Ram Singh and Others vs State of U.P.

Naheed Ara Moonis, J.—The case is called out in the revised list. No one has appeared on behalf of revisionists to press this revision. The learned A.G.A. for the State is present.

The learned A.G.A. has contended that, since the matter is of the year 2001 and has not yet been admitted, therefore, no useful purpose would be served to keep the matter pending, the revision has been filed against the summoning order, whereby the revisionists have been summoned u/s 319, Code of Criminal Procedure. therefore, the case may be decided finally.

I have heard the learned A.G.A. on behalf of State and perused the record.

This revision has been preferred by the revisionists against the order dated 22.6.2001, passed in Session Trial No. 56 of 1999, State v. Charan Singh and Ors. u/s 307, I.P.C. whereby the applicants have been summoned to face the trial.

According to the prosecution case the complainant had lodged the first information report on 30.8.1998 under Sections 147, 148 and 307, I.P.C. at about 4 p.m. with the allegation that when the complainant and his brother were ploughing their field, all of sudden accused persons Ram Singh, Asha Ram, Rajesh, Charan Singh and Devendra Singh encircled both of them and at the instigation of Ram Singh, Charan Singh fired from his pistol but the fire was missed, at this Devendra Singh had assaulted with his axe with intention to kill the complainant''s brother and Ram Singh had also assaulted with lathi. The brother of the complainant was not in a position to escape and as such he fell down and sustained injuries. It was also mentioned in the first information report that this incident has taken place on account of enmity. The injured Krishna Swaroop had sustained three injuries, wherein two injuries whereof sharp edged weapon. During the investigation the materials were collected by the Investigating Officer and thereafter submitted the charge-sheet against two persons only and exonerated the other accused persons (the present revisionists) as the Investigating Officer did not find their complicity in the case.

The prosecution had moved an application u/s 319, Code of Criminal Procedure stating therein that the injured of the present case was attacked by five persons against whom the F.I.R. was lodged, but the Investigating Officer has submitted charge-sheet only against two persons and exonerated three accused persons, for which there is no plausible reason has been given. The statement of the victim before the Court on oath has given evidence against all the accused persons, therefore, they are also liable to be summoned to face the trial. The said application was controverted on behalf of accused persons with the objection that the Investigating Officer after recording the statement of the witnesses, arrived at the conclusion that, Charan Singh and Ram Singh were responsible in respect of the alleged incident, but there is no evidence was found against three other accused (who are the present revisionists) and as such the charge-sheet has been submitted only against the co-accused Charan Singh and Ram Singh. It was further contended that there is discrepancy in the statement of injured which was given before the Investigating Officer from the evidence recorded before the Court. From the perusal of record, it appears that the injured Krishna Swaroop who was an eye-witness of the case in his examination-in-chief had stated that Devendra Singh, Charan Singh, Ram Singh, Asha Ram and Rajesh Singh appeared suddenly, Ram Singh was armed with lathi, Rajesh Singh and Asha Ram were having axe in their hands and Charan Singh was having a country made pistol. On the exhortation of Ram Singh, Charan Singh had fired but it was missed, thereafter, Devendra Singh had assaulted with axe. Thus, the injured witness Kirshna Swaroop has specifically deposed against all the accused persons before the trial court, but in his statement before the Investigating Officer he has only stated about the active participation of Devendra Singh and Charan Singh, thus it was tried by the defence to show that there is discrepancy in between the statement given before the Investigating Officer and the examination-in-chief recorded before the court below, hence, they were illegally summoned by the court below.

In my considered view the accused persons cannot get benefit of any such discrepancy because it is the statement before the Court comes within the purview of ''evidence'' as mentioned u/s 319, Code of Criminal Procedure. The trial court has not committed any error in taking cognizance against the accused revisionist as the injured witnesses have specifically mentioned their names in the F.I.R. as well as in his statement recorded before the Court. In this regard the observations made by the Apex Court in Lok Ram v. Nihal Singh and Anr. LV (2006) ACC 585 : 2006 (2) ACR 1711 (SC), about the scope of Section 319, Code of criminal Procedure is necessary to be mentioned here:

On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial alongwith other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge-sheeted, can also be added to face the trial. The trial court can take such step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision in Sohan Lal and others Vs. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.

Power u/s 319 of the Code can be exercised by the Court suo motu or on an application by someone, including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word ''evidence'' in Section 319 contemplates that evidence of witnesses given in Court. Under Sub-section (4)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub-section (4)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.

In view of the aforesaid legal aspect and from the perusal of judgment and order under challenge itself, I find no illegality in the order passed by the court below. Since, no interim order has been granted in this revision for challenging the said order, therefore, there is every hope that the trial must have been proceeded against the revisionists also alongwith the charge-sheeted accused persons, therefore, I am not inclined to interfere with the order dated 22.6.2001, passed in Session Trial No. 56 of 1999, State v. Charan Singh and Ors. by the court below.

The revision lacks merit and it is hereby dismissed.

Office is directed to communicate this order to the court below to proceed with the case in accordance with law.