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2023 DIGILAW 617 (JHR)

Kripa Singh v. State of Jharkhand

2023-05-03

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Md. Razaullah Ansari, learned counsel for the petitioners, Mr. Vijoy Kumar Sinha, learned counsel for the State and Mr. Anurag Kumar, learned counsel for opposite party no.2. 2. This petition has been filed for quashing the order dated 17.06.2014, whereby, the petitioner has been summoned as additional accused under Section 319 Cr.P.C. for facing trial in connection with Sessions Trial Case No.324 of 2009 arising out of Rehala P.S. Case No.31 of 2008, corresponding to G.R. Case No. 937 of 2008, pending in the court of the learned 1st Additional Sessions Judge, Palamau at Daltonganj. 3. On the Fardbayan of Anand Kumar Dubey (P.W.3), the minor son of the deceased, the FIR was lodged alleging therein that on 04.06.2008 at about 07:30 p.m., he had gone to the hotel premises of his father. His father had gone out to purchase some articles for the hotel. The informant heard the sound of firing of two gun shots. He ran to his shop and saw that his motorcycle and another motorcycle was burning. Girdhar Singh, Kripa Singh, Mrityunjay Singh, Pappu Singh, Tutu Singh and Sheru Singh boarded the father of the informant in Commander Jeep and went towards Garhwa. After sometime, uncle of the informant Ruchan Pandey (P.W.8) came there and the informant along with Ruchan Pandey went towards Garhwa Hospital. On reaching Garhwa Hospital, he found the aforesaid persons along with 3-4 others were assaulting his father Shyamdeo Dubey. As a result of which he sustained injuries due to which his father died. 4. Learned counsel for the petitioners submits that final form has been submitted by the I.O. only against two accused namely Tutu Singh and Pappu Singh and the police during investigation found no sufficient evidence against accused Kripa Singh, Mrityunjay Singh, Girdhar Singh and Sheru Singh. They were found innocent after investigation as such their case was not sent up for trial. He further submits that the learned Magistrate on receipt of charge-sheet, took cognizance of the offence and sent the case of the aforesaid two accused only for trial before the Court of Sessions in Sessions Trial Case No.324 of 2009. The evidence in the case started on 23.04.2010 and the examination of the witnesses of the Prosecution Witnesses was conducted on 23.01.2012 and in all 9 witnesses were examined. The evidence in the case started on 23.04.2010 and the examination of the witnesses of the Prosecution Witnesses was conducted on 23.01.2012 and in all 9 witnesses were examined. He submits that on 30.07.2013, an application under Section 319 Cr.P.C. was filed in the Court to summon the petitioners as additional accused. The learned Sessions Judge found the statements of P.W.1 to 5 to be consistent and allowed the prayer of the prosecution, thereby summoning the petitioners to face the trial along with others. In this background, he submits that the learned court has not appreciated this aspect of the matter that earlier no petition was filed under Section 319 Cr.P.C. and later on the petition under Section 319 Cr.P.C. was filed, which was allowed by the learned Sessions Judge, which is against the mandate of law and the impugned order is fit to be dismissed on account of delay itself. He further submits that Section 319 Cr.P.C. can be applied only in reasonable cases and if cogent case is made out. He also submits that at the time of framing of charge, the learned court has not found sufficient material to call upon the petitioners. He submits that the finding of the learned trial court with regard to evidence of P.W.1 to 5 are not in accordance with law. On these grounds, he submits that summoning the petitioners under Section 319 Cr.P.C. is bad in law. 5. On the other hand, learned counsel for opposite party no.2 submits that the learned court has passed the reasoned order and he has considered that P.W.1 to 5 have taken the name of these petitioners and that is why, they have been called upon to face the trial. 6. Learned counsel for the State submits that sufficient reason and evidence have come before the learned trial court and that is why, the learned court has exercised its power under Section 319 Cr.P.C. 7. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and finds that admittedly the charge-sheet was submitted against two accused persons namely Tutu Singh and Pappu Singh. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and finds that admittedly the charge-sheet was submitted against two accused persons namely Tutu Singh and Pappu Singh. The learned court has taken note of the fact that P.W.1 Nand Kumar @ Nanhku Dixit in his deposition dated 23.04.2010 in para 1 of his examination-in-chief has deposed that prior to two years at about 09:00 p.m., he had gone at Garhwa Government hospital and saw that Pappu Singh, Tutu Singh, Sheru Singh, Girdhar Singh were assaulting Shyamdeo Dubey with lathi. He further deposed in para 2 that due to fear he fled away and in the morning came to know that Shyamdeo Dubey died. P.W.2- Krishna Dixit in his deposition dated 17.5.2010 in para 1 of his examination-in-chief has stated that at about 06:45 p.m. prior to 1 ¾ years he was going towards his house by Commander jeep from Station and when he reached near the shop of Shyamdeo Dubey, Girdhar Singh stopped the vehicle and asked to go Garhwa Sadar hospital as Gajendra Singh has sustained bullet injury. He was boarded in the jeep. He further stated that Tutu Singh, Pappu Singh, Mrityunjay Singh, Kripa Singh an Sheru Singh also boarded in the vehicle. He further stated in para 2 that on way to Garhwa, Shyamdeo Dubey was also assaulted and boarded in the vehicle by the above persons. He further deposed in para 4 that this witness saw that all the persons were assaulting Shyamdeo Dubey with lathi and rod which resulted in death of Shyamdeo Dubey. P.W. 3- Anand Kumar Dubey-informant of this case and minor son of the deceased on 17.07.2010 in his deposition in para 1, has stated that on 04.08.2008 at about 07:30 p.m. when he came at the shop, he heard the sound of firing. When he reached there he saw that some persons were assaulting father of this witness and were forcibly boarding him in the vehicle. He has disclosed the name of Girdhar Singh, Pappu Singh, Tutu Singh, Mrityunjay Singh, Sheru Singh and Kripa Singh. He further deposed in para 2 that he followed the jeep by motorcycle of his maternal uncle and reached Garhwa hospital where he saw that all the accused persons were assaulting his father with rod and lathi. He has disclosed the name of Girdhar Singh, Pappu Singh, Tutu Singh, Mrityunjay Singh, Sheru Singh and Kripa Singh. He further deposed in para 2 that he followed the jeep by motorcycle of his maternal uncle and reached Garhwa hospital where he saw that all the accused persons were assaulting his father with rod and lathi. He further deposed in para 3 that his father died. P.W. 4-Jitendra Dixit in his deposition dated 11.08.2010 deposed that on 04.06.2008 at about 08:00 p.m. after hearing alarm, he went at the shop of Shyamdeo and saw that some persons are boarding him in the Commander jeep dragging from the shop. He further stated in para 2 that Girdhar Singh, Tutu Singh, Pappu Singh, Kripa Singh, Mrityunjay Singh and Sheru Singh were assaulting him and boarding him in the jeep took away to Garhwa. He further deposed in para 3 that he along with Nanhku Dixit went Garhwa by motorcycle and further stated in para 4 that when this witness went at Garhwa hospital he saw that above persons were assaulting Shyamdeo Dubey with lathi and rod. He further deposed in para 5 that he fled away and Shyamdeo Dubey died. P.W.5- Maina Kuer in her deposition dated 01.09.2010 deposed in para 1 that prior to two years at about 07:30 p.m., she was going towards the hotel of Shyamdeo Dubey for taking money where she was told that Gajendra Singh sustained gun shot injury. She further deposed in para 2 that Krishna Dixit was in a jeep, Girdhar Singh stopped the vehicle and asked to carry dead body to Garhwa. She further deposed that Kripa Singh torched the motorcycle of Shyamdeo Dubey and on query Girdhar Singh, Pappu Singh, Tutu Singh, Sheru Singh, Kripa Singh, Mrityunjay Singh and others assaulted Shyamdeo Dubey and took him away towards Garhwa. Considering the depositions of these P.Ws., wherein all have taken the name of these petitioners, the learned Sessions Judge has exercised his power under Section 319 Cr.P.C. 8. Recently the Constitution Bench of the Hon'ble Supreme Court has issued guidelines with regard to summon to additional accused during trial in Sukhpal Singh Khaira v. State of Punjab; [ (2023) 1 SCC 289 ]. Recently the Constitution Bench of the Hon'ble Supreme Court has issued guidelines with regard to summon to additional accused during trial in Sukhpal Singh Khaira v. State of Punjab; [ (2023) 1 SCC 289 ]. Paragraphs 39(I), 40(II) and 41(III) of the said judgment are quoted herein below: “39.(I) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order? The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable. 40.(II) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial? The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split-up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion. 41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319CrPC? 41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. 41.2. 41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. 41.2. The court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. 41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. 41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. 41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. 41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with. 41.7. If the proceeding paused as in para 41.1 above, is in a case where the accused who were tried are to be acquitted, and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case. 41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated) trial. 41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319CrPC, the appropriate course for the court is to set it down for re-hearing. 41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. 41.11. 41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. 41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. 41.12. If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier: (a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused. (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused.” 9. It is settled proposition of law that the trial Judge is not expected to allow mere evidence which has been placed on record and what has been stated by the witnesses. What has been stated by the witnesses confer vast and wide power to the trial court to elicit all necessary materials by playing an active role in the evidence collecting process. In the criminal case, the court is required to find out the truth. Considering the evidences of the prosecution witnesses, the learned court has called upon the petitioners to face the trial under Section 319 Cr.P.C. It is also well settled proposition of law that even a person is not named in the charge-sheet and has been made an accused, the trial court has adequate power to summon such named person as well. A reference may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Sunil Bharti Mittal v. CBI; [ (2015) 4 SCC 609 ]. Paragraph 50 of the said judgment is quoted herein below: “50. Person who has not joined as accused in the chargesheet can be summoned at the stage of taking cognizance under Section 190 of the Code. There is no question of applicability of Section 319 of the Code at this stage (see SWIL Ltd. v. State of Delhi). Paragraph 50 of the said judgment is quoted herein below: “50. Person who has not joined as accused in the chargesheet can be summoned at the stage of taking cognizance under Section 190 of the Code. There is no question of applicability of Section 319 of the Code at this stage (see SWIL Ltd. v. State of Delhi). It is also trite that even if a person is not named as an accused by the police in the final report submitted, the court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (see Union of India v. Prakash P. Hinduja). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer.” 10. In view of the position of law and looking into the impugned order, the Court finds that five witnesses have taken the name of these petitioners, who have played active role in such a heinous crime and that is why, the impugned order has been passed. There is no doubt that Section 319 Cr.P.C. is a discretionary and an extra-ordinary power to the court and it is required to be exercised sparingly and only when cogent evidence is available. In the case in hand, sufficient material was found against the petitioners during the course of trial, as has been noted herein above. The learned court has rightly called upon the petitioners under Section 319 Cr.P.C. to face the trial. 11. In view of the above facts, reasons and analysis, there is no illegality in the impugned order. 12. Accordingly, this petition is dismissed. 13. The trial court shall proceed, in accordance with law. 14. Interim order, if any granted by this Court, stands vacated.