Mithlesh Kumari vs State of Haryana

A.L. Bahri, J.—On the night intervening 24th and 25th October, 1984, Bal Krishan committed suicide. From the body of Bal Krishan, two letters, dated October 22 and October 23, 1987 were recovered. These letters indicated that his wife Veena was being used as prostitute under the influence and pressure of her father Suraj Parkash, her mother Bhagwanti, their landlord Pala and Mithlesh, wife of Gopal Krishan, sister of Veena. The case was investigated by the police and report u/s 173, Code of Criminal Procedure was submitted against Suraj Parkash, Veena and Bhagwanti. After these accused were committed to the Court of Sessions, an application was filed that on the basis of those letters, Pala and Mithlesh Kumari should also be summoned to face trial along with others. The said application was allowed by the Additional Sessions Judge on April 6, 1988. Vide order dated June 13, 1988, the Additional Sessions Judge came to the conclusion that there were grounds for proceeding against the five accused aforesaid who were ordered to be charged u/s 306, Indian Penal Code. These two orders are being challenged by Mithlesh Kumari in this revision petition.

The contention of learned Counsel for the Petitioner is that without recording evidence, Additional Sessions Judge had no jurisdiction to order summoning of the Petitioner to face trial. There is force in this contention. Section 319(1), Criminal Procedure Code, reads as under:

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.

The aforesaid provision no doubt gives wide powers to the trial Court in the matter of summoning any person, even if not shown as an accused in the report submitted u/s 173, Criminal Procedure Code, against whom during the course of an inquiry or trial, it appears from the evidence that he had committed any offence. The matter was under consideration of the Supreme Court in Joginder Singh and Another Vs. State of Punjab and Another, . While referring to the provisions of Sections 193, 209 and 319(1) of the Code of Criminal Procedure, in para 6 of the judgment it was held as under:

It is true that there cannot be a committal of the case without there being an accused person before the Court, but this only means that before a case in, respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once the case in respect of the offence qua those accused who are before the Court is committed then'' the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental, to such [cognizance and a part of the normal process that follows its otherwise the conferral of the power u/s 319(1) upon the Sessions Court would be rendered negatory.

(Emphasis supplied).

The above view was reiterated by the Supreme Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, . In para 19 of the judgment, it was held as under:

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 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. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.

In the present case, the trial as such has not proceeded. The evidence is yet to be recorded at the trial. What was before the Court was a report submitted u/s 173, Code of Criminal Procedure accompanied by statements of the witnesses recorded u/s 161, Criminal Procedure Code, and documents, the two letters, referred to above. Such statements recorded u/s 161, Criminal Procedure Code, or the documents produced cannot be considered as evidence led during the trial to invoke the powers u/s 319(1) of the Code of Criminal Procedure. At this stage, it may be stated that such material may be considered for the purposes of framing charge as is clear from Sections 226, 227 and 228 of the Code of Criminal Procedure. These provisions relate to trial before the Court of Sessions. While opening the prosecution case, the Public Prosecutor is to describe the charge brought against the accused and to state'' by what evidence he proposes to prove the guilt of the accused. It is upon consideration of the record of the case and the documents submitted therewith that if the Court finds no sufficient ground to proceed against the accused, the Court shall discharge the accused, otherwise the Court is to frame the charge. These provisions are applicable to the accused who are before the Court. It is thereafter that when evidence is recorded during the trial that provisions of Section 319, Code of Criminal Procedure would come into play that the Court may summon any other person to stand trial with the persons already accused before the Court if from the evidence led it appears to the Court that such person has committed an offence. Since in the present case the Court had not recorded any evidence, resort to the provisions of Section 319(1), Criminal Procedure Code, could not be had simply on the application filed by the Public Prosecutor or the complainant. Order dated April 6, 1988 summoning Mithlesh accused to face trial being illegal is set aside. With consequence the order framing charge against Mithlesh accused dated June 13, 1988 to that extent is also set aside, while accepting the revision petition.