Khetal Singh vs State of U.P. and another

Naheed Ara Moonis, J.—Heard Shri Naushad Siddiqui, holding brief of Shri Arvind Srivastava, the Learned Counsel appearing on behalf of applicant, Shri R.S. Tripathi, holding brief of Shri A.P. Tripathi, the Learned Counsel appearing on behalf of opposite party No. 2, the learned A.G.A. and perused the record. The present application u/s 482, Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 25.9.2006, passed by learned Additional Sessions Judge/Fast Track Court No. 2, Budaun, whereby the applicant has been summoned under Sections 307/34 and 504, I.P.C. in Sessions Trial No. 182 of 2004.

The facts given rise to this petition is that the opposite party No. 2 had lodged a first information report against four persons including the applicant on 14.12.2002 at about 5 : 15 a.m. in respect of the incident occurred in the intervening night of 13/14.12.2002 at about 12 : 30 a.m., stating therein that when the complainant''s brother was sleeping under thatched roof, the accused persons awaken him, as his brother saw them he tried to ran from the place. At this one of them had exhorted to fire at him and thereafter the accused persons had fired at his brother on account of which he sustained injuries. The incident had occurred on account of enmity as litigation is pending between them in respect of the landed property. On the registration of the first information report the police set in motion and investigated the case and submitted the charge-sheet under Sections 504 and 307, I.P.C. against Jhau Singh, Sunil and Vijaypal. On the basis of which the cognizance was taken by the court below and the Session Trial No. 182 of 2004 under Sections 307 and 504, I.P.C. was proceeded against the charge-sheeted accused persons. During the course of trial an application was moved by the opposite party No. 2 u/s 319, Cr.P.C. for summoning the applicant, as he was also involved in the offence, but the court below by order dated 15.7.2005 rejected the application after considering the statement recorded u/s 161, Cr.P.C. of the complainant and injured witness. Thereafter P.W. 1, Gopal who is the injured witness and P.W. 2, Lalaram, the complainant were examined before the Court and after their examination an application was moved by the complainant to summon the applicant as there are sufficient evidence against the applicant about his complicity in the commission of the offence. On 30.6.2006 the said application was rejected on the ground that the injured and the complainant had not mentioned any specific role of the applicant in respect of firing at the injured, which creates doubt about the presence of the applicant at the time of the incident. The complainant-opposite party No. 2 preferred a revision against the said order before this Court, and this Court while setting aside the order passed by the court below directed the trial court to decide the application of the revisionist-complainant u/s 319, Cr.P.C. again as the trial court had only considered the statement of the witness u/s 161, Cr.P.C. in deciding the application. Thereafter on 25.9.2006 the impugned order was passed by the court below. The court below has held that the complicity of the applicant is evident from the statement of the P.W. 1, Gopal and P.W. 2, Lalaram, who have given consistent statements that they were the eye-witnesses regarding the presence of all the accused persons including the applicant and their examination and cross-examination has also been completed. The name of the applicant was dropped by the Investigating Officer who was an Inspector in the U.P. Police and submitted the charge-sheet against three persons. The injured had specifically stated that he got injured on the firing of the applicant by his gun. The other accused persons were having pistols. Thus, on the basis of the statement of the injured and the complainant, the court below found prima facie offence is made against the applicant and as such passed the order summoning the applicant to face the trial.

The applicant aggrieved by the aforesaid order, had preferred this petition, and this Court by order dated 6.11.2006 stayed the operation of the impugned order dated 25.9.2006.

It is contended by the Learned Counsel for the applicant that, only on the basis of false and concocted story that the applicant and other accused persons have committed the alleged offence, the charge-sheet was submitted only against three persons as the complicity of the applicant was not found to be true. The learned court below has wrongly arrived at the conclusion that the prima facie case against the applicant is also made out, only when the order was passed by this Court on the application moved by the opposite party No. 2 on 24.7.2006. The power exercised by the court below u/s 319, Cr.P.C. suffers from manifest error as after investigation no charge-sheet was submitted against the applicant at the initial stage. When the statement of the witnesses and the injured were recorded, no specific role was assigned to the applicant and later on a story was developed before the trial court subsequently attributing the specific role to the applicant of firing upon the injured. Hence, the order passed against the applicant is liable to be quashed. In this regard the Learned Counsel has cited number of authorities of this Court as well of the Hon''ble Apex Court. The reference of which are being given below:

(i) Hardeep Singh v. State of Punjab and others, 2009 (1) JIC 362 : 2008 (3) ACR 3319 (SC).

(ii) Criminal Revision No. 5643 of 2009, Akram and others v. State of U.P. and another, 2009 (2) ACR 2114.

(iii) Sundarjas Kanyalal Bhathija and others Vs. The Collector, Thane, Maharashtra and others, .

(iv) Brindaban Das and others v. State of West Bengal, 2009 (1) JIC 486 : 2009 (1) ACR 325 (SC).

(v) Krishnappa v. State of Karnataka, 2005 (1) JIC 107 (SC).

(vi) Michael Machado and another v. Central Bureau of Investigation and another, 2000 (2) JIC 5 : 2000 (1) ACR 747 (SC).

(vii) Rajol and others v. State of U.P. and another, 2010 (2) JIC 920 (All).

(viii) Ram Kumar Mishra and another v. State of U.P. and another, 2010 (3) JIC 782 (All) : 2010 (3) ACR 3032.

On the basis of reliance made upon the aforesaid case laws it is further argued by the Learned Counsel for the applicant that the court below has failed to record his satisfaction to the fact that there is all likelihood that the accused-applicant is liable to be convicted and this question has also been referred to the larger Bench by the Apex Court in the case of Hardeep Singh v. State of Punjab and others, 2009 (1) JIC 362 : 2008 (3) ACR 3319 (SC).

Per contra, the Learned Counsel appearing on behalf of opposite party No. 2 has contended that from the perusal of the statement of the two material witnesses, the complainant and the injured, they have categorically stated about the involvement of the applicant in the commission of offence. The role of firing has been attributed to him. After investigation the charge-sheet was submitted only against three persons against whom the trial proceeded and also ended in their conviction. The applicant cannot derive any benefit that he is liable to be exonerated as he was not charge-sheeted by the police. The summoning order was passed long back in 2006 and the other accused persons have already been convicted. The applicant had moved an application u/s 401, Cr.P.C. for recalling the order dated 24.7.2006, whereby the Hon''ble Court had directed to pass a fresh order u/s 319, Cr.P.C. The said application was rejected on the ground that the applicant has no locus to challenge the said order as till that date he was not made an accused. The court below has recorded his satisfaction about the complicity of the applicant in the case after going through the statement of P.W. 1 and P.W. 2 and as such there is no illegality in the order passed by the court below in summoning the applicant exercising power u/s 319, Cr.P.C. The applicant has himself avoided the court proceeding by not appearing before the trial court, even though the cognizance order was passed against him on 25.9.2006, when the trial was proceeding against the other accused persons. The petition has no merit and deserves to be dismissed.

I have considered the submission of the Learned Counsel for the parties and have gone through the record of the case carefully. In this context Section 319, Cr.P.C. of the Code is necessary to be reproduced which runs as follows:

Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry 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 sub-section (1), then:

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

(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.

The court below has ample power u/s 319, Cr.P.C. to add any person as an accused, if there is sufficient evidence indicating his involvement in the offence. The summoning order cannot be set aside merely on the ground that the witness who have been examined have not been subjected to cross-examination. The court below in its discretion allow the accused already facing the trial to cross-examine the witnesses in relation to the complicity of the person sought to be summoned, so that a just and proper order could be passed u/s 319, Cr.P.C.

In the instant case, earlier the application u/s 319, Cr.P.C. was rejected as the witnesses were not cross-examined. Now, while passing the summoning order against the applicant, the witnesses had been cross-examined by the court below and thus, the court below arrived at the conclusion regarding the complicity of the applicant in the offence. Section 319, Cr.P.C. no- where has prescribed that the court below ought to have recorded its satisfaction that the applicant sought to be summoned in its all likelihood would be convicted. At the stage of summoning the accused only prima facie offence is to be looked into from the material on record. Any threadbare analysis would amount decision regarding conviction prior to facing of the trial which would amount to a mini trial. The Apex Court in the case of Sarojben Ashwani Kumar Shah v. State of Gujarat, LXXIV 2011 ACC 951 : 2011 (3) ACR 3020 (SC), has summarized the legal position with respect to the application of Section 319, Cr.P.C. as in para 16 as follows:

The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this:

(I) The Court can exercise the power conferred on it u/s 319 of the Code suo motu or on an application by someone.

(II) The power conferred u/s 319 (1) applies to all courts including the Sessions Court.

(III) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police u/s 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court.

(IV) The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word ''evidence'' in Section 319 contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the Court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

(V) The power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.

(VI) The Court while exercising its power u/s 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

(VII) Regard must also be had by the Court to the constraints imposed in Section 319 (4) that proceedings in respect of newly-added persons shall be commenced afresh from the beginning of the trial.

(VIII) The Court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.

In the aforesaid case, the Apex Court did not interfere with the order passed by the trial court in summoning the appellants and remitted the matter to the High Court for reconsideration in accordance with law.

In the instant case, when other persons have already been convicted by the trial court, at this stage there is sufficient material evidence available on record for invoking the power u/s 319, Cr.P.C. and as such the learned Magistrate has committed no error in passing the summoning order against the applicant. Each case has to be decided on its own merits.

In these circumstances the proceeding initiated against the applicant cannot be quashed, even otherwise, the power u/s 482, Cr.P.C. should be exercised sparingly to quash the proceeding only, if no offence is made out, whereas in the instant case from the statements of the witnesses recorded by the trial court, it cannot be said that the applicant was not involved in the commission of offence, and as such the order passed by the court below in summoning the applicant suffers from no illegality. Therefore, the instant petition lacks merit and is accordingly dismissed.

The interim order, passed by this Court is hereby vacated. The trial court is directed to proceed with the case against the applicant and to conclude the trial expeditiously, as early as possible, in accordance with law uninfluenced by any observation made hereinabove on the merits of the case.

Office is directed to communicate the order to the court below to proceed with the case in accordance with law.