Taj Mohammad & Another vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

The present criminal revision has been preferred by the revisionists, wherein, they have questioned the order dated 22.06.2019 as passed by the 4th Additional Sessions Judge, Haridwar, in Sessions Trial No. 73 of 2013 'State vs. Naushad & Others', whereby, the Sessions Court has allowed the application preferred by the respondent no. 2, i.e. the complainant under Section 319 of Cr.P.C. and has summoned the revisionists to face the trial.

The brief facts, which have emerged from the documents, which has been brought on record are that an FIR was instituted being FIR No.233/2015, which was registered as Case Crime No. 278 of 2015, alleging the commission of an offence under Sections 147, 148, 149, 302, 323 & 324 of IPC. In the FIR thus lodged on 12.11.2015 in the list of the accused persons the name of the present revisionists appears as to be one of those accused persons, who were involved in the commission of the said offence had major role to play in it. However, the investigation as carried by the Investigation Officer in pursuance to the said FIR dated 12.11.2015, the Investigating Officer has submitted a chargesheet against the accused persons being Chargesheet No. 2/2016 dated 05.01.2016, and as a consequence of the submission of the chargesheet, name of the present revisionists have been excluded from the list of the accused persons, who are shown to be involved in the commissioning of the said offence.

On submission of the chargesheet before the Sessions Court, the cognizance has been taken on the same and the trial has commenced as Sessions Trial No. 73 of 2016 'State vs. Naushad'. While the Sessions Trial was pending consideration an application has been filed by the complainant on 26.02.2019, wherein, he has been prayed for that in view of the statement, which has been recorded by the injured Salman under Section 161 of Cr.P.C. he has shown the involvement of Farman, who is said to have been equipped with lathi and Mr. Taj Mohammad, who is said to be equipped with Ballam (spear), who had been otherwise named in the FIR, but they were not included in the chargesheet.

Consequently, the argument which has been extended by the learned counsel for the revisionists is that the provisions of Section 319 of Cr.P.C. could not have been invoked on an application, which has been submitted by the complainant on 26.02.2019. In order to answer the said question, which has been raised by the learned counsel for the revisionists, it would be essential for the Court to refer Section 319 of Cr.P.C., which reads as under:

"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 sub-section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, 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."

On its simplicitor reading of the provisions contained under Section 319 of Cr.P.C., the said provision grants the liberty to the Court it may at any stage of the proceedings, i.e. including the enquiry or a trial of an offence, if it appears to the Court from any material, which is brought before it, that the person is required to be summoned by invoking Section 319 of Cr.P.C. or has got even a slightest role to play in the commission of the offence, the Court can always summon the person to assist the Court to come to a logical conclusion with regard to the commission of the said offence exercise of powers under Section 319 of Cr.P.C. is the prerogative of the Trial Court depending upon the circumstances prevailing in each case.

In the case at hand what has chanced is that on considering the application under Section 319 of Cr.P.C. as preferred by the complainant, the learned Sessions Court by an order dated 22.06.2019, had allowed the application and as a consequence thereto, the Court has passed an order of summoning the revisionist to be tried for their participation in the Sessions Trial No. 73 of 2016 'State vs. Naushad & Others'.

Another limb of argument of the learned counsel for the revisionist is that for the purposes of invoking the powers under Section 319 merely on consideration of the statement recorded under Section 161 of Cr.P.C. as it happened in the instant case that where Salman has recorded a statement pertaining to the involvement of the aforesaid revisionist in commission of the said offence could not be read for the purposes of invoking Section 319 of Cr.P.C. because the statement under Section 161 of Cr.P.C. cannot be taken as to be the sole basis and foundation to summon the present revisionist until and unless the statement recorded under Section 161 of Cr.P.C. is put to test of cross-examination during the course of trial.

In an answer to the argument as extended by the learned counsel for the revisionist Mr. Bohra, the learned A.G.A. has made reference to a latest judgment reported in AIR 2019 SC 2168 'Rajesh & Others vs. State of Haryana', wherein, the Hon'ble Apex Court was seized with almost an identical set of circumstances where the accused persons were sought to be summoned by invoking the provisions as contained under Section 319 of Cr.P.C., merely on the basis of the statement of the witnesses, which was recorded before the Court below under Section 161 of Cr.P.C. and the summoning has been held to be valid even prior to the cross-examination of the aforesaid witnesses. Rather in fact the ratio as propounded therein and particularly having reference to paragraph 7 to 9 of the said judgment, the Hon'ble Apex Court has held that in view of the language used under Section 319 of Cr.P.C. where the power has been vested with the Court to summon the witnesses it can be exercised merely when the Court comes to a conclusion of his alleged involvement or based on the material, which is placed before it when it appears to the Court that there is even the remotest possibility of involvement of the person sought to be summoned under Section 319 of Cr.P.C., the Court can exercise its power and the Court is not supposed to wait for the cross-examination of the witnesses before summoning the person concerned, and thus while interpreting the impact of the judgment rendered in Hardeep Singh's case reported in AIR 2014 SC 1400 'Hardeep Singh vs. State of Punjab & Others' the finding, on which reliance has been placed with are quoted hereunder:

"7. The Constitutional mandate under Articles 20 and 21 of the Constitution of India, 1950 (hereinafter referred to as the 'Constitution') provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to the society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under theCr.P.C. indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty.

Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319Cr.P.C."

Rather in case if the said ratio as laid down by the Hon'ble Apex Court is taken into consideration, the Apex Court has drawn a conclusion that for the purposes of invoking the power under Section 319 of Cr.P.C by the Trial Court it could be done even on the basis of the statement which has been made in the examination-in-chief of the witnesses concerned that itself would be sufficient for summoning the person where there is a slightest doubt about his involvement in the commissioning of the offence. The instant case rather stands on a better footing.

Apart from the fact that the injured person while recording his statement under Section 161 of Cr.P.C. has named the revisionist of their involvement in the commission of the offence coupled with the fact that if the FIR is scrutinized, if the complainant too while registering the FIR on 12.11.2015 had named the revisionist as to be the accused person involved in the commission of the said offence and this Court is of the view that apart from the statement of the injured person made under Section 161 of Cr.P.C. the very fact that the revisionists had been named by the complainant in the FIR dated 12.04.2015 that itself would satisfy the basic ingredients/parameters as provided under Section 319 of Cr.P.C., which grants ample of power to the Trial Court for the purposes of summoning of the person, who in accordance with the opinion of the Court appears to be a person, who has slightest possibility of being involved in the commission of the offence.

The argument, which has been extended by the learned counsel for the revisionist to the effect that the learned Trial Court while passing the order impugned in the revision on 22.06.2019 had not recorded its satisfaction, which in the light of the argument as extended by the learned counsel for the revisionists under the pretext of the ratio laid down in paragraphs 105 and 106 of Hardeep Singh's case as reported in (2014) 3 SCC 92 'Hardeep Singh vs. State of Punjab & Others' has contended that summoning of a person is a serious issue and when the Trial Courts would exercise its exclusive discretionary power under Section 319 of Cr.P.C. to summon an accused person who is involved in the commission of the offence. The Court prior to passing of the order has had to consider and record the reasons for summoning a person. Paragraphs 105 and 106 are quoted hereinbelow:

"105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."

In the case at hand even the impugned order is scrutinized in precision, the learned Trial Court while considering the statement of the co-accused person, who was examined before the Court below and has recorded a statement under Section 161 of Cr.P.C, coupled with the fact that the learned Trial Court has considered the fact that even the fact that the revisionist has been named in the FIR, which was lodged against them and they had been shown to be equipped with weapons for the purposes of commission of the crime as narrated in the FIR, this Court is of the view that the spirit laid down by the judgment of the Hon'ble Apex Court that the Trial Court to consider the material evidence available on record and has to assign the reasons prior to passing of the orders of summons has been duly recorded by the learned Trial Court as the learned Trial Court while passing the order has considered the statement recorded under Section 161 of Cr.P.C. and has also recorded the reason that the Court has drawn a conclusion and for which necessity to summon the revisionists on the ground necessarily because apparently from the contents of the FIR and from the fact that they have been named therein, the Court has drawn a conclusion, that, that itself would amount to be a sufficient reason for the Trial Court to summon the accused person.

Learned counsel for the revisionist during the course of argument has placed reliance on a judgment, which has been rendered by the Hon'ble Apex Court in the case of 'Labhuji Amratji Thakor Other vs. State of Gujarat'. Particularly he has drawn the attention of this Court to the contents of paragraph 9 of the said judgment, wherein, the Hon'ble Apex Court was drawing the conclusion pertaining to summoning of the accused persons in relation to the commission of the offence under Sections 363, 366 and Section 3 to be read with Section 4 of the POCSO Act, and while considering the merit of Section 319 of Cr.P.C., the Hon'ble Apex Court has held that since in accordance with the ratio laid down in paragraph 105 of Hardeep Singh's judgment, it is a discretionary power which has been vested with the Magistrate and wherever the Magistrate comes to a conclusion on considering the evidence and the statement recorded before the Court below that there happens to be even a slightest possibility of involvement of the accused person, he can be summoned. For the purposes of brevity, the content of paragraph 9 of the aforesaid judgment is quoted hereunder:

"9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is "the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction." The present is a case, where the trial court had rejected the application filed by the prosecution under Section 319 Cr.P.C. Further, in the present case, the complainant in the F.I.R. has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure."

The judgment as rendered by the Hon'ble Apex Court as reported in 2019 has rather widened the scope of exercise of power under Section 319 of Cr.P.C. for the analogy which has been laid down in paragraph 7 and 8 of the said judgment and, hence, considering the reasons which has been assigned by the Trial Court in the impugned order and also considering the ratio which has been laid down by the Hon'ble Apex Court in the judgment referred above, this Court is of the view that for the purposes of exercising the power under Section 319 of Cr.P.C. there is no specific legal requirement that the application for summoning of an accused person has to flow through the prosecution only because in view of the language used or merely an inference which can be drawn by this Court based on the evidence that the Court can exercise the power under Section 319 of Cr.P.C.

Thus, in view of the reasons which has been assigned above, and considering the fact that the Trial Court has already given detailed reasons of the involvement of the present revisionists in commissioning of the offence, who are named in the FIR and role of their involvement has been specifically assigned, the Court does not find any error, which has been committed by the learned Trial Court while passing the impugned order.

Consequently, the revision fails and is, accordingly, dismissed.