Soniya and Others vs State Of U.P. and Another

Hon''ble Naheed Ara Moonis, J.—Supplementary affidavit filed today is taken on record. Heard the learned counsel for the revisionists, the learned A.G.A. and perused the record.

The instant revision has been filed challenging the order dated 2.12.2011, whereby the revisionists have been summoned by the Additional District 7 Sessions judge, Court No. 13, Ghaziabad, under Sections 367, 326, 307/34 IPC, by allowing the application u/s 319 Cr.P.C. by the prosecution in Sessions Trial No. 1327 of 2011.

The prosecution case in nutshell is that a first information report was lodged on 12.2.2011 by the respondent no. 2, that the revisionists and other accused persons, named in the first information report had taken his son Nadeem on 11.2.2011 on the pretext of dance, but he was got drunk by the accused persons and his private part was amputated by him and was thrown at a pulia, where he was found on 12.2.2011, thereafter the first information report was registered. After registration of the report the police came in action and investigated the case and the charge sheet was submitted only against Sartaj, Sajid and Dr. Nabi Mohammad, exonerating the accused revisionists. After cognizance the charge sheeted accused persons stood for trial, where the statement of opposite party no. 2, Smt. Salma and the victim Nadeem as P.W.1 and 2, were recorded who had stated about the complicity of the accused-respondents, who have been illegally exonerated by the police during investigation, though they have been specifically named in the first information report, and as such the opposite party no. 2 moved an application u/s 319 Cr.P.C. to summon the revisionists under Sections 367, 326, 307/34 IPC. The court below after going through the statements of P.W.1, Smt. Salma (complainant) and P.W.2 Nadeem (victim) found sufficient evidence that prima facie offence is made out against them in the commission of aforesaid offence and as such summoned the revisionists to face the trial under Sections 367, 326, 307/34 IPC.

The contention of the learned counsel for the revisionists is that the order passed by the court below, summoning the revisionist is manifestly illegal and erroneous as against the provision of Section 319 Cr.P.C. The order has been passed mechanically summoning the revisionist to face the trial. The court below only by going through the case diary, relying upon the statements of the victim and complainant, arrived at the conclusion that prima facie offence is made out against the revisionists. The discretion u/s 319 Cr.P.C. has to be exercised very sparingly only when the court concern is satisfied that the offence has been committed by the accused. The court below has acted mechanically by placing reliance that the evidence on record is sufficient to summon the accused revisionists without arriving at its own satisfaction that there is great likelihood of their conviction.

Learned counsel has relied upon the recent decision on this point in the case of Sarojben Ashwinkumar Shah Vs. State of Gujrat, 2011 (74) ACC 951 (SC) and has contended that the court below has completely giving go by the guidelines provided in the case and has arrived at the conclusion that the prima facie offence is made out against the revisionists. In sub para iv of paragraph 16 it is specifically mentioned that, the Court cannot add any person merely on the basis of material available in the charge sheet or in the case diary, but only on the evidence led before the Court, and in view of this, the order has been passed by the court below considering the material in the case diary including FIR and statements u/s 161 Cr.P.C. which he could not have done. No satisfaction has been recorded that the revisionists were also involved in the commission of offence, therefore, the order passed by the court below is unsustainable in the eye of law and contrary to the Apex Court''s judgments, hence liable to be quashed.

Per contra the learned A.G.A. has supported the impugned order by contending that the court below has taken into consideration the statements of the victim and complainant and found that there was sufficient evidence with regard to the involvement of the accused revisionists in the offence. There is no infirmity or illegality warranting any interference by this court.

I have considered the submission of the learned counsel at bar. Before considering the arguments the provision in respect of summoning the accused u/s 319 Cr.P.C. is being reproduced below;

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 person when the court took cognizance of the offence upon which the inquiry or trial was commenced.

From the perusal of the aforesaid provision to summon any other person other than accused who are facing trial is an extra ordinary power conferred on the court which is no doubt be exercised very sparingly and with caution and only when the concern court is satisfied that some offence has also been committed by such person. This power has to be essentially exercised only on the basis of the evidence. The term ''evidence'' as used in section 319 Cr.P.C. 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. The word evidence mentioned in section 319(1) includes the material collected by the investigating officer and the material or evidence which comes before the court on the basis of which court can prima facie comes to the conclusion that the person who has not been arrayed before is involved in the commission of the crime. The trial court had arrived at its satisfaction on the basis of the examination in chief of the witnesses. Different standards are required to be applied at different stages.

The Apex court in the case of Sarojben Ashwin Kumar Shah Vs. State of Gujarat and another 2011 (74) ACC 951 has diluted the principles laid down in Michael Machado and another Vs. C.B.I. and another 2000 (4) ACC 795 (SC) and reviewed the case law in respect of summoning an accused u/s 319 Cr.P.C. and has laid down parameters in this regard. In para 16 their Lordships of the Apex Court has held as under :-

The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this court is this;

(i) The Court can exercise the power conferred on it u/s 319 of the Code suo motu or on an application by someone.

(ii) The power conferred u/s 319 (1) applies to all Courts including the Sessions Court.

(iii) The phrase "any person not being the accused" occurring in section 319 does not exclude from its operation an accused who has been released by the police u/s 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court.

(iv) The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word ''evidence'' in Section 319 contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the Court must be satisfied that a case for addition of persons as accused, not being the accused before it has been made out on the additional evidence let in before it.

(v) The power conferred upon the Court''s although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.

(vi) The Court while exercising its power u/s 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

(vii) Regard must also be had by the Court to the constraints imposed in Section 319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.

In the instant case, from the perusal of the order impugned itself, it is evident that the court below has taken the assistance of the case diary only for a limited purpose, merely to find out whether the statements of the complainant and victim are consistent with the prosecution case or not, and as to whether he should exercise his power u/s 319 Cr.P.C. or not. The court below has arrived at the conclusion that the revisionists are also involved in the offence, not solely on the basis of materials contained in the case diary, but on the basis of evidence led before the court, and arrived at satisfaction that there is material evidence against them to face the trial. Role of each accused cannot be adjudged at the stage of summoning u/s 319 Cr.P.C., cognizance of offence u/s 34 IPC has also taken which is meant for such contingencies. The trial court was satisfied that that there exists a possibility that the accused persons so summoned in all likelihood would be convicted as there was sufficient evidence against them. Hence, the order cannot be quashed for the reason that the trial court has looked into the case diary.

In view of the prolix discussions rendered in Sarojben (supra) the law has travelled further and the theory of probability in regard to summoning of an accused that there are chances of conviction stands diluted and the requirement has been found to be that there must be satisfactory and prima facie evidence to summon the accused u/s 319 Cr.P.C.

From the aforesaid proposition of law the order passed by the court below suffers from no illegality. I find that prima facie satisfaction expressed by the court below cannot be doubted at this stage and the evidence led against the revisionists certainly connect them with the crime. This court does not find any justifiable ground to set aside the impugned order. The revision is dismissed sans of having any merit. However, the revisionists are directed to surrender before the court below within 30 days from today and apply for bail, which shall be heard and disposed of by the court concerned, if possible, on the same day in view of the law laid down in Smt. Amrawati and another vs. State of U.P. 2005 Cr.L.J. 755, which has also been approved by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). The court below is expected to follow the procedure as prescribed u/s 319(4) Cr.P.C. Any observation on merits of case would not effect the mind of the trial court.