sessions Court. At that stage of the case, a point was raised regarding involvement of the petitioner in the commission of the crime. The learned Additional Sessions Judge, Cachar, Silchar upon hearing both the parties and scrutinising the evidence adduced by the witnesses passed the order directing the petitioner to appear before the Court to face the trial along with the co-accused in exercise of the power under Section 319 Cr.P.C. Hence, this revision. 5. The learned Additional Sessions Judge, Cachar, Silchar upon hearing both the parties and scrutinising the evidence adduced by the witnesses passed the order directing the petitioner to appear before the Court to face the trial along with the co-accused in exercise of the power under Section 319 Cr.P.C. Hence, this revision. 5. The impugned order of the learned Additional Sessions Judge reveals that he has decided to try the petitioner along with the co-accused mainly relying on the evidence of PW1 Rakiba Khatun and PW6 Shek Mohammad Sekhar. 6. Learned advocate appearing for the petitioner strenuously submitted that the petitioner was not involved in the commission of the crime and the learned Court below has committed grave illegality by issuing summons to him to face the trial along with the co-accused relying on the evidence of PW1 and PW6. Inviting my attention to the evidence of these two witnesses, it is submitted that there is nothing in their evidence to show the complicity of the petitioner in the commission of the crime. 7. Controverting the submissions, the learned Additional Public Prosecutor, Assam submitted that the petitioner was leading the police personnel to conduct the raid on that day and the evidence of PW1 and PW6 reveals that it was he who ordered to open fire on the fleeing deceased Hasmat Ali. He cannot be absolved from commission of the crime. It is also contended that Section 319 Cr.P.C. empowers the Court to issue summons to any person if it appears from the evidence that he played some role in the commission of the crime. 8. In the backdrop of the aforesaid contention, the only point for consideration before this Court is whether the learned Court below was justified in issuing summons to the petitioner on the basis of the evidence of PW1 and PW6. 9. Before adverting to the submission of the learned counsel appearing for both the parties, it would be appropriate to have a glance at Section 319 Cr.P.C. which empowers the Court to take cognizance and add "any person" not being accused before it and try him along with the accused sent up for trial. This power cannot be exercised in a routine manner by the Courts and only in extra ordinary circumstances the power is to be exercised. This power cannot be exercised in a routine manner by the Courts and only in extra ordinary circumstances the power is to be exercised. Although discretion is given to the Court to exercise the power but the discretion must be judicially exercised and only if compelling reasons exist and to ensure that all persons involved in the commission of a crime are brought to book. When there is no evidence against the person sought to be summoned Section 319 Cr.P.C. should not be invoked. 10. In the case in hand, it is an admitted fact that the petitioner was at the relevant time in-charge of Bihara Police Outpost and he was leading the police party to conduct raid in the house of the deceased. In the complaint filed by Imam Uddin, father of the deceased before the learned Chief Judicial Magistrate, Cachar, Silchar, and which was forwarded to police for investigation, the name of the petitioner has been mentioned as an accused. 11. The FIR version of the case is that when the deceased was trying to flee away, the police personnel chased him including the petitioner and he ordered to open fire and as per his order one of the constable opened fire and when Hasmat Ali fell down, he was immediately taken in the police vehicle without informing his family members and on the next morning only, they came to know about his death. Police registered the case but only submitted Charge-sheet against constable Tapan Hazarika and the name of Seba Singh, the present petitioner has been shown in Column-3 of the Charge-Sheet and he was not sent up for trial. 12. The FIR version is to some extent corroborated by the evidence of PW1 and her evidence also reveals that the police officer wearing turban asked the others not to leave her husband and accordingly they chased him and shot at him which resulted in his death. Obviously she did not know the police personnel and her evidence is that later on she came to know that Tapan Hazarika fired the shot at the instructions of his superior Seba Singh. 13. Obviously she did not know the police personnel and her evidence is that later on she came to know that Tapan Hazarika fired the shot at the instructions of his superior Seba Singh. 13. Learned counsel appearing for the petitioner submitted that the evidence of PW1 is hearsay evidence and is not admissible but it is too early to say that her evidence is hearsay evidence, more particularly, when she disclosed that the officer wearing turban asked the other police personnel not to leave her husband. PW6 admittedly was not an eye witness but on the next morning having come to know about the occurrence from the son of the deceased, he came to the police station and thereafter to Silchar Court to file the complaint. His evidence reveals that the petitioner offered him Rs. 2,00,000/- for withdrawal of the case. This part of his evidence has not been controverted in cross-examination. 14. The Trial Court at the time of issuing summons to the additional accused under Section 319 Cr.P.C. is not required to go into the probative value of the evidence adduced by the prosecution witnesses and at that stage, it is not required to be proved to the hilt that the petitioner committed the crime. The only requirement of the Section is whether materials on record justifies trial of the accused along with the co-accused of the case. Section 319(4)(1)(b) specifically makes it clear that it will be presumed that the newly added person had been an accused when the Court took cognizance of the offence upon which the enquiry or trial commenced. 15. In the instant case, the learned Trial Court on consideration of the totality of the evidence particularly the evidence of PW1 and PW6 took cognizance against the petitioner. To satisfy myself, I have also gone through the evidence and in my considered view, the complicity of the accused in the commission of the crime cannot be ruled out. Obviously, there are materials to frame charge against him. He being the leader of the group appears to have ordered the constable to open fire at the accused. 16. Having heard the learned counsel appearing for both the parties and having gone through the evidence on record and the impugned order, I do not find any infirmity which calls for revisional interference. He being the leader of the group appears to have ordered the constable to open fire at the accused. 16. Having heard the learned counsel appearing for both the parties and having gone through the evidence on record and the impugned order, I do not find any infirmity which calls for revisional interference. In my view the, Trial Court rightly summoned the accused under Section 319 Cr.P.C. 17. Consequently, the revision filed against the order is liable to be dismissed which I accordingly do. The accused petitioner is directed to appear before the Trial Court within 1 (one) month from today to face the trial. Send down the records with copy of the judgment for information and necessary action.