Hon''ble Manoj Misra, J.@mdashHeard Sri Dharmendra Singhal, Learned Counsel for the revisionist, Sri Akhilesh Srivastava, Learned Counsel for the persons sought to be added as accused and learned A.G.A. for the State.
By this revision application, the revisionist has challenged the order dated 17.5.2012 passed by the learned Additional Session Judge, Court No. 12, Aligarh, in S.T. No. 496 of 2007, whereby the application, u/s 319 Cr. P.C. to add Sattoo, Kunwarpal and Ramjeet as additional accused to face trial, under Sections 307 and 504 I.P.C., has been rejected.
The facts, in brief, are that a First Information Report was lodged by the revisionist against Girraj, Sattoo, Kunwarpal Singh and Ramjeet Singh with respect to incident of firing at Kunwarpal Singh son of Indrajeet Singh in which Kunwarpal Singh was injured. Pursuant to the First Information Report, investigation was carried out and the police laid charge-sheet only against Girraj. During the course of trial, statement of the first informant (P.W-2), the injured (P.W-3) and doctor (P.W-1) was recorded. On the strength of the statement of the injured witness (Kunwarpal Singh) an application was made to the Court to summon Kunwarpal, son of Jaidev, Sattoo and Ramjeet, u/s 319 Cr.P.C. The Court of Additional Sessions Judge, Court No. 2, Aligarh, vide its order dated 17.8.2010 summoned the aforesaid persons to face trial alongwith the other accused. This order dated 17.8.2010 was challenged before this Court in Crl. Revision No. 3605 of 2010. this Court, vide its order dated 31.8.2010, set aside the order dated 17.8.2010 on the ground that the Court below had not recorded any satisfaction that the evidence led before it would reasonably lead to conviction of the person sought to be summoned; and that mere existence of a prima facie case may not serve the purpose. this Court, accordingly, directed the Court below to pass a fresh order in the light of the decision rendered by the Apex Court in the case of Sarabjeet Singh and others v. State of Punjab and another, (2010) 2 SCC (Cri) 141 and Mohd. Shafi v. Mohd. Rafiq, (2007) 58 ACC 254. It is noteworthy that the order dated 31.8.2010 was passed without notice to the informant.
Pursuant to the order dated 31.8.2010, the Court below re-examined the matter and vide its order dated 17.5.2012 rejected the application u/s 319 Cr.P.C.
Challenging the order dated 17.5.2012, Sri Dharmendra Singhal, Learned Counsel for the revisionist, submitted that where the complicity of the person sought to be added as accused was disclosed from the initial stage itself and there was an injured witness to testify before the Court with regard to the complicity of the person proposed to be added an accused, the view of the Court below that the evidence led before the Court below would not reasonably lead to conviction of the person proposed to be added as an accused, is perverse. It was further submitted that in the case of
27. In view of the settled legal position as above, we hold that a person who is named in the First Information Report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against u/s 319 Cr.P.C. if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. As a corollary, we hold that the process issued against the appellant u/s 319 Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her.
2. Further reliance was placed on the judgment of the Apex Court in the case of
18. All that is required by the Court for invoking its powers u/s 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.
19. In the instant case, although, the appellants were named in the F.I.R., they were not named as accused in the charge-sheet during the trial. However, P.W. 1 in his evidence, has named the appellants as persons who were involved in the incident causing the death of Brijesh Kumar Singh and injuries to Manvender Singh. Despite the above, the trial Court, on two separate occasions, rejected the prayer made by the Respondent No. 2 for summoning the appellants herein u/s 319 Cr.P.C. The High Court, after considering the evidence of P.W. 1, Kamlesh Singh, thought it necessary for the appellants to be summoned.
20. Although, certain other observations made by the High Court regarding the orders passed by the Trial Court could and should have been avoided, we are also of the view that the High Court had not committed any error in directing that the appellants be summoned to stand trial alongwith the co- accused, in view of the evidence of P.W. 1 during the trial itself.
3. Reliance was also placed on the judgment of the Apex Court in the case of
16. 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 is 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.
4. Further reliance was placed on the judgment of the Apex Court in the case of
9. In this case, the deceased made a dying declaration. In the said dying declaration not only Sarabjit Singh but also the appellants herein were named as the persons who were responsible for her death. Correctness of the said dying declaration at this stage is not and cannot be questioned. It may be true that the appellants were not charge-sheeted but it is now well-settled, by reason of various decisions of this Court, that only because no charge-sheet has been submitted against certain persons, the same by itself, would not be a sufficient ground for the Court at a later stage, namely, upon consideration of the evidence adduced before it by the prosecution to decline to exercise its jurisdiction to add other persons as accused for trying them for offences which appear to it to have been committed by them.
10. The dying declaration together with statements made by the prosecution witnesses show commission of an offence. Appellants took side of Sarabjit Singh. They not only asked the deceased to marry him but even threatened her as also her parents that in case of refusal, she would be ''defamed'' It is not possible, keeping in view the nature of evidence which was made available before the learned Addl. Sessions Judge, to arrive at a conclusion that the said evidence, even if given face value and taken to be correct in its entirety; had not disclosed commission of an offence or on the basis thereof a judgment of conviction cannot be recorded at all. Appellants had raised certain defences. The same ultimately may or may not be accepted. But, indisputably, at this stage, the evidence adduced discloses some offence.
5. Relying on the aforesaid judgments of the Apex Court, it has been contended that the Court below at the stage of exercise of its power u/s 319 Cr.P.C. has only to find out whether the person proposed to be added as an accused was really involved in the incident or not. It has been contended that the Court below, instead of taking the testimony led before it on its face value, has entered into critical appreciation of the testimony, which was not justified at this stage, particularly in the light of the decisions of the Apex Court in the case of Suman v. State of Rajasthan (Supra); Rampal Singh and others v. State of U.P. (Supra); and Har Bhajan Singh and another v. State of Punjab (Supra).
6. Having considered the submissions of Learned Counsel for the parties, as well as the law noticed above, I am of the view that at the stage of exercise of power u/s 319 Cr.P.C. the Court is required to consider the evidence adduced before it only for the purpose of satisfying itself whether the person proposed to be added as accused was involved in the commission of the offence for which such person could be tried together with the accused. Correctness of the testimony, by a thread bare critical analysis, is not required to be questioned at this stage. Coming to the present case, a perusal of the order impugned reveals that the Court below, at this stage, dealt with the prosecution evidence as if the trial was over and it was writing a judgment of acquittal. Such an approach is not mandated at the stage of exercising power u/s 319 Cr.P.C. Accordingly, I am of the view that the Court below must reconsider the matter. Thus, the order dated 17.5.2012 is set aside. The Court below is directed to pass a fresh order in the light of the observations made herein above.
The Learned Counsel for the revisionist undertakes to furnish certified copy of this order alongwith an application before the Court concerned, within a period of three weeks from today, for information and necessary action.
The revision application stands disposed of.
