Krishna Kumar Rai vs State of U.P. and Tap Narayan Rai

S.N.H. Zaidi, J.—This revision has been directed against the order dated 19.3.2005 passed by C.J.M. Ballia in Criminal Case No. 2336 of 1998 State v. Amit Rai and Ors. whereby the application of opposite party No. 2 u/s 319 Cr.P.C. was allowed and the revisionist was summoned for trial together with the accused persons.

The facts which gave rise to this revision, in brief, are that Opposite Party No. 2 Tap Narain had lodged a report on 2.8.98 at Police Station Narahi district Ballia against 4 persons, including revisionist Krishna Kumar Rai under Sections 328 336 504 506 I.P.C. The police, however, after investigation submitted a charge sheet under Sections 323 325 336 504 506 I.P.C. against 3 persons only excluding the name of the revisionist. The Magistrate took cognizance and tried the case. In the trial, after the examination of first informant as P.W.1, an application u/s 319 Cr.P.C. was moved by the prosecution to summon Krishna Kumar Rai. An objection against that application was filed by the accused persons. The learned trial Court (C.J.M. Ballia), after hearing the parties, allowed the application and ordered for summoning Krishna Kumar Rai for trial under Sections 323 325 336 504 506 I.P.C. together with the accused persons by the impugned order. Feeling aggrieved with the said order, Krishna Kumar Rai has preferred this revision before this Court.

I have heard the learned Counsel for opposite party No. 2 and the learned A.G.A. for the State and perused the materials on record as none appeared for the revisionist.

The impugned order has been challenged, according to memo of revision on the following ground:

It has been contended in the memo of revision that there is absolutely no legal evidence on record to connect the revisionist with the alleged crime.

The Hon''ble Apex Court in Kishun Singh v. State of Bihar 1993 SCC (Cri) 407 has observed in para 11 that:

On a plain reading of Sub-section (1) of Section 319 Cr.P.C. there could be no doubt that it must appear from the evidence tendered in accordance with any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power can be exercised only if it so appears from the evidence at the trial and not otherwise.

In Y. Saraba Reddy Vs. Puthur Rami Reddy and Another, the Supreme Court has observed that the word "evidence" in Section 319 Cr.P.C. contemplates the evidence of witness given in court.

The revisionist was named in the F.I.R. along with other accused persons. It was after the investigation that the Investigating Officer had dropped the name of the revisionist. In his statement P.W. 1 has stated that Krishna Kumar Rai had also arrived along with other accused persons on the place of occurrence and all of them abused his brother and pelted stones and when his son Vijay Shanker came to the rescue of his uncle then he was hit with stones as a consequence thereof he received severe injuries and besides him Jang Bahadur and Rajiv Kumar had also received injuries in the incident. In view of this it cannot be accepted that there was no evidence on record to connect the revisionist.

It has also been contended that during the investigation of the case, the Investigating Officer did not find any evidence against the revisionist and the application was moved belatedly at the middle of the trial. So far as the moving of the application with delay is concerned, it appears from Annexure 3 to the affidavit of the revision that the statement of P.W.1 was recorded on 18.9.2004 and the application was moved on the same date by the complainant Tap Narayan. Therefore, there appears no delay on the part of the prosecution to move the said application.

So far as the involvement of the revisionist in the incident is concerned, it appears that the Investigating Officer had accepted the plea of alibi that the revisionist was not present on the place of occurrence and was present in Patna where he was posted as Assistant Statistician in the Industry Department. The Hon''ble Supreme Court in Rajendra Singh v. State of U.P. and Anr. (2007) 7 SCC 378 has observed that the burden to prove the plea of alibi lies upon the accused. This could be done by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded u/s 161 Cr.P.C. In such a case the prosecution would have got an opportunity to cross examine the witness and demonstrate that their testimony was not correct. The Hon''ble Apex Court has also observed that the statements recorded u/s 161 Cr.P.C. by the Investigating Officer are wholly inadmissible as it is not a substantive piece of evidence and in view of the proviso to Sub-section (1) of Section 162 Cr.P.C. the statement can be used only for the limited purpose of contradicting the plea taken therein in the manner laid down in the said proviso. The alleged plea of alibi that the revisionist was not present at the place of occurrence and was present at Patna cannot be taken into account for deciding the application moved u/s 319 Cr.P.C.

Another contention raised in the memo is that the F.I.R. was lodged by opposite party No. 2 Tap Narayan whereas Satya Narayan Rai was examined before the Magistrate as P.W. 1 and the Magistrate without fixing the identity of first informant Tap Narayan Rai and witness Satya Narayan Rai as one and the same person, has taken into consideration the statement of P.W.1. This contention is liable to be rejected because the learned trial Magistrate has considered this circumstance and after observing that the signatures of Tap Narayan Rai had been put on the statement given before the court and the complainant had informed that Tap Narayan and Satya Narayan was the same person, there is nothing on record to show that the person examined before the Magistrate as P.W.1 was some one else than the first informant Tap Narayan Rai. This contention has therefore no legs to stand.

The Hon''ble Apex Court in a recent case of Y. Saraba Reddy v. Puthur Rami Reddy and Anr. (supra) has observed that "the trial court has no doubt jurisdiction to add any persons not being the accused before it to face the trial along with other accused person, if the court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence." In the case of Rajendra Singh (supra) the Hon''ble Apex Court has observed that "the statements of the witnesses u/s 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration." It is also observed that the court need not be satisfied that he has committed the offence but it should appear to it that he has committed an offence. In other words from the evidence, it need only appear that someone else has also committed an offence to exercise jurisdiction u/s 319 Cr.P.C. The court has further observed that "it did not see any reason to describe the power as an extraordinary power or to confine the exercise of it only in compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the Section only gives power to the court to ensure that all those persons involved in the commission of an offence are tried together and none left out."

In view of what has been stated above, there appears no illegality in the impugned order of the Magistrate in summoning the revisionist u/s 319 Cr.P.C. to face the trial together with other accused persons as it appears from the evidence on record that the revisionist was present and involved in the commission of the offence along with other accused persons. This revision has, therefore, no force and is accordingly dismissed.