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2019 DIGILAW 312 (UTT)

Jubnesh v. State of Uttarakhand

2019-05-07

RAVINDRA MAITHANI

body2019
JUDGMENT : Ravindra Maithani, J. 1. Present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code) is directed against the order dated 16.05.2015, passed in Sessions Trial No. 280A of 2013 State Vs. Jugnesh, by the learned 1st Additional District and Sessions Judge, Roorkee, District Haridwar. By the impugned order, the petitioner has been summoned to answer the accusations under Section 363, 342, 376 (2) (i) I.P.C. This order has been passed under Section 319 of the Code. 2. Heard learned counsel for the petitioners and learned counsel for the State and perused the record. 3. The facts necessary to resolve this petition are short and they are that in a charge sheet submitted in Case Crime No. 100 of 2013, under Section 363, 342 and 376 I.P.C., the trial proceeded against one Deepak @ Deepu and proceedings of Sessions Trial No. 280 of 2013, State Vs. Deepak @ Deepu were instituted in the court of learned 1st Additional District and Sessions Judge, Roorkee, District Haridwar (hereinafter referred to as "the Sessions Trial"). In the sessions trial, an application under Section 319 of the Code was filed, which was rejected vide order dated 27.03.2014. This order dated 27.03.2014 was challenged before this Court in Criminal Revision No. 83 of 2014, Smt. Maya Vs. State of Uttarakhand and another (for short "Criminal Revision"). Now, here onwards things take different turn. 4. There are two dates, which are important they are as hereunder:- 1. Sessions trial was decided on 05.07.2014 and in that case, the accused Deepak @ Deepu was acquitted. What is interesting to note is that the Criminal Revision, which was preferred against the order dated 27.03.2014 passed in sessions trial, was still pending on that date. 2. Criminal Revision was allowed by this Court vide order dated 09.03.2015. It was, inter-alia, held as hereunder: "5. Non-summoning of respondent no. 2-Jugnesh, in the considered opinion of this Court, is per se bad in the eyes of law. The impugned order warrants interference, inasmuch as, the name of respondent no. 2 was already there in the FIR and, moreover, PW1 to PW4 have already implicated her in the commission of alleged crime. The said witnesses have already been cross-examined before the trial court. This Court cannot act as a trial court and cannot decide as to whether the respondent no. 2 was already there in the FIR and, moreover, PW1 to PW4 have already implicated her in the commission of alleged crime. The said witnesses have already been cross-examined before the trial court. This Court cannot act as a trial court and cannot decide as to whether the respondent no. 2 has committed the said crime or not? The same is the domain of the trial court, but suffice will it be to say at this stage that there is a prima facie case for summoning the respondent no. 2 in exercise of jurisdiction under Section 319 Cr.P.C. 6. The Criminal Revision is, therefore, allowed. The court below is requested to pass a suitable order for summoning the respondent no. 2 in the light of the latest decision rendered by Hon'ble Apex Court in Hardeep Singh's case (supra) and the aforesaid discussion made by this Court in the body of the judgment." 5. Now, it is a fact that the sessions trial, in which application under Section 319 of the Code was filed, was not in existence when criminal revision was allowed by the Court on 09.03.2015. When this order dated 09.03.2015, passed in criminal revision was placed before the court below on 16.05.2015, the impugned order was passed. It is also to be appreciated that the court below did not pass the order in a routine manner but it was considered that the case, in which, application under Section 319 of the Code was filed, had already been decided. Learned court below held that in such a situation, the provisions of Section 319(4) of the Code comes into play and accordingly, summoned the petitioner. 6. Before any discussion is made further, it would be expedient to reproduce Section 319 of the Code, which is as hereunder:- "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. 2. Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. 3. 2. Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. 3. Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. 4. Where the Court proceeds against any person under sub- section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, and the 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." 7. Learned counsel for the petitioner would urge that since the sessions trial was not pending, therefore, the petitioner cannot be summoned to face the trial under Section 319 of the Code. Thrust of the argument of learned counsel for the petitioner is that the case should be pending before exercise of the powers under Section 319 of the Code. In support of her contention, learned counsel has placed reliance upon the principles of law, as laid down in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 , Rakesh Kanojia Vs. State Government of NCT of Delhi and another, IRL (2012) Delhi 798 and Samarth Ram Vs. State of Rajasthan and others, 2002 SCC OnLine Raj 653. In fact, in the case of Hardeep Singh (supra), following five questions have been answered by the Hon'ble Supreme Court:- "6.1. (i) What is the state at which power under Section 319 CrPC can be exercised? 6.2. (ii) Whether the word "evidence" used in Section 319(1) CrPC 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? 6.3. (iii) Whether the word "evidence" used in Section 319(1) CrPC 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? 6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? 6.3. (iii) Whether the word "evidence" used in Section 319(1) CrPC 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? 6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? 6.5. (v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?" 8. While discussing on question at 6.1, in the case of Hardeep Singh (supra), Hon'ble Court observed that:- "47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc……………………………….." (emphasis supplied) 9. Hon'ble Supreme Court answered the question at 6.1 & 6.3 as hereunder: "117.1. ……………the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation, Such cognizance can be taken under Section 193 CrPC and the Sessions Judge need not wait till "evidence" under Section 319 CrPC becomes available for summoning an additional accused. 117.2. Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet. 117.3. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet. 117.3. In view of the above position the word "evidence" in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial" 10. In the case of Rakesh Kanojia (supra), the Court has held as hereunder:- "8. Further Section 353 Cr.P.C. states that after the arguments are heard the trial comes to an end and pronouncement of judgment is a post culmination trial procedure. Though the application was filed prior to the conclusion of the trial, there is no doubt that the impugned order was passed after the pronouncement of the judgment of conviction of the other family members of the Petitioner though on the same day. In any case the judgment having been pronounced, the trial had come to an end and the trial Court had become functus officio. The trial Court could not have passed order on the application under Section 319 Cr.P.C. after pronouncing the judgment." 11. In the case of Samarth Ram (supra), the Hon'ble Court, inter alia, held that when the trial has already come to an end, the provisions of Section 319 of the Code cannot be invoked. 12. In the present case, learned State counsel also concedes that the petitioner could not be proceeded under Section 319 of the Code. 13. Can the petitioner be tried separately that is not an issue before this Court? What is in issue before this Court is the validity of the impugned order. 14. Under Section 319 of the Code, the Court may summon the person to be tried alongwith existing accused. If the trial itself has come to an end and judgment pronounced, provision of Section 319 of the Code can not be invoked. 15. In the impugned order, a reference has been made to sub-section (4) of 319 of the Code. Sub-section (4) of 319 of the Code does not envisage for a separate trial, what it provides for is that once a person is summoned under Section 319 of the Code, the proceeding in respect of such person shall be commenced afresh and witnesses reheard. Sub-section (4) of 319 of the Code does not envisage for a separate trial, what it provides for is that once a person is summoned under Section 319 of the Code, the proceeding in respect of such person shall be commenced afresh and witnesses reheard. It only means that in an existing trial, such person will have to be taken through all the procedures afresh and that is the only option available. For example, he would be supplied copies of the statement of the witnesses, charges would be framed or accusation would be explained to him and definitely he would be given opportunity to cross-examine the witnesses, who had already been examined. This is what is the purport of the sub-Section (4) of 319 of the Code. Sub-Section (4) of 319 of the Code does not authorize for a separate trial of a person summoned under Section 319 of the Code. 16. In the instant case, sessions trial, in which, the petitioner was required to be summoned under Section 319 of the Code had already been concluded, on the date, when finally, in a Criminal Revision, this Court allowed the application under Section 319 of the Code. Had this fact been brought before this Court in Criminal Revision, perhaps the things would have been different. But it was not so done and now since sessions trial had already been concluded, this Court is of the view that separately, the petitioner cannot be put to trial, after summoning her under Section 319 of the Code. 17. Accordingly, this Court is of the view that the petitioner ought not to have been summoned under Section 319 of the Code, in view of the fact that sessions trial had already been concluded. Learned court below committed an error in summoning the petitioner, therefore, impugned order is liable to be set aside and the petition allowed. 18. The petition under Section 482 of the Code is allowed. Impugned order dated 16.05.2015, passed in Sessions Trial No. 280A of 2013 State Vs. Jugnesh, by the learned 1st Additional District and Sessions Judge, Roorkee, District Haridwar is set aside.