Shyam Babu vs State of U.P.and others

Mrs. Saroj Bala, J.—This criminal revision is directed against the order dated 2.11.2002 passed by the IIIrd Additional and Sessions Judge, Court No. 3 Aligarh in Session Trial No. 1306 of 1999, State v. Kallu and others, whereby allowing an application moved by the prosecution under section 319 of Code of Criminal Procedure (hereinafter referred to as the Code) and summoning the revisionist and one Nahar Singh for facing trial.

The background facts are as below :

On 28.3.1999 at about 4.30 p.m. revisionist armed with a licensed gun along with coaccused armed with firearms mounted assault by opening fire at the first informant and his father. The father of the first informant sustained gun shot injuries and died at the spot. The first informant had a narrow escape. The First Information Report, was alleged against the revisionist and coaccused. After investigation the revisionist and coaccused Nahar Singh were not chargesheeted though role of firing from licensed guns was assigned to both of them. The chargesheeted coaccused were committed to the Court of Sessions. After framing of charges their trial commenced in S.T. No. 1306 of 1999, State v. Kallu and others, under sections 147, 148, 307, 302, I.P.C. The eyewitnesses Vinod Kumar (P.W. 1) and Ram Naresh (P.W. 2) in their examinationinchief supported the manner of incident as narrated in the First Information Report. The application (29 Kha) was moved by the prosecution for summoning the revisionist and coaccused Nahar Singh for facing trial alongwith coaccused. The Trial Judge allowed the said application by the impugned order.

The impugned order has been assailed on the grounds that the Court below acted illegally and with material irregularity in exercise of its jurisdiction resulting in miscarriage of justice. There is no evidence against the revisionist with regard to his complicity in the murder of first informant''s father. The revisionist was not present at the place of the incident on the date and time of commission of offence. The Court below has ignored the certificate of Smt. Ram Sakhi Katheriya about presence of revisionist at Narendra Dev Junior High School alongwith local M.L.A. and other supporters of B.J.P.

Heard Shri B.B. Paul, learned Counsel for the revisionist, learned A.G.A. and have perused the record.

The learned Counsel for the revisionist placing reliance on decision in Mohd. Shafi v. Mohd. Rafiq and another, 2007 (58) ACC 254 (SC) = 2007 (53) AIC 56 (SC). argued that, the discretion for summoning the accused at the stage of trial is to be exercised sparingly. It was urged that the Court must arrive at its satisfaction before exercising the discretion in favour of the prosecution and such satisfaction can be reached on completion of crossexamination of the witnesses.

The learned A.G.A. argued that the revisionist was named in the First Information Report and the witnesses in their examinationinchief as well as in the statement under section 161, Cr.P.C. assigned the overt act of firing from licensed gun to the revisionist and coaccused Nahar Singh.

The power under section 319 of Code can be invoked in appropriate situation. This section is extracted below :

"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 subsection (1) then

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard.

(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."

The basic requirement for exercising power under section 319 of Code is that it should appear to the Trial Court from the evidence adduced at the trial that some other person who is not arraigned as an accused had committed an offence for which he could be tried together with the accused already facing trial.

In the case of Michael Machado v. Central Bureau of Investigation, 2000 (40) ACC 795 (SC) the Apex Court construing the words "the Court may proceed against such person" appearing in section 319 of the Code, held that the power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. It was further held that 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. The Court while examining an application under section 319 of the Code, has also to bear in mind that there is no compelling duty on the Court to proceed against other persons.

In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, 1983 (20) ACC 50 (SC) = 1983 (1) SCC 1 it was observed by the Apex Court as below :

"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 alongwith 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 Lok Ram v. Nihal Singh and another, 2006 (55) ACC 585 (SC) = 2006 (41) AIC 44 (SC) the Apex Court dealing with power of Court under section 319 of Code has held thus :

"Power under section 319 of the Code can be exercised by the Court suo moto 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......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 witnesses given in Court."

The accusedrevisionist was left out of the chargesheet by the Investigating Officer on the basis of affidavits filed by the workers of B.J.P. party and the certificate of M.L.A. stating therein that the revisionist was present at Narendra Dev Junior High School between 3 p.m. to 5 p.m. on the date of the incident. The revisionist was named in the First Information Report and role of firing from licenced gun was assigned to him. The First Informant Vinod Kumar (P.W. 1) in his examination in chief supported the facts unfolded in the First Information Report and stated about the complicity of the revisionist and coaccused Nahar Singh. The another eyewitness Ram Naresh (P.W. 2) categorically stated in his examinationinchief that the revisionist armed with licensed gun alongwith coaccused opened fire at the victim and first informant. The witness Ram Naresh is alleged to have stated in his previous statement under section 161 Cr.P.C. that revisionist and coaccused Nahar Singh were falsely implicated. The First Informant and eyewitness Ram Naresh are yet to be crossexamined on behalf of the accused facing trial. The Apex Court in the case of Mohd. Shafi v. Mohd. Rafiq and another (supra) has held that the Court before exercising its discretionary jurisdiction in terms of section 319 of the Code must arrive at its satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted and such satisfaction can be arrived at upon completion of crossexamination of witnesses. The revisionist and coaccused Nahar Singh have been summoned by the Trial Court before the completion of crossexamination of witnesses. P.W. 1 and P.W. 2. In view of the above decision of the Apex Court the revisionist and coaccused should have been summoned after conclusion of crossexamination of the witnesses by the accused facing trial.

In view of what has been stated above the Trial Court committed illegality by summoning the revisionist before the completion of depositions of P.W.1 and P.W.2. The revision is allowed. The impugned order dated 2.11.2002 is set aside. The application moved by accused facing trial. The trial is pending since long the Trial Court is directed to expedite the trial.

Revision Allowed.