Rajendra Singh vs State of U.P. and Chhangu

M.K. Mittal, J.—This revision has been filed for quashing the order dated 31.1.2008 passed by Addl. Sessions Judge, F.T. C. No. 1. Banda in S.T. No. 130 of 2007 arising out of Case Crime No. 115 of 2007 under Sections 323 504 506 IPC and Section 3(1)(10) of SC/ST Act (State v. Dablu Singh), P.S. Kotwali Dehat, District Banda whereby he allowed the application filed by the prosecution u/s 319 Cr.P.C. and directed to summon the accused.

Heard Sri B.K. Tripathi, learned Counsel for the revisionist, learned A.G.A. and perused the material on record.

Learned Counsel for the revisionist has filed certified copy of the examination in chief of P.W.-1 Changu, keep it on record.

Brief facts of the case are that opposite party No. 2 Changu filed a first information report alleging that on 3.5.2007 at about 10 a.m. when he was coming with his Tanga'' and when he reached infront of the shop of Binda Baniya the accused Rajendra Singh @ Lala (applicant) stopped his ''Tanga'' and abused him and said that whenever he was called to do anything he avoided it. All the four pulled him down the Tanga'' with his gireban and gave him kicks and fist blows. He was also threatened. However, Shyam and Shivpal and others of the village came and saved him. He could not go to lodge the report same day as his house was surrounded by the accused persons. However he could manage to go to the Police Station on 5.5.2007 and lodged the report at 9.15 a.m.

After investigation, Investigating Officer submitted the charge sheet against Dablu Singh @ Bhakaki. The prosecution led evidence and examined the informant as P.W.-1 and after completion of his examination in chief prosecution filed the application u/s 319 Cr.P.C. and the learned Judge holding that there were allegations against the other accused also including the present revisionist and that prima facie case was there against them, directed to summon the accused as above. Feeling aggrieved, this revision has been filed.

Learned Counsel for the revisionist has contended that learned Trial Court has erred in summoning the accused without having cross examination of the witness and thus he has not followed the law as laid down in the case of Mohd. Shafi v. Mohd Rafiq and Anr. (58) 2007 ACC 254. He has also contended that the order passed by the learned Judge is based on surmises and conjectures and that the accused is a peace loving citizen and has no criminal antecedents and has been falsely implicated in this case.

Learned A.G.A. has contended that cross examination of the witness is one of the ground for the concerned trial court to be satisfied about the complicity of the accused in the offence and if the cross examination has not been done, it cannot be said that the summoning order passed is illegal or without any evidence.

Section 319 Cr.P.C. reads as under:

Section 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.

(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3). Any person attending the Court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under Sub-section (1) then-

(a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) Subject to the provisions of Clause (a), the case may proceed as if such person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

In the case of Mohd. Shafi Vs. Mohd. Rafiq and Another, it has been held in para-7 by the Hon''ble Apex Court as under:

Before, thus, a trial court seeks to take recourse to the said provisions, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the Court concerned. It cannot be ipse- dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.

In that case, examination in chief of prosecution witness No. 1 was recorded and then an application was filed u/s 319 Cr.P.C. In that case trial court held that although the witness had claimed to have seen the incident but as per the statement he had reached after the incident and therefore it did not find sufficient grounds to summon the accused and rejected the application. Against that order the application u/s 482 Cr.P.C. was filed in the High Court of Judicature at Allahabad and the same was allowed. Against that order accused preferred appeal in the Hon''ble Apex Court and the same was allowed. Hon''ble Apex Court observed that "respondent No. 1 was merely a witness and he had no say in the matter. We thus fail to understand, as to how, at his instance, and, that too, at that stage, the High Court could entertain an application u/s 482 Cr.P.C. The judgement and order dated 26.8.2006 passed by the learned Sessions Judge was not even an interim order affecting the rights of the parties. Even revision application there against could not have been maintained at that stage". It was further held that "under Section 319 Cr.P.C. trial Judge was required to arrive at h is satisfaction and if he thought that the matter should receive his due consideration only after the cross examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aaarieved bv the same". While concluding the judgement in para-13 of the judgement, it has held that "_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". Therefore in that case the Hon''ble Apex Court has no where held that it is necessary that the cross examination of the witness should be completed before the accused can be summoned u/s 319 Cr.P.C. The cross examination of a witness is one of the mode of evidence which can satisfy the trial court about the fact that accused appeared to have committed the offence. Therefore, if in the instant case, cross examination of the witness was not completed it cannot be said that the learned Trial Court has erred in summoning the accused revisionist. What the court is required to see u/s 319 Cr.P.C. is that there appears to be evidence to show that some offence appears to have been committed by such person.

In the instant case, the witness has stated on oath that when he was taking his ''Tanga'' he was stopped by all the accused persons and was abused and was given kicks and fist blows. He was also addressed with caste denoting words. In the circumstances, there was sufficient evidence to show the prima facie complicity of the accused revisionist also.

It has been held by Hon''ble Apex Court in several judgements that exercise of power u/s 319 Cr.P.C. should be very sparing and with caution and only when the concerned court is satisfied that some offence has been committed by such persons.Reference can be made to the case of Michael Machado and Anr. v. C.B.I. and Anr. (IV) 2000 ACC 795 ; Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, Krishnappa Vs. State of Karnataka, But in a recent case of Rajendra Singh v. State of UP (2007) 3 SCC 375, it has been observed by the Hon''ble Apex Court in para 16 of the judgement as under:

As I see it, the words are plain and the meaning clear. When in the course of the enquiry or trial, it appears to the court from the evidence that a person, not arrayed as an accused appears to have committed any offence for which that person could be tried together with the accused, the court may proceed against that person. Surely, it must appear to the Court from the evidence that someone not arrayed as an accused, appears to have committed an offence. Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction u/s 319 Cr.P.C. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this Section. The expression "appears" indicates an application of mind by the Court to the evidence that has come before it and when taking a decision to proceed u/s 319 of the Code or not. With great respect, I see no reason to describe the power as an extraordinary power or to confine the exercise of it only if 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 apparently involved in the commission of an offence are tried together and none left out. I see no reason to curtail this power of the Court to do justice to the victim and to the society. It appears to me that it is left to the judicial discretion of the Court, judicially trained, to decide to proceed or not to proceed against a person in terms of Section 319 of the Code.

It has further been held in para 20 of the judgement that "the power u/s 319 of the Code is conferred on the Court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by this Section. It is a salutary power enabling the discharge of a court''s obligation to the society to bring to book all those guilty of a crime.

In view of this position, I come to the conclusion that the learned Trial Court has rightly directed to summon the accused and there is no ground to interfere in the impugned order.

Revision is devoid of merits and is liable to be dismissed at the admission stage and is hereby dismissed.