Manoj and Another vs State of U.P. and Another

J.C. Gupta, J.—Heard applicants'' counsel in revision and the learned A.G.A.

By means of this revision, applicants have challenged the order of the learned Additional Sessions Judge, Saharanpur (Court No. 2) in Special Session Trial No. 1153 of 1999 whereby applicants have been summoned as accused in exercise of powers u/s 319, Cr. P.C. to face their trial along with the accused already named by the police in the charge-sheet submitted after investigation.

Learned Counsel for the applicants submitted before the Court that in this case, both the applicants in revision were named in the first information report along with remaining two accused persons, who are facing trial before the court below, but during investigation their involvement was found doubtful, and therefore, they were not charge-sheeted. In such a situation, the applicants could not be summoned by the trial court in exercise of powers u/s 319, Cr. P.C. In support of this submission, learned Counsel for the applicants placed reliance upon a single Judge decision in Pradeep Kumar v. State of U.P. and Ors. (XLII) 2001 ACC 1021, wherein the learned Judge expressed the opinion that in a case where a person who was already named as accused in the first information report, but is not charge-sheeted, the provisions of Section 319, Cr. P.C. cannot be invoked. In support of this holding, the learned Judge placed reliance on the Apex Court''s decision in Michael Machado v. C.B.I. (XL) 2000 ACC 795.

I have gone though the said decision and find myself unable to locate any such proposition therein, which in the opinion of the learned Judge has been laid down by the Apex Court. In that case, the persons who were summoned as additional accused persons u/s 319, Cr. P.C. were neither named in the first information report nor were charge-sheeted. Even the C.B.I. had chosen to recommend only departmental proceedings against those persons, instead of arraigning them as accused along with the four persons named in the first information report. Even during the trial until 49 witnesses were examined by the prosecution, their names did not figure in the evidence anywhere and the trial court had no reason to feel the necessity to implead them as additional accused persons. But when evidence of remaining three witnesses was recorded, it appeared to the trial court that the additional accused persons were also involved in the crime and it summoned them u/s 319, Cr. P.C. The Apex Court in the peculiar set of facts and circumstances of that case observed that even according to the trial court the first 49 witnesses did not utter a single word against any of the accused persons, who were later summoned u/s 319, Cr. P.C. The Apex Court felt that in these circumstances where prosecution had already examined quite a large number of witnesses and they were cross-examined by the defence, summoning of additional accused u/s 319, Cr. P.C. at that stage was not warranted. It was further held that the Court while deciding the question whether to invoke power u/s 319 of the Code must also address itself about the other constraints imposed by the first limb of Sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. If the witnesses already examined are in quite a large number, the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, the Court should refrain from adopting such a course of action. The Apex Court further held that the basic requirement for invoking the aforesaid provision is that it should appear to the Court from the evidence collected during trial or in the enquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It appears to me that perhaps on the basis of these observations, the learned single Judge has taken the view that once a person has been nominated as an accused in the first information report but is not sent up for trial by the investigating agency, powers u/s 319, Cr. P.C. cannot be invoked as he was a person already arraigned as an accused in the case being named in the first information report.

To my mind, the expression "who is not arraigned as an accused in that case" would mean a person who is not facing trial as an accused in that particular case and not a person who was merely named as an accused in the first information report. I may also refer to another decision of the Apex Court in Kishun Singh v. State of Bihar 1993 ACC 167 . In that case, it was held that Section 319, Cr. P.C. contemplates existence of some evidence 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. Even a person who has earlier been discharged would fall within the sweep of the powers conferred by Section 319 of the Code. I am further fortified in my view in the decision of the Apex Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others,

For the above reasons, and with respect I am unable to agree with the view expressed by my learned brother in the aforesaid decision of Pradeep Kumar''s case. It is, thus, necessary that this question of law is examined and answered by a larger Bench.

Let the record be placed before the Hon''ble the Chief Justice for constituting a large Bench to consider the question:

Whether the view expressed in the case of Pradeep Kumar v. State of U.P. (XLII) 2001ACC 1021, that in relation to a person who was named as an accused in the first information report but was not charge-sheeted by the police, powers u/s 319, Cr. P.C. cannot be invoked, is correct

Meanwhile it is directed that execution of non-bailable warrants issued against the applicants shall remain stayed, provided they appear before the Court concerned on or before 30.7.2001.