Dr. Shamim Ahmad Khan vs State of Bihar

S.S. Sandhawalia, C.J.—The true amplitude of the power of the Court u/s 319 of the Criminal P.C., 1973, to proceed against a person for being tried together with others, for an offence which he appears to have committed from the evidence recorded in the course of the inquiry or trial, is the significant question necessitating this reference to the Division Bench.

On the basis of a fardbeyan by one Yusuf Khan dt. 15th Apr. 1983, a case u/s 396 of the Penal Code was registered at Awas Police Station, in the district of Gaya. The name of the petitioner, Dr. Shamim Ahmad Khan alias Samman Khan alias Shamim Ahmad, did not find place in the first information report, but the informant and the witnesses named him as the person behind the crime before the Investigating Officer immediately thereafter. The Investigating Officer, on the completion of the investigation, found sufficient evidence against the petitioner and one Niru Pasi (who was even named in the F.I.R.), but under the orders of the superior officer, the names of the petitioner and the said Niru Pasi were not placed in the charge-sheet. After cognizance by the Magistrate, the case was committed to the Court of Session and came up for trial before the 4th Additional Sessions Judge, Gaya. During the course of the said trial, P. W. 1 Ganzaffaer Ali Khan, P.W. 2 Zahid Khan and P.W. 3 Yusuf Khan expressly named the petitioner and Niru Pasi as accused in their evidence. A petition u/s 319 of the Code was preferred on behalf of the prosecution seeking the summoning of the petitioner and Niru Pasi for being tried together with the other accused persons. The learned Additional Sessions Judge vide the impugned order of 6th July, 1985, noticed that whilst Niru Pasi was named in the F.I.R. both he and the petitioner were immediately named thereafter by the informant and other witnesses as being directly implicated in the crime. Further investigation also revealed their complicity. However, without recording any express reason, the Deputy Superintendent of Police directed the Investigating Officer to submit charge-sheet against the other persons, but showed the petitioner and Niru Pasi as merely suspects in the case. Consequently, these two persons were not sent up for the trial. The learned Additional Sessions Judge further noticed that three witnesses in their evidence on oath had squarely implicated the petitioner. For these reasons he directed the summoning of the petitioner and Niru Pasi to face the trial in this case along with the other accused persons being tried already u/s 319 of the Code.

Aggrieved by the above order, the present petition for quashing the same has been preferred. It came up for admission before my learned brother R.N. Prasad, J., sitting singly and before him it was strenuously argued that the impugned order of the learned Additional Sessions Judge was beyond the scope of Section 319 of the Code. It was submitted that the petitioner''s name did not figure in the F.I.R. and the informant and the two other witnesses did not take up the stand before the Investigating agency that they had identified him in course of the dacoity, as is the case in their evidence in Court now. Noticing that the question of the scope of Section 319 of the Code is of considerable importance and deserves an authoritative decision, the matter was referred to the Division Bench.

As before the single bench, so before us, the learned Counsel for the petitioner pinned himself on the fact that the petitioner, though well known to the first informant, had not been named in terms in the first information report. Yet again his name did not find place in the charge-sheet as an accused person u/s 173(2) of the Code. Counsel contended that in view of these factors, the mere naming of the petitioner by the witness in couse of the trial that he was a participant in the dacoity would not empower the Court to summon him for standing his trial along with others u/s 319 of the Code. The somewhat doctrinaire argument raised was that the Police diaries immediately subsequent to the first information report and thereafter must be looked into and in a way given preference to the evidence recorded in Court in the event of any conflict between the two.

The somewhat curious contention of the learned Counsel that Police diaries and statements u/s 161 of the Code must not only be looked into, but be given preference to the evidence recorded in Court for the purpose of summoning an accused person u/s 319 has only to be noticed and rejected. Reference in this context must necessarily be made to Section 162 of the Code which shows the stringent limitation placed on the use of statements made to the police u/s 161. The prohibition that such statement if reduced into writing shall not be signed by the person making it is itself significant. Coupled therewith is the categoric mandate in Sub-section (1) thereof that such statement u/s 162 shall not be used for any purpose whatsoever1, except as provided under the proviso thereto. It is thus amply plain and indeed is well settled that statements to the police for purposes of evidence in Court are limited for confronting and contradicting such evidence in the manner provided in Section 145 of the Evidence Act. Any other use or reliance thereon is expressly prohibited by the statute. Consequently, the somewhat blanket argument that such statements u/s 161 of the Code and the police diaries should have preeminence and claim preference over the evidence recorded on oath in a sessions trial has to be rejected. Indeed in the event of a conflict between the sworn testimony before the Court and the mere unsigned and unaffirmed statements to a Police Officer, superior weight and pre-eminence must be given to evidence in Court, and not to alleged statements made before the minions of the investigating agency. The stand of learned Counsel for the petitioner that police diaries alone could negate the power of the Court to proceed against an accused person and summon him for trial on the basis of the testimony before it must consequently fail.

Yet again it seems significant to notice that the language employed in Section 319 of the Code is -- "where it appears from the evidence". What the law requires is that it merely appears to the Court and not that it is established or proved beyond doubt. It is plain that the word ''appears'' occurs at the lowest rung of the phraseology which could be used here, namely, "established", "proved", or "satisfied", etc. Merely "when it appears to the Court" is the broad base on which the summoning and the initiation of proceedings against an accused person may be lawfully rested. Section 319 does not prescribe that the Court should be convinced or totally satisfied that such a person has committed the offence. It suffices for the exercise of the power that it appears to be so to the Court. This aspect has recently come to be considered by the Full Bench in Iallan Singh v. State of Bihar, Cr. W.J.C. No. 40 of 1981(R) decided on the 13th Dec, 1985 in the context of Section 3(1) of the Bihar Control of Crimes Act, 1981 where similar terminology has been employed. Consequently it has to be held that the legislature in its wisdom has given a wide-ranging power to the Court if it only appears that another person has committed such an offence for which he could be tried together on the basis of the evidence recorded in course of the inquiry or trial against such a person.

6A. The view aforesaid is buttressed both directly and by way of analogy by binding precedent. In Joginder Singh and Another Vs. State of Punjab and Another, , their Lordships observed --

A plain reading of Section 319(1) which occurs in Chap. XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused;....

The aforesaid view has been elaborated and reiterated in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, of the Report and Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, . Lastly, within this jurisdiction, the recent Full Bench in Sk. Latfur Rahman and Others Vs. The State, has concluded as under:

Therefore, it seems to follow from the long line of precedent beginning with Raghubans Dubey''s case that a Magistrate trying a warrant case as also a Court of Session having once validly taken cognizance of the offence on the basis of police report (when considering material before it for framing a charge) is not only entitled but, indeed, duty bound to summon a person as an accused to stand trial before if it is fully satisfied of the existence of a prima facie case against an additional accused who may not have been sent up as such. To use the language of the Final Court, the summoning of the additional accused is part and parcel of the proceeding initiated by the taking of the cognizance of an offence.

However, a note of caution might well be sounded. Though there is wide amplitude in the discretion of the Court u/s 319 of the Code, it has to be inevitably used judicially. The guidelines for the exercise of the judicial discretion are difficult to be defined but otherwise well known. The very basis for the exercise of the power is evident from which it would appear that such a person has committed an offence who can be conveniently tried together along with the other accused persons already before it in the inquiry or trial. The larger rationale behind the section is to subserve the basic rule that a Court takes cognizance of the offence as a whole and not merely of offenders charge-sheeted before it and further to prevent multiplicity of trials, if the evidence of the witnesses indicates that another such person could be conveniently tried along with those already before the Court.

The second contention of the learned Counsel for the petitioner was sought to be tenuously rested on Sections 226, 227 and 228 of the Code. It was pointed out that in a trial before the Court of Session, the same begins with the Public Prosecutor opening his case by describing the charge brought against the accused persons and stating what evidence he proposes to prove against what accused. It is thereafter that the Court of Session will either discharge the accused persons or proceed to frame a charge. On these premises it was contended that if the name of the accused person does not find place in the list of persons committed to it, then later no charge can be framed against the person on the basis of evidence recorded later and the provisions of Section 319 would not come into play.

Learned Counsel''s reliance on Sections 226 to 228 exclusively in Chapter XVIII of the Code pertaining to trials before Court of Session seems misplaced. It is significant to notice that Section 319 finds place in Chapter XXIV containing general provision as to inquiry and trial; Consequently, the provisions of Section 319 are equally applicable to trial before a Sessions Court, and this aspect is so well settled by precedents that it could not be challenged by learned Counsel. That being so, to read Sections 226 to 228 in solitary exclusion as a bar to summoning the accused persons u/s 319 would be virtually nullifying the same in the context of the trial in the Court of Session. The provisions of Section 319 to my mind are clearly supplementary and complementary to those under Chapter XVIII and both have to be read harmoniously and together. They are not exclusory of each other. Consequently, when in the course of inquiry or trial it appears from the evidence that some other person or persons were also party or privy to the offence and he should be tried together with the accused, the Court has been conferred a wide ranging power to proceed against such a person. The. section also subserves the larger purpose of avoiding multiplicity of trials.

The contention that Sections 226 to 228 would exclude Section 319 is further negatived by the fact that the latter section comes into play in the course of the inquiry or trial. Sections 226 to 228 pertain to the very threshold stage of the beginning of a Sessions trial. Consequently, their field of operation is altogether different from what may follow much later during the course of such a trial. The relevant provisions, therefore, operate in an entirely different field - one at the threshold stage of the opening of the trial and the other in the subsequent stage of recording evidence in the course thereof which might even be nearing the close of a trial. There is thus no occasion of any conflict or contradiction in these relevant provisions.

Once the true legal issues lave been answered as above, this petition is plainly without merits. Indeed herein the learned Judge firmly rested himself on the evidence of as many as three witnesses who had named the petitioner along with Niru Pasi for complicity in the crime. He also referred to the Police diaries to find that immediately after the first information report, the informant and other witnesses had named the petitioner as the person behind the commission of the offence and also named him as one of the accused participating in the actual occurrence. From the Police records it was noticed that the District Inspector who had supervised the case had also directed the Investigating Officer to take steps against the petitioner and Niru Pasi, and the latter found sufficient materials for the same. However, the Deputy Superintendent of Police directed the Investigating Officer to exclude the names of the petitioner and Niru Pasi and the charge-sheet was not sent up against them and they were shown as merely suspects. The Court found that the Deputy Superintendent of Police had not assigned any reason for such a direction which seemed to be not warranted by the record. It is plain that these were more than ample grounds for the learned trial Court to summon the petitioner. Consequently, this criminal miscellaneous is hereby dismissed.

R.N. Prasad, J.

I agree.