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Judgment
B. Amit Sthalekar, J—Heard Sri V.M. Zaidi, learned Senior Counsel assisted by Sri Hitesh Pachori for the revisionist and Ms. Usha Kiran, learned A.G.A. for the State-respondent.
The revisionist is seeking quashing of the order dated 27.6.2015 passed by the Additional Sessions Judge, court No. 3, Firozabad in S.T. No. 72 of 2008, State v. Ramdin and others, case crime No. C-16 of 2004, under Sections 147, 148, 149, 307, 504, 323 and 506 I.P.C., P.S. Fariha, District Firozabad whereby summons have been issued to the revisionist in view of the provisions of Section 319 Cr.P.C..
The submission of learned Senior Counsel is that provisions of Section 319 Cr.P.C. do not apply to the facts of the present case and that the order has been passed in a mechanical manner. It was further submitted that the revisionist was not even in the village on the date when the incident occurred.
Ms. Usha Kiran, learned A.G.A. on the other hand submitted that no case for interference is made out in the revision and that the order was passed strictly in compliance of the provisions of Section 319 Cr.P.C.. Under Section 319 Cr.P.C. the court has the power to proceed against a person for an offence, which he appears to have committed, if 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 along with the accused.
The court below while passing the impugned order has clearly recorded that the accused (revisionist) is named in the F.I.R.. Secondly his name appears from the statements of the witnesses that Shailendra, Pawan and Vijay Singh, accused were present on the spot where the incident occurred. Thirdly the court has negated the contention of the revisionist that the injured had not been examined on the ground that the prosecution has got examined P.W.-1 the complainant/informant Smt. Atar Shree and P.W.2 Om Pal, whose statements have been recorded in the court, and they have supported the prosecution case.
The Constitution Bench of the Supreme Court in Hardeep Singh Vs. State of Punjab and Others etc. etc., AIR 2014 SC 1400 : (2014) CriLJ 1118 : (2014) 1 JT 412 : (2014) 1 SCALE 241 : (2014) 3 SCC 92 has summed up the law as follows-:............
"Questions (i) & (iii)
Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND
Q. III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
Answer
117.1. In Dharam Pal''s case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till ''evidence'' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.
117.3. In view of the above position the word ''evidence'' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question (ii)- Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
Answer
117.4. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question (iv)- What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer
117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?
Answer
117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
Therefore, applying the law laid down by the Supreme Court in Hardeep Singh (supra) to the facts of the present case and considering that the revisionist was named in the F.I.R. and his name again figured in the statement of the witnesses who were present on the site of the incidence, I do not find any illegality or infirmity in the order of the court below dated 27.6.2015.
The revision lacks merit and is accordingly dismissed.