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2023 DIGILAW 893 (MP)

Mrigendra Singh v. State of Madhya Pradesh

2023-11-03

SANJAY DWIVEDI

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ORDER Sanjay Dwivedi, J. - These petitions have been filed by the applicant/petitioners under Sections 401 and 482 of the Code of Criminal Procedure asking for quashing of order dated 26.11.2013 whereby the trial Court exercising the power provided under Section 319/193 of CrPC decided the application directing that the name of present applicant/petitioners be included in the array of accused persons and also directed that arrest warrant be issued against them for securing their presence before the Court. 2. The said order is being assailed by the present applicant/petitioners mainly on the ground that from the impugned order itself, it reveals that the trial Court has relied upon the statements of PW-1, PW-4, PW-6 and PW-7, namely, Ramrati, Raj Kumar Shukla, Ganesh Prasad Shukla and Kamlesh Prasad Shukla respectively, in which, they have taken the name of present applicant/petitioners and observed that as per their statement, the present applicant/petitioners should be made accused and as such, directed that they be arrested and produced before the Court so as to conduct a trial against them in relation to the offence registered vide Crime No.373/2003 under Sections 307/376 (2A)/436 of the Indian Penal Code. 3. Shri Sanjay Agrawal, learned senior counsel and other counsels appearing for the applicant/petitioners have submitted that though the trial Court has taken shelter of the statement of those witnesses, but from perusal of their statement, it is clear that they have not taken the name of present applicant/petitioners and as such, exercising the power provided under Section 319 of CrPC by the trial Court is absolutely illegal and the order making the present applicant/petitioners accused in the alleged crime deserves to be set aside. 4. Shri Agrawal has read over the statement of those witnesses, which have been filed by the applicant/petitioners along with the revision/petitions and pointed out that the order passed by the trial Court and observation made therein is absolutely perverse because the name of present applicant/petitioners has not been taken by any of the witnesses, although in the FIR, the name of present applicant/petitioners was there. He has submitted that the CID investigated the matter and found that the present applicant/petitioners were not present on spot at the time of alleged crime and their presence was found somewhere else, therefore, as per the provision of Section 169 of CrPC when the charge-sheet was filed, the present applicant/petitioners were not made accused. He has submitted that the CID investigated the matter and found that the present applicant/petitioners were not present on spot at the time of alleged crime and their presence was found somewhere else, therefore, as per the provision of Section 169 of CrPC when the charge-sheet was filed, the present applicant/petitioners were not made accused. He has further submitted that merely because one and two witnesses have taken the name of present applicant/petitioners does not mean that they should be made accused that too exercising extra ordinary power provided under Section 319 of CrPC. He has submitted that the power can be exercised sparingly under the circumstances when there is cogent material available before the Court indicating the role of person not made accused and his presence as an accused is necessary in the trial. He has submitted that merely because the name of present applicant/petitioners has been taken without indicating any role in the crime, the order passed by the trial Court issuing warrant of arrest directing their inclusion in the array of accused persons is not proper. He has further submitted that the investigation was done, in which, the present applicant/petitioners were not found involved in the alleged crime and as such, they have wrongly been made accused exercising the power of Section 169 of CrPC. He has further submitted that under such circumstances, the impugned order exercising the power provided under Section 319 of CrPC by the trial Court is absolutely unfounded and is liable to be set aside. In support of his submission, the counsel for the applicant/petitioners have placed reliance upon the judgments reported in (2023) 1 SCC 289 (Sukhpal Singh Khaira Vs. State of Punjab), (2022) 6 SCC 389 (Sagar Vs. State of Uttar Pradesh and another), (2021) SCC OnLine SC 632 (Manjeet Singh Vs. State of Haryana and Others), (2021) 5 SCC 337 (Sartaj Singh Vs. State of Haryana and another) and (2000) 3 SCC 262 (Michael Machado and another Vs. Central Bureau of Investigation and another). 5. State of Punjab), (2022) 6 SCC 389 (Sagar Vs. State of Uttar Pradesh and another), (2021) SCC OnLine SC 632 (Manjeet Singh Vs. State of Haryana and Others), (2021) 5 SCC 337 (Sartaj Singh Vs. State of Haryana and another) and (2000) 3 SCC 262 (Michael Machado and another Vs. Central Bureau of Investigation and another). 5. Per contra, Shri S.K. Kashyap, learned counsel appearing for the State has submitted that the name of present applicant/petitioners has not been included in the array of accused persons at the time of filing of charge-sheet that too on the basis of investigation conducted by CID, in which, it is found that the presence of present applicant/petitioners was not there at the time of alleged crime and their name has wrongly been added in the FIR along with other accused persons, therefore, the State has filed the charge-sheet not including the name of present applicant/petitioners. He has further submitted that at this stage, he has nothing to say about the impugned order and even he is not in a position to oppose the submission made by the counsel for the applicant/petitioners. 6. Shri Binod Kumar Tiwari, learned counsel appearing for the objector/complainant has supported the impugned order and tried to justify the observation made therein. He has further submitted that as per the incident narrated by the complainant before the police and the FIR lodged thereof, it is clear that the present applicant/petitioners were involved in the alleged crime and therefore, their name has been taken by the complainant. He has further submitted that there are 22 witnesses and according to him, 10 witness are yet to be examined. He has further submitted that looking to the nature of incident and the manner in which crime has been committed, when the witnesses have taken the name of present applicant/petitioners and their name was very much there in the FIR, there was no reason for the trial Court for not including the name of present applicant/petitioners in the array of accused persons and as such, the trial Court has rightly exercised the power provided under Section 319 of CrPC and directed that the present applicant/petitioners be included in the array of accused persons and warrant of arrest has rightly been issued against them. He has submitted that the witnesses are almost examined and there is no reason for interfering in the impugned order because the trial is likely to be concluded within a very short period of time and whatever order is passed by the trial Court, the present applicant/petitioners may face the same. As such, the order passed by the trial Court exercising the power of Section 319 of CrPC, does not call for any interference at this stage. According to him, the present applicant/petitioners are very influential persons having strong political background and nobody is coming forward to get the FIR registered against them. Even the police is not supporting the complainant party and as such, after conducting the investigation by the CID, they have suggested for removal of the name of present applicant/petitioners from the array of accused persons, ergo in the charge-sheet the name of present applicant/petitioners was not included in the array of accused persons. He has further submitted that the impugned order is justified and it does not call for any interference. According to him, the application/petitions deserve to be dismissed. 7. Considering the submissions made by learned counsel for the parties and after perusal of record, especially the statement of the witnesses on which the trial Court has placed reliance for invoking of Section 319 of the CrPC i.e. PW-1, PW-4, PW-6 and PW-7, namely, Ramrati, Raj Kumar Shukla, Ganesh Prasad Shukla and Kamlesh Prasad Shukla respectively, although they have taken the name of present applicant/petitioners along with other accused persons, but at the time of filing the charge-sheet, they have been added as accused persons. 8. Shri Sanjay Agrawal, learned senior counsel and other counsels appearing for the applicant/petitioners have contended that though the name has been taken by the witnesses not attributing any specific role of the applicant/petitioners in the alleged crime but not specifying any overt act of the applicant/petitioners, therefore, under the said circumstance, it was not proper for the trial Court to invoke the power of Section 319 of CrPC. They have submitted that merely because the name of present applicant/petitioners has been taken by the witnesses, not specifying their role alleging any overt act is not sufficient to convict them and as such, the trial Court should not have exercised the power provided under Section 319 of CrPC issuing summons to the present applicant/petitioners for facing trial because the said power can be exercised sparingly in a circumstance when there is sufficient material against the accused person and constitute more than a prima facie case against him. Shri Agrawal has placed reliance upon paragraph-41 of a case of Sukhpal Singh Khaira (supra), which reads as under:- "41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC? 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. 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. 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. He has further placed reliance upon the observations made by the Supreme Court in case of Sagar (supra) wherein the Supreme Court dealing with the scope of Section 319 of CrPC has observed as under:- "8. The scope and ambit of Section 319 of the Code has been well-settled by the Constitution Bench of this Court in Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and paras 105 and 106 which are relevant for the purpose are reproduced hereunder : (SCC p. 138) "105. Power under Section 319CrPC is a discretionary and an extraordinary power. Power under Section 319CrPC is a discretionary and an extraordinary 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. 106. Thus, we hold that though only a prima facie case 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 319CrPC. In Section 319CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words for which such person could be tried together with the accused. The words used are not for which such person could be convicted. There is, therefore, no scope for the court acting under Section 319CrPC to form any opinion as to the guilt of the accused." (emphasis in original) 9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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. The learned Single Judge of the High Court has even failed to consider the basic principles laid down by this Court while invoking Section 319 of the Code, which has been considered by the learned trial Judge under its order dated 30-1-2018." (emphasis supplied) 10. The learned Single Judge of the High Court has even failed to consider the basic principles laid down by this Court while invoking Section 319 of the Code, which has been considered by the learned trial Judge under its order dated 30-1-2018." (emphasis supplied) 10. However, I am not convinced with the submissions made by learned counsels for the applicant/petitioners for the reason that the trial Court after scrutinizing the statement of the witnesses viz PW-1, PW-4, PW-6 and PW-7, namely, Ramrati, Raj Kumar Shukla, Ganesh Prasad Shukla and Kamlesh Prasad Shukla respectively, in which, the name of present applicant/petitioners has been taken by them and the presence of accused persons on spot has also been acknowledged, has passed the impugned order. 11. The basic object of invoking the power provided under Section 319 of CrPC has been observed by the Supreme Court in a case reported in (2014) 3 SCC 92 (Hardeep Singh Vs. State of Punjab & Others and other) that the real culprit should not get away unpunished and further that the provision is based on the doctrine judex damnature cum nocens absolvitur (judge is condemned when guilty is acquitted). Thus, it is clear that the Court if finds that a person who was involved in the crime but was not made accused is required to face trial, the power provided under Section 319 of CrPC can be invoked. The basic argument of the counsel for the applicant/petitioners was that though the name of present applicant/petitioners has been taken by the witnesses, but they have not specified any overt act of the present applicant/petitioners and in absence of alleging any specific role in the crime, the power of Section 319 should have not been invoked by the trial Court. 12. However, I do not find any substance in the submissions made by the counsels for the applicant/petitioners in view of the recent judgment of the Supreme Court reported in 2023 LiveLaw (SC) 573 (Sandeep Kumar Vs. The State of Haryana and another) wherein the Supreme Court has observed that merits of the evidence has to be appreciated only during trial, by cross-examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319 of CrPC. The State of Haryana and another) wherein the Supreme Court has observed that merits of the evidence has to be appreciated only during trial, by cross-examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319 of CrPC. The Supreme Court has further observed that for attracting the offence of Section 149 of the IPC, one simply has to be a part of an unlawful assembly. Any specific individual role or act is not material. No overt act needs to be assigned to a member of unlawful assembly. In this case, the Supreme Court has not only considered the essential ingredients of Section 319 of CrPC, but also taken note of the fact that if the accused is charged under Section 149 of IPC and his presence is acknowledged by the witnesses as a member of unlawful assembly, then any specific overt act of that particular accused is not required to be specified. The Supreme Court in this case has observed as under:- "In our opinion, whereas the trial court was absolutely correct to have summoned the accused based on the evidence of PW-9, the High Court committed a grave error in allowed the revision of the accused. Under the facts and circumstances of the case and on the powers of the court under Section 319 and based on the evidence of PW-9, it was absolutely necessary for the trial court to have summoned the three accused, including the revisionist. The reasons given by the High Court, cannot be accepted at the stage of consideration of application under Section 319 Cr.P.C. The merits of the evidence has to be appreciated only during the trial, by cross examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319, though this is precisely what the High Court has done in the present case. Moreover, the High court did not appreciate the important fact that the charges being faced by the accused were under Sections 458, 460, 323, 285, 302, 148 and 149 of IPC. Thus, one of the charges being Section 149, which is of being a member of unlawful assembly, for attracting the offence under Section 149 IPC, one simply has to be a part of an unlawful assembly. Thus, one of the charges being Section 149, which is of being a member of unlawful assembly, for attracting the offence under Section 149 IPC, one simply has to be a part of an unlawful assembly. Any specific individual role or act is not materia; [See : 2021 SCC OnLine SC 362-Manjeet Singh v. State of Haryana & Ors., Para 38]. A plain reading of Section 149 IPC (read with Section 4141 IPC), makes it clear that no overt act needs to be assigned to a member of an unlawful assembly. "Even if no overt act is imputed to a particular person when the charge is under Section 149 IPC, the presence of the accused as part of an unlawful assembly is sufficient for conviction". [See : Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539 ]" 13. Accordingly, in the existing facts and circumstances of the case, the impugned order passed by the trial Court invoking power provided under Section 319 of CrPC against the present applicant/petitioners does not appear to be improper for the reason that the trial Court has found that the present applicant/petitioners were very much there on spot at the time of alleged crime and their presence has been acknowledged by the witnesses of prosecution. Therefore, in view of Section 149 of IPC, they are accused and their individual act shall be considered at the time of passing the judgment, but they are otherwise entitled to face trial as accused persons and as such, they have rightly been summoned. The impugned order, therefore, does not suffer from any material irregularity and as such, needs no interference with regard to the present applicant/petitioners. 14. In view of the aforesaid observations, the revision/petitions filed by the applicant/petitioners are hereby dismissed.