Margoobul Hasan vs State of U.P.

V.P. Mathur, J.—This Criminal Revision is directed against the judgment and order passed on 3-2-1988 by the IXth Addl. Sessions Judge of Moradabad in Sessions Trial No. 280 of 1987 (State v. Akbar and Ors.) pending in his Court u/s 307 IPC whereby he has allowed an application moved by the State purporting to be u/s 319 of the Code of Criminal Procedure and directed that Margoobul Hasan be summoned as an accused in this case.

The learned Counsel has placed on the record a certified copy of the statement of Riyazul Hasan, on the basis of which the application was moved on behalf of the State by the A.P.P. to summon Margoobul Hasan u/s 319 Code of Criminal Procedure. A certified copy of this application has also been placed on the record.

The learned Counsel has argued that Margoobul Hasan was an accused in this case in the beginning and the police submitted a final report against him, which was accepted and therefore, he could not now be summoned u/s 319 Code of Criminal Procedure. He has further said that the summoning order is based upon an incomplete statement of a witness, inasmuch as cross-examination has not been made, and hence, also the applicant could not be summoned u/s 319 Code of Criminal Procedure.

Section 319 Code of Criminal Procedure has been subject of discussion and consideration in a number of cases. In the case of Joginder Singh v. State of Punjab AIR 1979 SC 339, Tulzapurkar, J. observed that "A plain reading of Section 319(1) which occurs in Chapter 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 persons".

This was followed in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, , in which a Division Bench observed after quoting Section 319 with its Sub-sections (1), (2), (3), (4)(a)(b). "This provision gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused. This provision was also the subject-matter of decision by this Court in Joginder Singh and Another Vs. State of Punjab and Another, . In these circumstances therefore, if the prosecution can at any stage produce evidence, which satisfies the Court that the other accused or those who have not been arrayed as an accused against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them and try them along with the other accused".

A perusal of this case will show that proceedings had been quashed against a person but during evidence he was also named by the witnesses and the Court, therefore, held that u/s 319 Code of Criminal Procedure he can be summoned to stand trial along with the other accused, even inspite of the fact that proceedings had been quashed against him.

In the case of Mahant Amar Nath Vs. State of Haryana and Another, , another Division Bench of the Supreme Court was of the view that where in respect of murder of one person and injuries to two persons, the police did not challan the Appellant and three others inspite of the fact that in all the statements recorded u/s 161 Code of Criminal Procedure the eye-witnesses had stated about the participation of these four persons in the commission of the crime, but on application u/s 319 Code of Criminal Procedure by the informer, the Sessions Judge after recording evidence of one injured eye-witness who gave sufficient details about the participation of the aforesaid four persons, impleaded these persons as accused in the case, it was held that there was no infirmity or illegality in the order of the Sessions Judge. The fact that the details given by the eye-witness at the trial had not figured in his statement u/s 361 Code of Criminal Procedure was at this stage immaterial. That aspect clearly fails within the domain or appreciation of evidence to be done finally at the end of the trial before pronouncing upon the guilt or otherwise of the concerned accused.

A single Judge of this Court in the matter of Harish Chandra v. State of U.P. 1982 Allahabad Criminal Rulings page 57, was of the view that the requirement of Section 319 was that it should appear from evidence during the course of the trial that some person not present before the Court has committed an offence. The expression "evidence" when read in the context of the words "in the course of any trial" occurring before it and in the context of the provision contained in Sub-section (4) can mean nothing but the evidence adduced during the trial of the case, in other words if after the trial has commenced, it appears to the Trial Court on the evidence recorded by it that some person other than the persons already before the Court, is also concerned in the commission of the offence, it is open to the Court to summon him. It was further observed that the word ''evidence'' occurring in Sub-section (1) of Section 319 would not include Case Diary. It may be open to a Court to take into consideration any material existing in the Case Diary in order to decide whether charge should or should not be framed against the accused, that will however not be an evidence in the case, till it is proved.

In an earlier case of Doodh Nath Lal v. State of U.P. 1981 ACR 26 also it was held that summoning on the basis of case diary alone without recording any evidence was illegal.

Thus a perusal of the entire case law on the subject will make out the following points:

(i) Proceeding u/s 319 Code of Criminal Procedure means that there is material on record justifying for taking of cognizance of an offence, but does not mean that the accused has committed the offence.

(ii) Normally the Revisional Court should not disturb the satisfaction of the Magistrate on the point of sufficiency of material;

(iii) The section applies not only to the Magistrate''s Court but also to the Sessions Court and the commitment is of the case and not of the accused. Cognizance is to be taken of the offence and not the offender. Therefore, summoning of additional persons is incidental to the cognizance already taken. Even persons dropped during investigation by police can be summoned, if there is evidence against them during the course of the hearing of the case, because the Court is not bound by the police opinion.

(iv) ''Any person not being an accused'' will not exclude persons released by the police u/s 169 of the Code of Criminal Procedure.

Therefore, the argument of the learned Counsel that a final report was submitted against the applicant and hence he could not be summoned u/s 319 Code of Criminal Procedure is a wrong argument and has to be discarded. Joginder Singh''s case (supra) clearly lays down a principle against this argument.

The only other point to be seen is whether on the basis of mere examination-in-chief of a witness, an order u/s 319 Code of Criminal Procedure can be passed or whether it should be a complete statement i.e. statement consisting of his cross examination as well. The answer to this question is also not difficult to find. The present applicant is not yet an accused in the case and naturally when the witness was examined and the impugned order was passed, he had no occasion to come to the Court and take part in the proceedings. He was, therefore, not entitled to cross-examine the witness. Even if those of the persons who were already accused in the case and were also on the array of the parties, were not allowed to cross-examine the witness, it should be no concern of the present applicant. So far as he is concerned, the examination of the witness for the purposes of treating it as evidence u/s 319(1) could only have effect akin to one u/s 200 or 202 Code of Criminal Procedure for the formation of opinion whether or not there is sufficient ground for proceeding against him. Since he was no-where in the picture at the time when the impugned order was made or the witness was examined, he was not entitled to cross-examine the witness also. Refusal to cross-examination by others or even denial of opportunity to them for that purposes can not be matter of which he should be concerned. So far as the ground to proceed against him is concerned, the question was only between the complainant and the Magistrate. The satisfaction required for proceeding against him u/s 319(1) is just like the one under Sections 204, 228 and 240 of the Code of Criminal Procedure. He will become an accused after the process is issued to him. Therefore, there will be a regular retrial u/s 319(4)(a) and he will have the opportunity to cross-examine the witness also.

This matter was considered by the High Court of Kerala in the matter of Narayanan Nambian v. State of Kerala 1988 SCR 41 and I am in complete agreement with the view of the Kerala High Court. Under these circumstances, I hold that the order summoning the applicant is a justified order and the revision against it stands dismissed accordingly at admission stage.