Ashok Kumar Garg vs State of Haryana

V.S. Aggarwal, J.

The accusedpetitioner is aggrieved by the order of learned Sessions Judge, Sirsa dated 22.9.1992 requiring him to appear before the Court as an accused person, though he was not sent up by the police. Bailable warrants were directed to be issued.

On the basis of statement of Kalu Ram, son of Sagru Ram, a case was registered with respect to offences punishable under Sections 302/307/285/436/148/149/188/506 Indian Penal Code besides under Sections 25 and 27 of the Arms Act. The police investigated and submitted a final report under Section 173, Code of Criminal Procedure against 25 persons excluding the petitioneraccused. The case was committed to the Court of Sessions Judge, Sirsa who framed charges against those 27 persons and prosecution witnesses were examined.

Kalu Ram was examined as PW 19. After his statement was recorded by the Court of Sessions, an application was moved on his behalf to summon the petitioneraccused under Section 319, Code of Criminal Procedure. On 22.9.1992, vide the impugned order, the learned Sessions Judge, Sirsa allowed the application and directed the presence of petitioneraccused.

Learned counsel for the petitioner has challenged the impugned order of learned Sessions Judge as illegal and without jurisdiction. According to the learned counsel, there was no iota of evidence to connect the petitioner with the crime nor there is any material on the record. In his view, evidence would mean evidence recorded in the trial Court.

Before examining the said issue, let the statutory provisions under Section 319, Code of Criminal Procedure be adverted to. It provides as under

"319. Power to proceed against other persons appearing to be guilty of offence;

(1) Where, in the course of any enquiry 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) 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 subsection (i) then

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;

(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."

Perusal of the same clearly shows that (a) there must be an enquiry into or trial of an offence; (b) it must appear from the evidence that any person not being the accused has committed any offence for which such persons could be tried together with the accused, (c) in that event the Court may proceed against such person for such offence which he appears to have committed.

Seemingly Section 319, Code of Criminal Procedure springs from the doctrine, JUDEX NAMNATOR CUM NOCENS APSOLVITUR (Judge is condemned when guilty is acquitted). This doctrine must be used as a beacon light while searching the scope of and the spirit underlying the enactment of Section 319, Code of Criminal Procedure. Reason being that if a fact absent involvement of an accused is brought to the notice the statutory duty must be exercised.

In the case of Municipal Corporation of Delhi v. Ram Kishan, 1983 Criminal Law Jounral, 159, the scope of Section 319, Code of Criminal Procedure was explained by the Supreme Court. It was specifically held that the Court can take cognizance against the persons who have not been made accused. After referring to the 41st report of the Law Commission, Supreme Court held that this is an extraordinary power which should be used sparingly. In paragraph 19, the following guidelines were provided.

"15. In these circumstances, therefore, if the prosecution can at any state produce evidence which satisfies the Court that the other accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them alongwith the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken."

The same that evidence must be forthcoming prevailed with Single Judge of this Court in the case of Mithles Kumari v. State of Haryana, 1989(2) Chandigarh Law Reporter, 321. It was concluded that trial Court could summon the petitioner as accused after recording some evidence while acting under Section 319, Code of Criminal Procedure.

The decision of the Supreme Court in the case of Kishun Singh and others v. State of Bihar, 1993(1) Recent Criminal Reports 647 draws a final curtain on this controversy. The scope of Section 319, Code of Criminal Procedure again come up for consideration and in paragraph 11, the Supreme Court held as under :

"11. On a plain reading of subsection (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being he accused has committed any offence for which he could be tried together wit the accused. This is power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this subsection contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police."

It was further concluded that Section 319 covers the post cognizance, stage where in the course of an enquiry or trial the involvement of a person or persons not named by the Investigating Officer has surfaced which necessitates the exercise of discretionary power conferred by the said provision. It is, therefore, established without any pale of controversy that before acting under Section 319, Code of Criminal Proceudre during the course of enquiry or trial, some evidence must be forthcoming to able the Court to act under subsection (1) of Section 319, Code of Criminal Procedure. It is not necessary that evidence should be one, we should establish beyond sufficient reasonable doubts the guilt of the accused. The evidence on the record should be sufficient to show that any person other than the accused before the Court is also concerned the commission of the crime. Surely it cannot be stretched further to imply that evidence must be sufficient even to warrant the conviction of such a person. Thus evidence has to be looked as a purpose of framing the charge and not with an eye to ultimate conviction of such a person. It is for the simple reason that while considering evidence which has come on record and which indicates involvement of such person, other than the accused the Court is not required to evaluate or appraise the evidence in detail. It would amount to prejudging the issue.

As regards the question as to what is meant by the expression "evidence" occurring under subsection (1) of Section 319, Code of Criminal Procedure, it goes without saying that the word "evidence" has not been defined in the Code of Criminal Procedure.

"TAYLOR uses the word ''evidence'' to mean "all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth which is submitted to judicial investigation."

"Taylor defines evidence as "any matter of fact which is furnished to a legal tribunal otherwise than by reasoning, or a reference to what is noticed without proof, as the basis of an inference to some other matter or fact."

According to WIGMORE the term ''evidence'' represents; ''Any knowable fact or group of facts, not a legal or a logical principle considered with a view to its being offended before a legal tribunal for the purpose of producing a persuasion positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or of logic, on which the determination of the tribunal is to be asked."

(From Sarkar an evidence 10th Edition, Page 22)

Section 3 of the Evidence Act speaks that "Evidence" means and includes all statements which the Court permits or requires to be made before it by the witnesses in relation to matters of fact under inquiry and all documents produced for the inspection of the Court. Reference to all these provisions indicate that under section 319, Code of Criminal Procedure reference to evidence is in the wider context. As pointed out above, it need not be an evidence establishing the case beyond all reasonable doubts before the court can act under Section 319(1), Code of Criminal Procedure. It should be evidence under section 3 of the Evidence Act received in Court.

The statement of Kalu Ram, PW19 is clear and unambiguous and names Dali (present petitioner) who has accompanied others. Learned counsel for the petitioner vehemently urged that petitioner is not Dali and there was no material on the record in this regard. Despite the opportunity given, the State unfortunately did not file any affidavit, but it was not disputed that in the F.I.R. the petitioner has been described as Dali also. The F.I.R. had been recorded at the behest of Kalu Ram, PW19. Without going into correctness of the same, as for present, since the F.I.R. was made by Kalu Ram, who was examined also in that regard, it must be taken to be evidence for the purpose of subsection (1) to Section 319, Code of Criminal Procedure. Absence of overt act will not make much difference because his presence in sequence can attract Section 34 of the Penal Code. At this stage, there was prima facie evidence and I find no reason to interfere in the order passed by the Sessions Judge, Sirsa.

Purposely detailed scrutiny is not being made because that would be embarrassing to either party. Nothing said herein should be taken as an expression of opinion on merits of the matter.

For the reasons recorded above, revision petition being without merits, fails and is dismissed.