ARVIND KUMAR MISHRA vs STATE OF U P & ANOTHER

Heard Shri R.D. Shahi, learned counsel for the petitioner, learned A.G.A. and perused the record.

Petition is filed to quash the impugned order dated 28.01.2016 passed by the learned Special Judge EC Act/ learned Additional Sessions Judge Hardoi in ST No.124/14 State vs. Shiva Kant Misra and Others, Police Station Harpalpur, District Hardoi whereby the learned trial court has summoned the petitioner under section 319 Cr.P.C. to face the trial under section 147, 148, 149, 302 IPC.

Learned counsel for the petitioner contended that the learned trial court has not exercised the jurisdiction vested in it. It is further contended that the learned trial court has not assigned any reason in the order. Order is non speaking. It is further contended that the petitioner is a practicing lawyer. On the date of occurrence he was present in the District Court Fatehgarh wherein he has appeared in a case before the Special Judge SC/ST / Motor Accidents Claim Tribunal in Sheela Devi vs. United India Insurance Company. It is further contended that he has been falsely implicated in the case.

Per contra, learned A.G.A. and learned counsel for the opposite party no.2 has supported the prosecution version and contended that revisionist is named in the FIR. In the statement under section 161 Cr.P.C. witnesses have named him even before the court. PW-1 Satendra Kumar Misra and PW-2 Shailesh Kumar Misra have named the revisionist. It is further contended that the impugned order has been passed strictly in accordance with law wherein learned trial court has recorded cogent reasons for arriving at the conclusion. It is further contended that the revisionist is a practicing lawyer who is trying to misuse his position.

Learned counsel for the petitioner has placed reliance upon Sarabjit Singh and Another vs. State of Punjab and Another 2009 Vol66 ACC 32 wherein Hon''ble Apex Court has held in para 17 and para 18 that an order under section 319 of the code therefore should not be passed only because the first informant or one of the witnesses seeks to implicate other persons. Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. It was further held that the courts are required to apply stringent test; one of the tests being whether evidence on record is such which would reasonably lead conviction of the person sought to be summoned.

In Hardeep Singh vs. State of Panjab 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. (Paras 89, 90 and 86)

All that is required for the exercise of the power under Section 319 CrPC 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 CrPC 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 crossexamination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, such a minitrial would affect the right of the person sought to be arrainged as an accused rather than not having any crossexamination 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 CrPC. At the time of exercise of power under Section 319 CrPC, the person sought to be arrainged 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 arrainged as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. 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 CrPC enables the court to record evidence in the absence of the accused in the circumstances mentioned therein.

Thus power under Section 319CrPC 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 crossexamination, 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 tiral 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. 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 CrPC 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 CrPC. (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 CrPC 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 CrPC. 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 CrPC. 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 CrPC. (84)."

Revisionist Arvind Kumar Misra is named in the first information report. Specific role of firing has been assigned to him in the first information report. In the statement before the trial court PW-1 Satendra Kumar Misra has named the revisionist and has stated that he fired by his rifle on Nand Kishore which hit him. PW-2 Shailesh Kumar Misra has also named the revisionist. So far as the plea of alibi is concerned that on the date of incident the revisionist was present in the court of Special Judge SC/ST Fatehgarh in MACP No.5/13, Sheela Devi vs. United India Insurance Company Limited, it can be seen by the learned trial court during the trial. At the stage of summoning of the accused under section 319 Cr.P.C. court is not required to consider the plea of alibi. When the revisionist is named in the first information report, he has been named by the eyewitnesses PW-1 and PW-2 before the court there was no reason for the learned trial court not to allow the application under section 319 Cr.P.C. for summoning the revisionist. Power under section 319 Cr.P.C. is discretionary and extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused.

At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. Under section 319 Cr.P.C. 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 which requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more prima facie case as exercised at the time of framing charge but short of satisfaction to an extent with 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. In Section 319 Cr.P.C. 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 319 Cr.P.C. to form any opinion as to the guilt of the accused.

Hon''ble the Constitution bench of the Apex Court has ruled that the degree of satisfaction of the court should not be such wherein the court has to form an opinion that accused can be convicted on the basis of evidence available on record. Hence, the revisionist could not get any benefit out of the case law in Sarabjit (supra) case.

Learned trial court has recorded the prima facie satisfaction for summoning the accused under section 319 Cr.P.C. Revisionist was named in the first information report but he managed to overcome the investigating officer to expunge his name from the charge sheet as an accused but the witnesses in the witness box have specifically assigned the role of firing against the revisionist. Learned trial court has rightly held that there is evidence on record prima facie showing the complicity of the accused in commission of the crime. Learned trial court has rightly summoned the revisionist under section 319 Cr.P.C.

I do not find any material illegality or irregularity in the impugned order. Revision is devoid of any merit and is accordingly dismissed.