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Judgment
This revision is filed against the order dated 21-3-1996 in SC No.188 of 1992 on the file of the Additional Sessions Judge, Nellore.
The facts in giving rise to the filing of this revision are, briefly, as follows :
The Inspector of Police, Kavali Police Station filed charge sheet in Cr.No. 18/ 92 of Kavali Police Station alleging that the deceased Venkata Narasa Reddy and the accused worked in Leo Bar, Kavali, run by Ponnuru Ramachandra Reddy and his brother and it is further alleged that the accused murdered the deceased Venkata Narasa Reddy on the intervening night of 22/23-2-92 and the dead body was found in the Bar premises of P. Ramachandra Reddy and the case in SC No.188/1992 was committed and the learned Sessions Judge framed charges against the accused. On behalf of prosecution 9 witnesses were examined as PWs.1 to 9 and Exs. P1 to P17 were marked and the case was posted for judgment on 12-1 -1996. The Public Prosecutor filed a memo praying to recall PW7 and the said petition was allowed and the wife of the deceased was recalled and further examined and she gave evidence stating that Ponnuru Ramachandra Reddy was suspecting that her husband was having illicit intimacy with his \\\\ife and hence Ponnuru Ramachandra Reddy, Ponnuru Sreenivasulu Reddy and Shyamala Reddy and the accused murdered her husband and they influenced the police and got filed the case against the sole accused, Vanama Kallaiah and she filed copies of the representations submitted to the Police Officers, Home Minister, Chief Minister, etc. from 13-5-92 and marked under Exs. C1 to C7. She also stated that there was no ill-feelings in between the accused-petitioners and the deceased prior to his death and the deceased informed about Ramachandra Reddy suspecting him about his intimacy with his wife. Therefore, in view of the evidence of PW7 and the documents, Exs.C1 to C13, the learned Sessions Judge passed impugned order directing Ponnuru Shyamala Reddy @ Sravananda Reddy, Ponnuru Ramachandra Reddy and Kunam Sreenivasulu Reddy to be tried alongwith the sole accused and arrayed them as A2 to A4 and ordered to issue summons to them to appear before the Court on 11-4-1996 and further ordered that the proceedings in respect of A2 to A4 shall be commenced afresh and all the witnesses to be re-heard alongwith the witnesses to be cited, if any, by the police in their additional charge sheet. He also further directed the Inspector of Police to further investigate into the matter u/s 173(8) Cr.PC and file additional charge sheet, if any, within one month from the date of receipt of the order.
Aggrieved by the said order, the petitioners filed this revision.
The learned senior Counsel, Sri C. Padmnabha Reddy, submits that the petitioners were ordered to be tried along with other accused without giving an opportunity to them, hence, the order is bad in law. But the learned Public Prosecutor submitted that if the Court finds that there is prima facie material on record to proceed against any other person, who is not arrayed as an accused in the case, the Court in exercise of the powers u/s 319 Cr.P.C. can issue summons to try them alongwith other accused and hence, the question of issuing the notice before ordering summons does not arise.
Therefore, it is to be seen; on a plain reading of Section 319 Cr.PC it is clear 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. Thus the above provision does not contemplate issuance of any notice before ordering to issue summons to the persons who appears to have committed the offence to be tried alongwith other accused. It is only satisfaction of the Court that is of primary consideration for ordering to issue summons to the person who are not shown as accused, but appears to have committed the offence, and after appearance of the said persons they can show to the Court that there is no material on record to proceed against them, the Court can consider and pass appropriate orders and I am fortified by the decision P. V. Narasimha Rao v. State (CBI/SPE) 1997 (1) ALD (Crl.) 157, wherein Their Lordship held as under :
".. Having regard to the fact that the order dated July 9, 1996 is based on a prima facie opinion formed by the CMM on the basis of the evidence adduced before him and at that stage he did not hear the petitioner, it is open to the petitioner to show to the CMM that on the basis of the evidence that has been adduced in the trial no case is made out for proceeding against him u/s 319 Cr.PC and adding him as an accused and issuing summons to him in respect of offences under Sections 120B/410 IPC..."
Therefore, in view of the above decision I am unable to accept the contention of the learned Counsel for the petitioner that notice should be given before ordering to issue summons to be tried alongwith the other accused.
The learned Senior Counsel appearing for the petitioners further submits that if during the enquiry or trial, it appears from the evidence that any person not being an accused, committed the offence and he could be tried alongwith with other accused and when once the learned Sessions Judge found that there is material on record to proceed against the petitioners, the question of ordering further investigation invoking the powers u/s 173(8) Cr.PC does not arise and thereby indicating that there is no material on'' record to proceed against the petitioners and directing the police to further investigate and file additional charge sheet, if any, and the situations under which the powers under Sections 319 and 173(8) Cr.PC can be exercised are totally different and both the sections cannot be invoked simultaneously in the same proceedings. He further submitted that if there is no material on record, he ought not to have ordered to issue summons to the petitioners invoking the powers u/s 319 Cr.PC to be tried alongwith other accused and should have waited till submission of the report, as directed u/s 173(8) Cr.PC and should have taken further steps and both the directions run inconsistent to each other, and hence, the direction is illegal and unsustainable in law.
It is relevant to extract Section 319 Cr.PC and. it reads as under :
".. (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 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 hear appears to have committed.
(2) Where such person 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 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."
It is manifest from the perusal of the above provision that during course of enquiry or trial, it appears from the evidence that any person, not being the accused, committed offence for which such person can be tried together, the Court may proceed against the said person also alongwith other accused and sub-section (4) thereof prescribes that the proceedings in respect of such person shall be commenced afresh and the witnesses are re-heard, and may proceed as if, such person is an accused person, when the Court took cognizance of the offence upon which the trial or enquiry has commenced. Thus it is clear that the question of invoking Section 319 Cr.PC comes into picture if it appears from the evidence that any other person, not being the accused, committed the offence and when once the Court comes to the conclusion that there is evidence on record to proceed against such person and ordered to issue summons to the said person, the question of ordering further investigation u/s 173(8) Cr.PC may not arise and the said direction runs contra to the very intendment and purpose of Section 319 Cr.PC. If there is no sufficient material on record to proceed against the petitioners, and he suspected that they are also involved in the said offence, the learned Sessions Judge should have considered for ordering further investigation, as provided u/s 173(8) Cr. PC without passing order u/s 319 Cr.PC and once having passed an order u/s 319 Cr.PC ordering to issue summons to the petitioners to be tried alongwith other accused on record, which indicates that the Sessions Judge is satisfied that there is evidence on record to proceed against them and once having satisfied and taken steps in that direction, ordering of further investigation as provided u/s 173(8) Cr.PC is not proper and unsustainable.
Therefore, in the light of foregoing discussion, I am inclined to hold that it cannot be said that the learned Sessions Judge has committed error in ordering to issue summons to the petitioners, without giving an opportunity, to be tried alongwith the other accused, and the said order is perfectly legal; but however, the direction of the learned Sessions Judge in ordering for further investigation u/s 173(8) Cr.PC is liable to be set aside and is accordingly set aside and the learned Sessions Judge is directed to proceed with the disposal of the case in accordance with law.
The Criminal Revision case is accordingly disposed of.