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Allahabad High Court · body

2017 DIGILAW 1006 (ALL)

Chandra Prakash v. State of U. P.

2017-04-13

ANIL KUMAR SRIVASTAVA-II

body2017
JUDGMENT Anil Kumar Srivastava-II, J. 1. Heard learned counsel for the revisionist learned A.G.A. and perused the record. 2. Revision has been preferred against the order passed by the learned Special/Additional Sessions Judge, Lakhimpur Kheri dated 12.5.2006 in S.T. No. 702/98, whereby the revisionists have been summoned under section 319 Cr.P.C. 3. Learned counsel for the revisionist submits that the revisionists are the practicing lawyers who were doing ‘pairavi’ of Ram Singh. On this ground they have been falsely implicated in the case. It is further submitted that the first information report was lodged against the eight persons wherein the role assigned to the revisionist was of exhortation. Pending investigation revisionists were exonerated and charge sheet was not filed against them. Thereafter, when the statement of PW-1 Nagendra Kumar and PW-2 Laxman was recorded thereafter, the learned trial court has summoned the revisionist under section 319 Cr.P.C. It is submitted that the revisionists have no concern with the case, rather since they were doing ‘pairavi’ as a lawyer on behalf of Ram Singh co-accused, hence, they have been falsely implicated with the object that no-one could do pairavi on behalf of the accused. It is further submitted that the learned trial court has erred in summoning the revisionist under section 319 Cr.P.C. 4. Per contra, learned A.G.A. supported the impugned order and submitted that there was ample evidence on record to summon the revisionist under section 319 Cr.P.C. 5. I have gone through the record. 6. In Hardeep Singh v. State of Punjab 2014 (3) SCC 92 ; Constitution Bench of the Hon’ble Apex Court has held that: “Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence. Evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence. Evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence. (Paras 89, 90 and 86) All that is required for the exercise of the power under Section 319 Cr.P.C. is that, it must appear to the court that some other person who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief to do so, it can exercise the power under Section 319 Cr.P.C. and can proceed against such other person(s). Section 319 also uses the words “such person could be tried” instead of should be tried. Hence, what is required is not to have a mini-trial at the Section 319 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, such a mini-trial 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 Section 319 (4) 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 and examine defence witnesses and advance his arguments upon the same. Moreover, there does not seem to be any logic behind waiting till the cross-examination of the witness is over for exercising power under Section 319 Cr.P.C. At the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Moreover, there does not seem to be any logic behind waiting till the cross-examination of the witness is over for exercising power under Section 319 Cr.P.C. At the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination of the witness concerned is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as accused as it would only help the prosecution in completing the chain of evidence, unless the witness(es) are obliterating the role of persons already facing trial. More so, Section 299 Cr.P.C. enables the court to record evidence in the absence of the accused in the circumstances mentioned therein. Thus power under Section 319 Cr.P.C. can also be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination, for it is the satisfaction of the court which can be gathered from the recorded by the court, in respect of complicity of some other persons(s), not facing the trial in the offence. (Para 92 and 117.4) The circumstances that lead to the inference being drawn up by the court for summoning a person under Section 319 arise out of the availability of the facts and material that come up before the court. The material should disclose complicity of the person in the commission of the offence which has to be the material that appears from the evidence during course of any inquiry into or trial of offence. (Paras 58, 78 and 77). The inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. The unveiling of facts other than the material collected during investigation before the Magistrate or court before trial actually commences, is part of the process of inquiry by the court. An inquiry can be conducted by the Magistrate or the court at any stage during the proceedings before the court. The unveiling of facts other than the material collected during investigation before the Magistrate or court before trial actually commences, is part of the process of inquiry by the court. An inquiry can be conducted by the Magistrate or the court at any stage during the proceedings before the court. This power is preserved with the court and has to be read and understood accordingly. The outcome of any such exercise should not be an impediment in the speedy trial of the case. Though the facts so received in an inquiry by the Magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 Cr.P.C. it is information of complicity. Such material therefore, can be used even though not an evidence is stricto sensu, but information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers under section 319 Cr.P.C. (Paras 79 to 82). It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to the court while making an inquiry into or trying an offence, that the court can utilise or take into consideration under Section 319 Cr.P.C. for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. Apart from evidence in the strict legal sense recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word “evidence” as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court. (Paras 83 and 85). The word “evidence” therefore, has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it even before trial, under Section 319 Cr.P.C. (84).” 7. Revisionist Chandra Prakash and Shiv Prakash are named in the first information report along with other co-accused wherein specific role of exhortation has been assigned to the revisionist whereby the other accused have committed murder of Surendra Kumar and Kamlesh. After investigation revisionists were not charge sheeted but before the trial court PW-1 Nagendra Kumar has specifically stated that the revisionists were not carrying any arm but they exhorted the other co-accused. On their exhortation deceased were attacked by the co-accused. Same statement has been given by PW-2 Laxman. Although, both the witnesses have admitted that the revisionists are the practicing lawyers who were doing pairavi on behalf of Ram Singh. Specific case has been levelled against them which can be covered under section 149 IPC. This is the material available on record disclosing the complicity of the accused revisionist in commission of the offence. There was sufficient material on record for the trial court to summon the accused under section 319 Cr.P.C. 8. I do not find any material illegality or irregularity in the impugned order. Revision is devoid of any merit and is accordingly dismissed.