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2017 DIGILAW 98 (PAT)

Karu Pandit v. State of Bihar

2017-01-23

CHAKRADHARI SHARAN SINGH

body2017
JUDGMENT : Chakradhari Sharan Singh, J. (Oral) The Constitution Bench decision of Supreme Court in case of Hardeep Singh v. State of Punjab, reported in (2014) 3 SCC 92 , lays down exhaustively the object and scope of Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C."). It also lays down the stage and circumstance for exercise of power under the said provision, inter alia. 2. It clearly lays down that if a person is not named in the First Information Report or a person though named in the First Information Report but has not been charge-sheeted or a person who has been discharged, can be summoned under Section 319 of the Cr.P.C. provided that from the evidence it appears that such person can be tried along with the persons already facing trial. 3. Secondly, Posing a question to itself as to what should be the nature of satisfaction and whether power under Section 319 (1) of the Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will, in all likelihood, be convicted. The Supreme Court has set out, in Hardeep Singh (supra), a distinction between degree of satisfaction required for summoning the original accused and a subsequent accused after commencement of trial, on the basis of evidence led at the trial. For the purpose of summoning a person, who is not an accused, under Section 319 of the Cr.P.C., at the trial, as an accused, the test that is required to be applied is one, which is "more" than prima facie case, as exercised at the time of framing of charge, but sort of satisfaction to an extent that the evidence, if went un-rebutted, would lead to conviction of the person so summoned, the Supreme Court has said, answering the said questions. 4. These are the two points involved in the present case, which stand directly answered in case of Hardeep Singh (supra). 5. The present criminal revision application, under Section 397 read with Section 401 of the Cr.P.C., has been preferred against an order, dated 26.06.2014, passed by learned Sessions Judge, Nawada, in Sessions Trial No. 162 of 2012, arising out of Nawadah P.S. Case No. 367 of 2011. 5. The present criminal revision application, under Section 397 read with Section 401 of the Cr.P.C., has been preferred against an order, dated 26.06.2014, passed by learned Sessions Judge, Nawada, in Sessions Trial No. 162 of 2012, arising out of Nawadah P.S. Case No. 367 of 2011. The petitioners were named accused in said Nawadah P.S. Case No. 367 of 2011, registered for the offence punishable under Section 304(B) read with Section 34 of the Indian Penal Code. 6. The police, upon completion of investigation, submitted charge-sheet against the husband of the deceased, namely, Ram Pravesh Pandit, only and not against these petitioners, who are his family members. The case was, thereafter, committed to the Court of Sessions for trial. The prosecution filed an application, under Section 319 of the Cr.P.C., in course of trial, for proceeding against these petitioners also on the ground that evidence, adduced at the trial by the prosecution witnesses, suggested that these petitioners were also involved in commission of the offence. 7. Petitioner nos. 1, 2 and 3 are brothers of the accused, namely, Ram Pravesh Pandit, whereas, petitioner No. 4 is the wife of petitioner no. 1. 8. The said application, preferred under Section 319 of the Cr.P.C., has been allowed by the learned Sessions Judge, Nawadah by an order, dated 26.06.2014, which is being assailed in the present criminal revision application. 9. Learned counsel appearing on behalf of the petitioners, assailing the impugned order, has made two fold submissions. He, on placing reliance upon a Supreme Court decision in case of Kishori Singh and Ors. v. State of Bihar and Anr. ( AIR 2000 SC 3725 ), has submitted that since the petitioners were not charge-sheeted by the police, learned trial Court ought not to have exercised power under Section 319 of the Cr.P.C. He has placed particular reliance on paragraphs 3 and 9 of the said decision. It has secondly been submitted that power to summon an accused, under Section 319 of the Cr.P.C., is an extra ordinary power conferred on the trial Court, which should be exercised with due care and caution, only if compelling reasons exist for proceeding against such persons, against whom no action has been taken and are not accused. It has secondly been submitted that power to summon an accused, under Section 319 of the Cr.P.C., is an extra ordinary power conferred on the trial Court, which should be exercised with due care and caution, only if compelling reasons exist for proceeding against such persons, against whom no action has been taken and are not accused. In support of this submission, he has relied on the decision in case of Krishnappa v. State of Karnataka, reported in (2004) 7 SCC 792 , and in case of Babubhai Bhimabhai Bokhiria & Anr. v. State of Gujarat & Ors., reported in (2013) 9 SCC 500 . 10. Learned counsel appearing on behalf of the informant, on the other hand, has justified passing of the order, placing reliance on another decision of Two-Judges Bench of the Supreme Court in case of Suman v. State of Rajasthan & Anr., reported in (2010) 1 SCC 250 . 11. By way of supplementary affidavit, filed on behalf of the petitioners, evidence of prosecution witnesses adduced at the trial have been brought on record in order to submit that it was not a fit case for exercise of power under Section 319 of the Cr.P.C., summoning the petitioners. According to him, there is no clear, substantial and specific evidence adduced against these petitioners, at the said trial. 12. In view of the stand taken on behalf of the petitioners that even if power to proceed against a person, who is not an accused, is available under Section 319 of the Cr.P.C., such power ought not to have been exercised in the present facts and circumstances of the case, considering the nature of evidence adduced at the trial, I have considered it fit to refer to relevant portion of the deposition of the prosecution witnesses. 13. P.W.-1, the mother of the deceased, in paragraph 3 of her deposition, has said that these petitioners and the husband of the deceased used to torture the deceased. P.W.-2, who is also related to the deceased, has deposed that these petitioners were also responsible for torturing the deceased. P.W.-3 has been declared to be hostile at the instance of the prosecution. P.W.-4, the sister of the deceased, deposed that these petitioners and the accused, Ram Pravesh Pandit, used to demand dowry. P.W.-2, who is also related to the deceased, has deposed that these petitioners were also responsible for torturing the deceased. P.W.-3 has been declared to be hostile at the instance of the prosecution. P.W.-4, the sister of the deceased, deposed that these petitioners and the accused, Ram Pravesh Pandit, used to demand dowry. The father of the deceased, namely, Kishun Pandit, who deposed as P.W.-5, has also said that these petitioners used to demand dowry. There is no evidence in deposition of P.W.-5, the informant, that at any stage these petitioners had ever tortured the deceased. 14. Upon perusal of the evidence of the witnesses, I find there to be one common factor. There is no reference to any date or period of time when the demand of dowry was made. There is no evidence as to when and how these petitioners had tortured the deceased. In that background, it has to be seen whether the court below has properly exercised the power under Section 319 of the Cr.P.C. or not. 15. So far as the plea taken on behalf of the petitioners with reference to Supreme Court decision in case of Kishori Singh (supra) that since the petitioners were not chargesheeted by the police and, therefore, they cannot be treated to be accused and, therefore, no power under Section 319 of the Cr.P.C. ought to have been exercised, cannot be accepted. The power under Section 319 of the Cr.P.C. is to be exercised by the trial Court only if it decides to proceed against a person, who is not an accused. The Supreme Court decision, in case of Kishori Singh (supra) was delivered in different facts and circumstances when trial had yet not commenced. Paragraph 9 of the said decision, on which heavy reliance has been placed, reads thus:- "9. After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgment and on examining the order dated 10.6.1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the F.I.R. as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 of Cr.P.C." 16. However, it has been clearly laid down in paragraph 10 of the said decision, in case of Kishori Singh (supra), that so far as those persons against whom charge- sheet has not been filed, they can be arrayed as accused persons in exercise of power under Section 319 of the Cr.P.C., when some evidence or materials are brought on record in course of trial. Additionally, the Supreme Court said, such persons could also be arrayed as accused only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the material, comes to the conclusion that sufficient materials might exist against them, even though the police might not have filed charge-sheet. 17. Learned counsel appearing on behalf of the informant has placed reliance on Supreme Court decision in case of Suman (supra), paragraph 15 of which reads thus, and lays down the law succinctly in the following words:- "15. In view of the settled legal portion as above, we hold that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319, Cr.P.C. if from the evidence collected/produced in the course of any 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 other accused. As a corollary, we hold that the process issued against the appellant under Section 319, Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her." 18. As noticed at the very outset, the dispute, which is being raised in this regard, finds straight answer in the decision of Hardeep Singh (supra), where the Constitution Bench of Supreme Court has held in paragraph 116 as follows:- "116. Thus, it is evident that power under Section 319 Code of Criminal Procedure can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharge. Thus, it is evident that power under Section 319 Code of Criminal Procedure can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharge. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Code of Criminal Procedure without taking recourse to provisions of Section 300(5) read with Section 398 CrPC." 19. Both Supreme Court decisions, in the cases of Kishri Singh (supra) and Suman (supra) have been noticed and considered in the case of Hardeep Singh (supra). Another Constitution Bench decision in case of Dharam Pal v. State of Haryana, reported in (2014) 3 SCC 306 , wherein, the Court has held that a person whose name does not appear even in the First Information Report or in the charge-sheet or whose name appears in the First Information Report and not in main chart of charge-sheet, but in Column "C-2" and has not been summoned as an accused in exercise of powers under Section 193 of the Cr.P.C., can still be summoned by the Court, provided that the Court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. While summing up, the Supreme Court, in case of Hardeep Singh (supra), has held in paragraph 117.6 as follows:- "117.6 A person not named in the FIR or a person though named in the Fir but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.PC has to be complied with before he can be summoned afresh." 20. Having said thus, the contention that since petitioners were not chargesheeted by the police, though they were named in the First Information Report and, therefore, they ought not to have been summoned as accused in exercise of power under Section 319 of the Cr.P.C. deserves to be rejected as meritless. 21. Having said thus, the contention that since petitioners were not chargesheeted by the police, though they were named in the First Information Report and, therefore, they ought not to have been summoned as accused in exercise of power under Section 319 of the Cr.P.C. deserves to be rejected as meritless. 21. The question which, however, arises now is as to whether in the facts and circumstances of the present case and in view of the nature of evidence adduced at the trial referred to above, was it proper and valid for the court below to have exercised power under Section 319 of the Cr.P.C.? It is clear from the language of Section 319 of the Cr.P.C. that power of proceeding against a person, who is not an accused under Section 319 of the Cr.P.C., is discretionary and it should be exercised in order to achieve criminal justice. While exercising power under Section 319 of the Cr.P.C., all relevant factors available on the record and nature of evidence, on the basis of which the power is to be exercised, have to be taken. The power is to be exercised only in compelling circumstance and it cannot be exercised merely on some material coming against such person in course of trial. In the present case, I have noticed on perusal of evidence adduced at the trial that there is no concrete and specific evidence against these petitioners of making any demand of dowry or torturing the deceased, therefor, in any manner whatsoever. There is nothing concrete in the evidence, showing complicity of these petitioners in commission of the offence. 22. Learned counsel for the petitioners, in my view, has rightly placed reliance on the Supreme Court decision in case of Krishnappa (supra), paragraph 9 of which reads thus:- "9. In Michael Machado and Anr. v. Central Bureau of Investigation and Anr., (2000)3 SCC 262 , construing the words "the Court may proceed against person" in Section 319, Cr.P.C., this Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court, while examining an application under Section 319, Cr.P.C., has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In nutshell, it means that for exercise of discretion under Section 319, Cr.P.C., all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused." 23. Almost similar question had arisen in case of Babubhai Bhimabhai Bokhiria (supra), where the Supreme Court held that Section 319 of the Cr.P.C. confers power on the trial Court to find out whether the person, who ought to be added as an accused, has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at, on the basis of evidence so led during trial. 24. The Supreme Court has, thus, repeatedly held that the power under Section 319 of the Cr.P.C. is to be exercised with utmost circumspection only in compelling circumstances when the evidence, coming at the trial, suggest involvement of persons, other than the accused, in commission of the offence. On this point, in the case of Hardeep Singh (supra), the Constitution Bench of the Supreme Court has laid down the law, in paragraphs 98 and 99, in the following words:- "98. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 99. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 99. Thus, we hold that though only a prima facie cases is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. ................" (Emphasis is added) 25. Applying the principle of law as laid down by the Supreme Court in various decisions, as noted above, to the nature of evidence adduced at the trial, on the basis of which learned court below has exercised power, under Section 319 of the Cr.P.C., by the impugned order, I am of the considered view that the order cannot be sustained. The evidence of the witnesses are totally vague while deposing against these petitioners on the point of demand of dowry and torture. 26. This application, therefore, succeeds and the order, dated 26.06.2014, passed by learned Sessions Judge, Nawada, in Sessions Trial No. 162 of 2012, arising out of Nawadah P.S. Case No. 367 of 2011, is accordingly set-aside. 27. This criminal revision application is, accordingly, allowed.