Loni Lavanya vs State of Bihar and Another

Samarendra Pratap Singh, J.—The instant revision application is directed against the order dated 15.12.2007, passed by the Sub-Divisional Judicial Magistrate, East Muzaffarpur in C-2609/2005, Tr. No. 1673 of 2008 whereby the learned Magistrate rejected her petition dated 21.11.2007 u/s 319 Cr.P.C. to summon other persons to face trial who have not been arrayed as accused in the case. The petitioner filed the aforesaid complaint case against the ten accused persons u/s 498A of the Penal Code and Section 3/4of the Dowry Prohibition Act. The learned Magistrate after enquiry took cognizance of offence u/s 498A of the Penal Code and summoned only Opposite Party No. 2 to face trial.

As summons were not issued against the persons arrayed as an accused in the complaint petition, the petitioner filed revision application before this court bearing Cr. Revision No. 167 of 2006. and this court by order dated 7.12.2006 disposed of the application with an observation that if evidence comes in course of trial, as against other persons against whom cognizance u/s 498A IPC has not been taken, the court will be within its jurisdiction to summon the accused persons in terms of Section 319 Cr.P.C.

After cognizance, charge was framed against the Opposite Party No. 2. The complainant produced four witnesses including herself in support of her case. The complainant thereafter filed a petition u/s 319 Cr.P.C. for summoning other persons to be tried alongwith Opposite Party No. 2, as sufficient evidence had come against them also in course of trial.

The learned Magistrate rejected the application observing that it would be appropnate to pass an order u/s 319 Cr.P.C. after both sides have adduced their evidence.

The petitioner submits that the learned Magistrate erred in rejecting the application filed u/s 319 Cr.P.C. on the ground that the same can be considered only after both sides have adduced their evidence. He submits that enough material had come in the evidence of the four witnesses to summon additional persons to be tried u/s 319 Cr.P.C. He contends that Section 319 Cr.P.C. does not state that the power under this section can be exercised only when all the witnesses have deposed from both sides. The learned Magistrate ought to have considered the application on its merit and decided whether there was sufficient material to proceed against other persons, who were not an accused. Learned counsel relying upon a decision in the case of Rakesh vs. State of Haryana, reported in 2001 SC 2521, submits that the term evidence occurring u/s 319 Cr.P.C. would not necessarily mean evidence which is tested by cross-examination.

Learned counsel for Opposite Party No. 2 submits that the order of learned Magistrate does not suffer from any illegality. The learned Magistrate rightly observed that the petition u/s 319 Cr.P.C. ought to be decided only when both sides have adduced their evidence. She submits that the term ''evidence'' occurring in Section 319 Cr.P.C. would necessarily have to include the evidence coming on behalf of the defence also, and as such the learned Magistrate rightly held that a petition u/s 319 Cr.P.C. would be considered when defence has also adduced its evidence. She further submits that the power u/s 319 Cr.P.C. is to be exercised very sparingly with utmost caution.

Before I deal with the rival submissions of learned counsel, it would be necessary to quote Section 319(1) Cr.P.C. which reads as follows:-

"319. 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."

It would appear from plain reading of aforesaid provision that a Court can exercise power u/s 319 Cr.P.C. if in course of enquiry or trial, it appears from evidence that any person who is not an accused has committed any offence, the court may proceed against such person and try him together with other accused persons. The section nowhere prohibits exercise of such power till all witnesses have deposed from both sides. What the section requires is that there must come some legal evidence in course of enquiry or trial against persons other than accused from which it credibly manifest that the person concerned has committed an offence. The term ''evidence'' mentioned in the section is not to be read lightly, but the court has to be circumspective while exercising this power. The provision enjoins exercise of utmost caution while exercising such extraordinary power. In course of enquiry or trial, if legal evidence appears necessitating summoning of an additional person to be tried with other accused, the court is empowered to summon such person without waiting for all evidence to be adduced. However, if the court finds that the materials are not sufficient for summoning an additional accused, it can either reject the petition or may defer it till some more evidence comes on record. It cannot defer the consideration of the issue as a rule that the law requires that the same is to be considered when all witnesses are examined on behalf of both sides. The provision not in the slightest suggest that jurisdiction under this section can be invoked only when witnesses on behalf of both sides have de-posed during the trial. The Apex Court in the case of Ranjit Singh Vs. State of Punjab, in paragraph 20 has held as follows:-

"20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when power u/s 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new-person be persons to the array of the accused. Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers."

The aforesaid view was approvingly quoted in the case of Rakesh vs. State of Haryana, reported in 2001 SC 2521 which is quoted hereinbelow:-

"12. Further, the scope of Section 319 was considered by this court in Ranjit Singh Vs. State of Punjab, . In paragraph 10, the Court held that sub-section (1) of Section 319 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. The court has also clarified that:

"Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."

Section 3 of the Evidence Act defines evidence to mean and include:-

(1) All statements, which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry;

(2) All documents produced for inspection of the Court which are called documentary evidence.

The Apex Court in the case of Rakesh vs. State of Haryana (supra) the Hon''ble Apex Court rejected the plea that the term "evidence" as used in Section 319 would mean evidence which is tested by cross-examination. Thus, the term "evidence" appearing in Section 319 Cr.P.C. would not in the least refer to a stage when all evidence are adduced on behalf of prosecution arid defence. The submission of learned counsel for Opposite Party No. 2 that a court can consider an application u/s 319 Cr.P.C. only when both sides have adduced their evidence, is devoid of any substance and rejected.

There is no disagreement with submissions of learned counsel for Opposite Party that power u/s 319 Cr.P.C. should be used sparingly and with utmost Caution as it brings an additional person not being an accused in the column of accused to be tried along with other accused persons facing trial. The Apex Court in the case of Kailash vs. State of Rajasthan, reported in 2008(4) P.L.J.R. 247 while examining the Scope of Section 319 Cr.P.C. has held in paragraph 9 as follows:-

"9. ...A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are "it appears from the evidence"..." "any person"..."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion u/s 319 Cr.P.C. would be used by the Court. This is apart from the fact that such person against whom such discretion is used, should be a person could be tried together with the accused against whom the trial is already going on. This Court has time and again, declared that the discretion u/s 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands."

The Hon''ble Apex Court in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, has observed that the power u/s 319 Cr.P.C. is an extraordinary power and is to be exercised only for compelling reasons. In paragraph 13 their Lordships have held as follows:-

"13. ...it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrived at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence."

The Hon''ble Apex Court in the case of Krishnappa Vs. State of Karnataka, has held the power u/s 319 Cr.P.C. should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across an evidence connecting that other person also with the offence. The Hon''ble Apex Court further observed that a judicial exercise is called for, keeping in view the conspectus of the entire case. Such power is to be exercised considering all relevant factors. An order summoning a person not being an accused u/s 319 Cr.P.C. ought not to be passed in a mechanical manner merely on the ground that some evidence has come on record implicating the person sought to be added as an accused.

Thus the "scope, object and the circumstances under which discretion u/s 319 Cr.P.C. would be exercised has been very authoritatively laid down by the Hon''ble Apex Court as noticed above.

In the instant case, however, the learned Magistrate did not decide the application u/s 319 Cr.P.C. on its merit.

As such the reference by petitioner to scope, object and circumstances relevant for exercise of power u/s 319 Cr.P.C. is prematured as the learned court has not decided the issue on merit. The interpretation and laws laid down by the Apex Court in abovementioned cases would form the principles for deciding such issues on merit. As the complainant after adducing all its witnesses filed a petition u/s 319 Cr.P.C. the same ought to have been decided on its own merit at that stage itself. The court erred in rejecting the same on a misconceived reading of section that the same required to be considered only when both sides have adduced their witnesses. The learned Court below was conceptually wrong in holding the aforesaid vide (sic-view ?). In view of the aforesaid discussions, the impugned order dated 15.12.2007, passed by the S.D.J.M., East Muzaffarpur in C-2609/2005, Tr. No. 1673 of 2008 is not sustainable in law and the same is accordingly set aside. This revision application is accordingly allowed. However, the matter is remitted back to the learned Magistrate for fresh consideration in accordance with law.