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Judgment
Arvind K. Tripathi, J.—The present Criminal Revision has been filed on behalf of the applicants against the judgment and order dated 7.8.2008 passed by the Special Judge, SC/ST Act, F.T.C. No. 11, Banda u/s 319 Cr.P.C. summoning the applicants under Sections 323 504 506 I.P.C. and 3(1)(1) SC/ST Act, PS. Banda, District Banda.
Heard learned Counsel for the applicants and learned AGA and perused the record.
Learned Counsel for the applicants contended that on the application u/s 156(3) Cr.P.C. filed against the revisionist and others accused persons learned Magistrate directed for registration of the First Information Report and investigation of the case. After the investigation, the investigating officer submitted the charge sheet against the co-accused Naimuddin and Rajendra on 7.2.2007 and involvement of the applicants had been found false. After the charges were framed PW-1 was examined on 8.5.2008 and in his examination in chief he has named the revisionist regarding their participation in the aforesaid case along with the other accused.
Thereafter on the application moved by learned DGC u/s 319 Cr.P.C. the applicants have been summoned to face the trial in Special Trial No 99/07 under Sections 323 504 506 I.P.C. and u/s 3(1)(10) SC/ST Act, PS Bisanda, District Banda.
Learned Counsel for the applicants challenged the summoning order dated 7.8.2008 u/s 319 Cr.P.C. only on the ground that the trial court had committed error in summoning the applicants before the cross examination.
According to him only after the cross examination and recording the satisfaction regarding probability and likelihood of the conviction the applicants might have been summoned. Hence on that ground the impugned order is illegal and without jurisdiction. In support of the argument learned Counsel for the applicants has relied upon the judgment passed by the Apex Court in the case of Mohd. Shafi v. Mohd. Rafiq and Anr. reported 2007 (2) JIC 490 .
To consider the aforesaid argument first the provision of Section 319 Cr.P.C. has to be considered, hence the same is quoted below:
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.
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.
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.
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 the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
From the aforesaid Section it is crystal clear that u/s 319 Cr.P.C. there is no provision for hearing the accused who has been proposed to be summoned at any stage of inquiry and trial. If there is evidence against a third person against whom no charge sheet has been filed and prima facie commission of offence is disclosed from the evidence and there is possibility and likelihood of the conviction then that person can be summoned u/s 319 Cr.P.C. to face the trial.
So for as the case of Mohd. Shafi is concerned, the fact of the aforesaid case is entirely different. In his examination-in-chief PW-1 has alleged that the incident had taken place in his essence and the appellant had taken part in the incident. An application was filed summoning Mohd. Shafi u/s 319 Cr.P.C. only on the basis thereof in view of the fact that the learned Sessions Judge refused to accede to the said prayer stating:
File is taken up. Statement has been perused in regard to the application u/s 319 Cr.P.C. On perusal of the statement of the witness PW-1 Rafiq, uptil now witness''s chief examination is only done. The witness had stated the incident has taken place in his presence and has further stated to reach the spot on hearing the noise. On going through statement given u/s 161 Cr.P.C. of the witness, it is found to be recorded in Paper No. 1 dated 10.11.2005 that he reached the spot after the incident as stated by this witness. And accused Karimullah is said to be the incident doer. Hence, the application is not acceptable at this stage. The application u/s 319 Cr.P.C. is being dismissed at this stage.
In that case after rejection of the application of u/s 319 Cr.P.C. the application was filed before the High Court of Judicature at Allahabad u/s 482 Cr.P.C. which was allowed against which criminal appeal was preferred before the Apex Court. In view of the aforesaid fact the learned Sessions Judge has clearly mentioned that the witness had stated that the incident has taken place in his presence and had further stated that he reached on the spot on hearing noise, hence at that stage the trial court was not satisfied for summoning Mohd. Shafi. Since the trial court found that the evidence was not acceptable since there was no even remote possibility and likelihood of conviction hence the court had simply rejected the application u/s 319 Cr.P.C. at that stage.
In view of the aforesaid fact the Apex Court has observed that before the trial court exercises its discretionary jurisdiction in terms of 319 Cr.P.C., it must arrive at its satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.
The Apex Court has further observed that such satisfaction can be arrived at interin alia upon the completition of the cross examination of the said witness. For the said purpose the court concerned might also look to consider the other evidence. In that case, if the trial court thought that the matter should receive his due consideration only after the cross examination of the witnesses is over, no exception thereafter would be taken far less at the instance of a witness and when the State was not aggrieved by the same. Accordingly the order of the High Court was set aside by the Apex Court.
In case of Michael Machado and Anr. reported in 2000 SCC 609 the Apex Court held that the basic requirement for invoking the power u/s 319 Cr.P.C. is that it should appear from the evidence collected during trial that some other person has committed an offence for which he could be tried together. The court must have reasonable satisfaction from the evidence already collected to the effect that the other person has committed an offence and for such offence he should be tried along with the other accused already arraigned. However, it was observed by the Apex Court that discretionary power so conferred should be exercised only to achieve criminal justice. Para 11 and 12 of the aforesaid judgment is herein-below quoted:
(11) The basic requirements for invoking the above Section is that it should appear to the court from the evidence collected during trial or in the inquiry 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 is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as be tried along with the already arraigned accused.
(12) But even then, what is conferred on the court is only a discretion as could be discerned from the words " the court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.
In the case of Anil Singh and Anr. v. State of Bihar and Ors. reported in 2008 (1) SCC 708 while considering the power u/s 319 Cr.P.C. and after considering the several judgments, the Apex Court held that the court at the stage of Section 319 Cr.P.C. might not enter into the merit of the matter. Its opinion in the nature of things could be a prima facie one. But, the court must also consider that the innocent persons might not be prosecuted. It was further held that the court is not bound by the opinion of the Investigating Officer but it requires to apply the tests on the touchstone of the materials on record and the balance is required to be maintained. The power under the aforesaid Section should not be exercised in a mechanical manner only because some evidence has been brought on record. The court is required to consider whether any case has been made out in exercise of the extraordinary jurisdiction by the court keeping in view of the fact as to whether the prosecution would be able to bring home the charge. The para 20 and 21 of the aforesaid judgment are quoted herein below.
(20) court''s power, as noticed hereinbefore, is not disputed. The learned Sessions Judge, however, as has been observed by the High Court, proceeded on a wrong premise in holding that as no charge sheet was filed as against the appellants by the police the same was not sufficient to refuse to issue summons. The question, which was necessary to be posed in view of the propositions of law as noticed supra, was as to whether any case has been made out for exercise of extraordinary jurisdiction by the court keeping in view the fact as to whether the prosecution would be able to bring home the charge. If the court comes to the conclusion having regard to the materials on record, that the prosecution ultimately may not be able to bring home the charge as against the persons against whom processes were to be issued, it would decline to do so. The court must also take into consideration the fact as to whether an appropriate case has been made for exercise of the extraordinary jurisdiction.
(21) It may be true that the court at that stage may not enter into the merit of the matter. Its opinion in the nature of things would a prima facie one. But the court must also consider that the innocent persons may not be prosecuted. The court is not bound by the opinion of the investigating officer. It is required to apply the tests on the touchstone of the materials brought on record. A balance is required to be maintained. The court must pose unto itself a right question. It is required to secrutinise the materials more closely. A power u/s 319 of the Code of Criminal Procedure is not to be exercised in a mechanical manner. Only because some evidence has been brought on record, the same by itself may not be a ground to issue processes.
In the case of Rajendra Singh v. State of U.P. and Anr. reported in (2007) 7 SCC 378 it was held by the Apex Court that if the evidence tendered in the course of trial shows mat any person not being accused has committed any offence for which he should be tried together with the accused, he could be summoned to face the trial even though he might not have been charge sheeted by the investigating agency or might have been discharged at a earlier stage. Para 6, 7 and 11 of the aforesaid judgment are quoted herein-below:
(6) It is, therefore, clear that if the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been discharged at an earlier stage.
7) The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer u/s 161 Cr.P.C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement u/s 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to Sub-section (1) of Section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime.
(11) Having considered the submissions made by learned Counsel for the parties, we are of the opinion that the statements of the witnesses u/s 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea alibi can be recorded by tie High Court for the first time in a petition u/s 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence adopted by the High Court is clearly is illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Day a Singh has also no merits. The question as to whether an order passed u/s 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh and it was held as under in para of the Report: (SCC pa 743)
The intention of provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatory to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross examination of the newly added accused is the mandate of Section 319(4). The words ''could be tried together with the accused'' in Section 319(1), appear to be only directory, ''Could be'' cannot under these circumstances be held to be ''must be''. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order u/s 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added persons appears to have committed the offence resulting in an order for his being brought before the court.
In the case of Rakesh and Another Vs. State of Haryana, it has been clarified by the Apex Court that it is not mandatory to cross examine the witnesses before summoning the accused in exercise of power u/s 319 Cr.P.C.
(13) Hence, it is difficult to accept the contention of the learned Counsel for the appellants that the term '' evidence'' as used in Section 319 of Criminal Procedure Code would mean evidence which is tested by cross examination. The question of testing the evidence by cross examination would arise only after addition of the accused. There is no question of cross examining the witness prior to adding such person as accused. Section 319 does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross examining the witness who has deposed against him and thereafter deciding whether such persons is to be added as accused or not. Word ''evidence'' occurring in Sub-section is used in comprehensive and broad sense which would also include the material collected by f the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime.
(14) Lastly, learned Counsel further submitted that power u/s 319 is an extraordinary power and should be used very sparingly and only for some compelling reasons for taking cognizance of other persons against whom action has not been taken. For this purpose, he referred to Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, In our, view, there cannot be a dispute that power u/s 319 is to be sparingly used. But that would not mean that when a prosecutrix names three persons who were involved in the serious crime are not to be added as accused by exercise of such power.
In the case of Lok Ram Vs. Nihal Singh and Another, the Apex Court held that the trial court has undoubted jurisdiction u/s 319 Cr.P.C. add any person not being accused before it to face the trial along with the other accused person. If the court was satisfied at any stage of the proceeding on evidence itself that the persons who have not been arrayed as accused, should face trial. The power u/s 319 Cr.P.C. can be exercised by Court sou-motu or on an application by some one.
In the court is satisfied that any person other than the accused has committed an offence, he is to be tried together with the accused. Even if such person was initially named in the First Information Report as accused but no charge sheet has been filed against him, can also be summoned u/s 319 Cr.P.C. to face the trial. Paragraph 10 and 11 of the aforesaid judgment read as under:
(10) 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 along with the 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 FIR as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it an not on the basis of the material available in the charge sheet or the case diary because such materials contained in the charge sheet or case diary do not constitute evidence. Of course, as evidence from the decision in Sohan Lal v. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.
(11) Power u/s 319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the 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 the evidence of witness given in court. Under Sub-section (4)(1)(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)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added f accused is concerned.
In view of the aforesaid discussion it is clear that the basic requirement of Section 319 Cr.P.C. is that the court must have reasonable satisfaction from the evidence collected during inquiry or trial to the fact that some other persons against whom no charge sheet have been submitted, had committed an offence and for such offence he should be tried along with those accused who have been charge sheeted.
The aforesaid power, by the trial court, no doubt should be exercised sparingly and that should be exercised only to achieve criminal justice. If there is even no remote possibility or likelihood of conviction, the court will refuse to exercise the power.
There is no compelling duty of the court to proceed against the other persons. Merely on the basis of the suspicious of the involvement in the offence, might not be enough, to exercise the power, for summoning the other person u/s 319 Cr.P.C. unless there is prospect of the conviction. If from the evidence collected during inquiry or trial prima facie commission of offence is disclosed against other person then after satisfaction the trial court in exercise of judicial discretion can summon the other person, u/s 319 Cr.P.C., to face the trial along with other accused.
In view of the aforesaid fact there is no illegality in the impugned order dated 7.8.2008 passed by the Special Judge, SC/ST Act. Banda exercising power u/s 319 Cr.P.C. to face the trial.
Accordingly the present revision has no force and is rejected.
However, in view of the aforesaid facts and circumstances of the case it is directed that if the applicants appear before the court within four weeks from today and apply for bail, the same Shall be considered and disposed of expeditiously without Unreasonable delay after after affording an opportunity to the prosecution.