Tarlok Singh Chauhan, J@mdashThis petition under section 482 Cr.P.C. read with Article 227 of the Constitution of India seeks quashing of order dated 15.1.2015 passed by the learned Sessions Judge (Forest), Shimla whereby he dismissed the application filed by the petitioner under section 319 Cr.P.C. for arraigning the respondents No. 2 & 3 as accused.
2. It has been averred that on 30.6.2008, Union of workers working in M/s. Virgo Appliances Pvt. Ltd. decided to protest in front of its gate in the industrial area of Shoghi. About 300 workers gathered there and few of the workers even tried to enter the gate of the premises of M/s. Virgo Appliances with their demands, but were thrashed by the guards appointed by the company. In the meanwhile, a group of 15-20 workers entered inside the gate of M/s. Virgo Appliances, where the security guards opened fire resulting in injuries to the petitioner and S/Sh. Pankaj Chaudhari, Ravi Kant and Sunil and death of Amarjeet. FIR No. 162 of 2008 was registered under sections 302, 307, 109 and 34 IPC alongwith section 25(5)(4) of Arms Act at the instance of one Khem Chand an injured. On the basis of the FIR, initially there were nine accused including respondents No. 2 and 3, but after completion of the investigation, their names were dropped and only seven accused were named to face trial.
3. The petitioner is alleged to be one of the injured, who preferred an application under section 319 Cr.P.C. praying therein for arraying the respondents No. 2 and 3 as co-accused on the basis of the statements of the witnesses recorded during trial. The application came to be dismissed by the learned trial court by observing that there was no material on record, which could prima facie establish the complicity or the involvement of respondents No. 2 and 3 in the crime.
4. This order has been assailed on the ground that despite respondent No. 2 and 3 being specifically named in the FIR and in the statements recorded under sections 161 Cr.P.C., they were not made accused when the report under section 173 Cr.P.C. was filed by the investigating agency. It is further contended that during trial the names of respondents No. 2 and 3 have again surfaced, as all the eye witnesses i.e. PWs 1, 2, 3, 5, 13 and 16 have categorically stated in the examination-in-chief that the security guards had fired at the protesting workers on the instructions of respondents No. 2 and 3. In support of such allegations, the petitioners have also appended their statements as Annexure P-4.
I have heard the learned counsel for the parties and have also gone through the records of the case.
5. The learned counsel for the respondents has raised preliminary objection regarding the very maintainability of this petition by placing reliance upon the judgement of Hon''ble Supreme Court in
6. The petitioner has not contested this position and has drawn my attention to the application filed by him, under section 482 Cr.P.C. registered as Cr.MP. No. 622 of 2015 for converting and treating this petition to that of criminal revision under section 397 read with section 401 Cr.P.C. Though this application has been vehemently contested, however, I feel that interest of justice demands that the same be allowed. After all when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred.
7. Reverting to the facts of the case, the learned counsel for the petitioner has drawn my attention to the statements of the witnesses, more particularly, the statements of PWs 1, 2, 3, 5, 13 and 16 to canvass that these witnesses have categorically stated in their examination-in-chief that the security guards had fired at the protesting workers on the instructions of respondents No. 2 and 3 and once these persons have been named in the examination-in-chief, they ought to be impleaded as co-accused as it was not necessary to look into the cross examination or else it would amount to a mini trial.
8. This court in Cr.MMO No. 142 of 2014 titled Surjit Singh Pathania v. State of Himachal Pradesh decided on 29.8.2014 has held as follows:-
"6. The object, nature and scope of Section 319 Cr.P.C., does not remain in the realm of guesswork in view of the Constitutional Bench judgment in
"Questions (i) and (iii)
-What is the stage at which power under Section 319 CrPC can be exercised?
AND
-Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
Answer
117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 CrPC and the Sessions Judge need not wait till "evidence" under Section 319 CrPC becomes available for summoning an additional accused.
117.2. Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
117.3. In view of the above position the word "evidence" in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question (ii) -Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination -in-chief of the witness concerned?
Answer
117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question (iv)-What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer
117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge*. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question (v) -Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?
Answer
117.6. A person not named in the FIR or a person though named in the FIR but has not been charge - sheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh."
9. It cannot be disputed that even in case a person not named in the FIR or a person though named in the FIR, but has not been charge-sheeted even then he can be summoned under section 319 Cr.P.C. provided that from the evidence it appears that such person can be tried with the accused already facing trial. It is also more than settled that the court has discretionary power to summon a person as additional accused under section 319 Cr.P.C. However, it is not enough that the court entertains only some doubt about the involvement in the offence, the court must have reasonable satisfaction from the evidence already collected, but suspicion in itself is not sufficient that there is a reasonable satisfaction of convicting such person.
10. The legal position has been correctly summed up by the Sessions Judge in the following terms:-
"7. Section 319 of the Code of Criminal Procedure empowered a Court to proceed against any person not shown to be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused. The Section 319 of the Cr.P.C. reads as under:-
"Power to proceed against other persons appearing to be guilty of offence.......
S. 319. (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 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.
8. The power exercisable under S. 319 is an extraordinary power conferred on the Court to do real justice, it should be used with caution and only if compelling reasons exist for proceeding against a person against whom action has not been taken.
9. The power of summoning an additional accused under S. 319 Cr.P.C. should be exercised sparingly. The key words in Section are "it appears from the evidence"...."any person"...."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person the discretion under S. 319 Cr.P.C. would be used by the Court. The Court has to use the power under S. 319, Cr.P.C. sparingly and primarily to advance the cause of criminal justice but not as a handle at the hands of the complainant to cause harassment to the person who is not involved in the commission of the crime.
10. Recently a reference was made to the Hon''ble Supreme Court and the constitution of Bench of the Hon''ble Supreme Court in
(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(ii) whether the word "evidence" used in Section 319(1), Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" in limited to the evidence recorded during trial?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"
The law laid down by the Hon''ble Supreme Court qua question No. (iv) is material to the facts and circumstances of the present case. While dealing with question (iv) i.e. what is the decree of satisfaction required for invoking the power under Section 319 Cr.P.C.?, the Hon''ble Supreme Court has held:-
"93. Section 319(1) Cr.P.C. empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. The word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved". It imparts a lesser degree of probability than proof.
94. In
95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in
96. In
"16. Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."
97. In
"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.
106. 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."
The aforesaid legal position has not even been disputed by the learned counsel for the petitioner.
11. PW 1 Khem Chand an injured in his examination-in-chief deposed that V.K. Tripathi and R.K. Malhotra had asked the guards to open fire on the labourers, whereas PW 19 Budhi Parkash, who was the security officer has nowhere stated so, rather he deposed that the accused fired 1-2 rounds as a result whereof 1-2 persons sustained injuries and one of the workers also died.
12. PW 2 Pankaj Chaudhari and PW 3 Ravi Kant have alleged that incident occurred due to the instructions given by the owner and the CEO of the company, but they did not specifically name any of the person, who in fact had given such directions.
13. PW 3 Ravi Kant has stated that he had informed the police that security personnel openly claimed that they were authorized by respondent No. 2 to fire on the mob, but when confronted with his statement this fact was not so recorded.
14. Further, it is not in dispute that the premises where the incident took place is the factory premises of M/s. Virgo Appliances and at a distant place the company was/is also having its office known as Tikaksha and it has come on record that respondent No. 3 on the fateful day was in fact in Tikaksha office, which is at a distant place and possibly therefore could not have given instruction to fire.
15. The learned counsel for the petitioner would then argue that the complicities of respondents No. 2 and 3 are established from the observations made by this court at the time of granting bail to these petitioners.
16. This contention is equally without any force for the simple reason that it has been specifically recorded in the bail order that "any observation made hereinabove is strictly for the purpose of deciding the instant petition and it shall not be construed to have any bearing on the merits of the case." That apart, it is settled law that any observation made while adjudicating upon a bail petition cannot be read as evidence during the course of trial.
17. Now, I proceed to decide the question of delay, which is not only interlinked to the maintainability of the application filed under section 319 Cr.P.C. by the petitioner but also to the conduct of the petitioner.
18. No doubt, the petitioner is not the complainant, yet being one of the injured he would probably still have the locus-standi to file and maintain the present petition. But, then why the petitioner whose statement had been recorded as far back as on 30.7.2012 chose to file the application under section 319 Cr.P.C. only on 10.12.2014 when even the statements under Section 313 Cr.P.C of the accused had been recorded on 16.6.2014 is not forthcoming.
19. Why only at the stage of final arguments, was this application filed, is also not forthcoming. Significantly, the statements as sought to be relied upon by the petitioner had already come to be recorded by 15.10.2012. The entire prosecution evidence had been recorded over a period of six years and the prosecution had closed its evidence after examining 28 witnesses in the year 2013, yet the petitioner waited for complete one year after the completion of the trial to file this application. This only reflects upon the lack of bonafides of the petitioner.
20. The learned counsel for the petitioner would lastly argue that once the names of respondents No. 2 and 3 were specifically mentioned in the FIR as also in the statements recorded under section 161 Cr.P.C. during the course of investigation, therefore, they should now be impleaded as co-accused.
21. This contention of the petitioner is not tenable, because after the report under section 173 Cr.P.C. has been filed and trial has commenced, it is the evidence recorded by the court which alone can be looked into to establish the complicity of the accused and it is not permissible then to fall back either on the contents of the FIR or the statements recorded under section 161 Cr.P.C during the course of investigation.
22. Having said so, I find no merit in this petition and the same is accordingly dismissed.
