@JUDGMENTTAG-ORDER
N. Arumugham, J.@mdashThe present revision filed under Ss. 397 and 401 of the Code of Criminal Procedure is directed against the order
passed by the learned Additional Sessions Judge, Erode, in Crl.M.P. No. 20 of 1993 in Sessions Case No. 193 of 1992 dated 11.3.1993,
rejecting the prayer of the accused made in the above Criminal Miscellaneous Petition, filed under S. 319 of the Code of Criminal Procedure.
2. Short facts which led to the filing of this revision may be stated as follows:
Petitioner herein, being accused in the above Sessions case, for offences under Ss. 302 and 379 I.P.C. was facing trial before the learned
Additional Sessions Judge and during the course of which, 8 witnesses were examined. After their examination, the accused, who is the revision
petitioner herein, filed a petition under S. 319 of the Code before the trial Court for the arrest of the witnesses Mohan and Subban, who were also
stated as prosecution witnesses in this case, since the evidence let in by the prosecution so far implicates the said persons also for the offences
charged. It was objected to on behalf of the prosecution, namely, the State, by the Inspector of Police, Sathiyamangalam.
3. P.Ws. 1 and 2 by name Rengasamy and Masagounder are the father of deceased Sivaraj and husband of the deceased Kanniammal
respectively. Their evidence before the trial Court, was that the revision petitioner was in no way connected with the charge framed against him and
that witness Mohan figuring as witness number 26, who was the Forest Guard along with Subban Forest Watcher, figuring as witness number 15 in
the charge-sheet Sad committed the offence of murder and theft and not the present accused/revision petitioner herein.
4. The occurrence in this case seems to have taken place on 7.1.1992 as per the records. The first deceased by name Sivaraj is the son of P.W.1,
completed his studies in X Standard and was helping his father in his house and used to take the goats for grazing. The second deceased
Kanniammal is the wife of P.W.2 and she was also grazing the goats along with the first deceased and both were neighbours and were grazing their
goats in the Government Forest situated at Sathiyamangalam, within the jurisdiction of the respondent herein. It was the evidence of P.W.1 and
P.W.2, that about one year and one month prior to 15.2.1993 i.e. on 7.1.1992 both the deceased left for grazing the goats at about 9 a.m. P.W.1
returned at about 6 p.m. on that day to his house and at the request of one Durai and Udavakumar, left for Bannari at about 6 p.m. on that day.
P.W.1 claims, that when they reached near the wooden bridge at Bannari on the main road, they spotted out that his son Sivaraj and his sister in
law, the second deceased Kannimmal, were murdered and lying as pointed out by some persons. They had been murdered by cutting with axe
upon their neck, back and other parts of the body. At that time, he found 10 to 20 persons around the body. He would claim further, that one lady
by name Pappa had informed him that about two or three days prior to the occurrence Forest Guard Mohan misbehaved with her and that
therefore, she suspected that the said Mohan could have committed the murder. Then P.W.1, along with others went to the house of the said
witness Mohan and saw the witness with injuries all over his body wearing a vest along with Subban, the other witness number 15. According to
this witness P.W.1, they had admitted that they had committed the murders and told the witnesses that they could do whatever they wanted. Then,
P.W.1 had been to the house of village munsif. Then he went to the house of one Muthappa gounder, who informed the Police over telephone
about the occurrence in this case and upon his advice, he had been to the respondent police station, where two or three signatures were obtained
from him and was instructed, they came to the village. On the next day, on 8.1.1992, at about 6 a.m. Police came with sniffer dog. The dog on
sniffing from the scene of occurrence, directly went to the house of Mohan, entered into his house and pointed out the axe, blood stained cloth and
nose screw, upon which, Police arrested Mohan and Subban. Then the dead bodies were brought to Sathiyamangalam. P.W.1 denies having given
any complaint to the village munsif of Sikkarasampalayam.
5. However, with the permission of the Court, this witness was treated as hostile by the prosecution and cross-examined by the Public Prosecutor
in charge of the case. He has simply denied all the statements alleged to have been given by him before the respondent during investigation. In a
similar fashion, corroborating the evidence of P.W.1, P.W.2 Masa gounder, husband of second deceased Kanniammal, has given evidence but
however, he was not treated as hostile. But in his evidence, he admits that P.W.1, his co-brother went to the Village Munsif of Sikkarasampalayam
on the night of the occurrence and gave a complaint to him. He has identified M.O.1, the nose screw worn by the second deceased. During the
cross-examination, he has claimed, that upon the basis of what was told by witness Pappa, he along with P.W.1, and villagers went to the house of
Mohan and here they found Mohan and Subban with the injuries of nail mark all over the body. Then, he would say, that they went to
Sathiyamangalam Police Station for giving the complaint. He would support the evidence of P.W.1 during his corss-examination by saying, that
after seeing the two dead bodies, they had been to the house of the said Mohan and Subban and the Police had recovered the blood stained axe,
nose screw and clothes and that he identified the same. However, it was the claim of both witnesses, that the respondent police had not projected
the case against the said Mohan and Subban. P.Ws.3 to 8 were examined. But their evidence does not show anything against the said witnesses
Mohan and Subban but P.W.3 would clearly admit in his cross-examination, that the respondent police had kept witnesses Mohan and Subban for
a period of two days. P.W.5 would claim that he knew that about two days prior to the occurrence in this case, a case was registered against
Mohan for having misbehaved with one Pappa. The evidence of other witnesses were of no use for the purpose of this revision.
6. On scrutinising the entire oral and documentary evidence adduced by the prosecution so far, the learned trial Judge, has clearly given a finding,
that there was no direct legal evidence inculpating the witness Mohan and Subban so as to grant the relief and that therefore, he has dismissed the
petition by passing the impugned order. Aggrieved at this and canvassing the legal impropriety, the present revision has been filed.
7. I have heard Ms. Geetha Ramaseshan, learned counsel appearing for the revision petitioner, who had all persuasive efforts in convincing the
court with reference to the grievances of the petitioner herein, which was rejected by the learned trial Judge. While doing so, learned counsel has
frankly admitted that the revision petitioner is the accused himself and moved the trial Court for adding witness numbers 15 and 26 figuring in the
charge-sheet as the real accused who had committed the offences herein and in and by which, the revision petitioner accused had retracted his
confession recorded under S. 164 of the Code of Criminal Procedure by the learned Judicial Magistrate.
8. Per contra, Mr. R. Raghupathy, learned Additional Public Prosecutor, basing his contentions upon the written objections filed on behalf of the
prosecution before the court below would contend, firstly, that there was a total lack of bonafides in this revision, as it is being filed by the accused
himself, who had given a confession before a Judicial Magistrate and facing the trial for the charges referred to above, secondly, that though the
trial Judge is clearly empowered to issue summons or add any person and try the offences before him only in case there is ample legal evidence,
available before him, and that inasmuch as the said aspect is lacking in this case, the court below was perfectly right in rejecting the petition, which
would necessitate no revision to be maintained herein, and thirdly, that the present revision is not maintainable in law since it arises out of an order
passed in the interim application even assuming it is maintainable.
9. In the light of the above position, with reference to the contentions made for and against the impugned order available in this revision, the only
question that arises before me, is whether the impugned order is vitiated with any impropriety or illegality and if so, liable to be interfered with.
10. Before deciding the case in hand on factual aspects, I may advert to the relevant provision of law, which forms the very basis for deciding the
main point in this case. S. 319 of the Code of Criminal Procedure reads like this:
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 the witnesses re-heard;
(b) subject to the provision of clause (a), the case may proceed as if such person had been an accused person whom the Court took congizance of
the offences upon which the inquiry or trial was commenced.
In so far as the point involved in this case for consideration is concerned, sub-clause (1) of the above Section of law, clinches the fact, that the trial
Court is vested with an extraordinary power to proceed against any other person, not being the accused made by the investigating agency for the
offence tried together with the accused, if the court is satisfied with the evidence available against such person in those records. The words ""it
appears from the evidence"" and the last words employed in the above sub-section namely, ""appears to have committed"" clearly demonstrate the
full satisfaction of the trial Judge with the available legal evidence against a third party and were not arrayed as accused in the trial before him. It is
thus seen, from the words and language employed in the above section, it is made clear that the power vested with the court to add any other
person as accused and try together before the same court is only on getting full satisfaction of the legal evidence available during the trial. This sub-
section does not confine to a particular body or person either by way of complainant or accused or whatsoever, to say more clearly, what all
required before the trial court to invoke its power under this section, is the availability of legal evidence to implicate any person other than those
who were already made accused, upon which, the court must have satisfied that from the evidence the said persons also would have committed the
offences. However, it does not mean, that the evidence is necessary to prove the guilt of such persons beyond all reasonable doubt for the purpose
of enquiry or trial as contemplated under this section.
11. In Mohan Wahi Vs. State (Central Bureau of Investigation), New Delhi, , a learned Single Judge of the Delhi High Court has observed as
follows:
The power under S.319 Criminal Procedure Code could be exercised by the Court either suo motu or on an application by any one including the
accused standing trial before the Court. But the discretion to act under the provision lay entirely with the court which was bound to exercise it
judicially having regard to the facts of each case. Where it finds that the purpose of the move is to prevent an accomplice from appearing as a
witness in court and defeat the prosecution the court may decline to act.
12. In Dalip Singh and Others Vs. State of Rajasthan, , a Full Bench of the Rajasthan High Court, while dealing with the scope and ambit of S.
319 of the Code, has observed, as follows:
S. 319(1) is to be pressed into service upon the prima facie satisfaction of the Court and if the Court is satisfied that there is material to proceed
under S.319(1) then there is no necessity for postponing action under that S. till some statement is recorded. Cases are not rare where at the initial
stage after taking cognizance of the case, Court may think it necessary to summon a person in the dock and proceed against him under this S.
When the Legislature while enacting S.319(1) has used the term ''evidence'' only and not the evidence recorded in the Court, the meaning of the
word should be understood in its generic sense. Courts should read and interpret the S. as it is. No canon of construction permits the Court to
interpret a section in such a manner as to render it to some extent otiose. S.319 (1) vests in the Court power to correct the error of the
investigating agencies if it appears that there is some flaw in proceeding only against some persons and dropping others. Such a power is meant to
check the unbridled power of the investigating agency in determining the guilt or innocence of the suspects. This interpretation of the word
''evidence'' in S.319 (1), would help the Courts to put up the offender in the dock at the earliest stage possible.
13. A learned Single Judge of the Kerala High Court in E.P. Narayana Nambiar v. State of Kerala and Others (1989 Crl.L.J. NOC 8 (Ker) :
(1987) 1 Ker.L.T. 871) while dealing with the scope of S. 319 of the Code has held the view, as follows:
For the purpose of formation of opinion under S.319 (1) for proceeding against a person not being an accused in the case the evidence of one
witness would be sufficient. His examination to be treated as evidence under S.319 (1) would have only the effect of examination under S.200 or
S.202 for the formation of opinion whether there were sufficient grounds for proceeding against the person not being an accused in the case. The
fact that he was not cross examined would be no bar to the acceptance of this evidence because at that stage the person sought to be proceeded
against is not an accused and therefore he would not be entitled to cross-examine the witness. The satisfaction required to proceed against him
under. S.319 (1) is just like the one under Ss.204, 228 and 240. He becomes an accused only when process is issued. Thereafter there would be
retrial under S.319 (4) (a) and the person would be getting an opportunity to cross-examine the witness. The question whether the Court was
correct in accepting the evidence for the purpose of forming an opinion under S.319 (1) would fall within the domain of appreciation of evidence to
be done finally at the end of the trial before pronouncing upon the guilt or otherwise after the person is proceeded against.
According to the learned Judge,
The word ""evidence"" as defined in S.3 .means and includes statements made before the Court by witnesses in relation to fact under enquiry and
documents produced for inspection of Court. The ""evidence"" under S.319 (1) for the formation of opinion for proceeding against a person not
being an accused is the evidence brought before the Court during enquiry or trial. Such evidence may be oral consisting of statements of witnesses.
Documents will become evidence only when they are produced in an enquiry or trial. Therefore the ""evidence"" produced at the inquiry or trial will
not include statements made to police under S.161 and the materials collected during investigation. Such materials may become evidence when
proved as evidence during inquiry or trial. It is true that the word ""evidence"" is used in Ss.173 (8) and 226. But the evidence mentioned in those
sections is not evidence recorded during inquiry or trial and it refers only to materials collected during investigation. They are not described as
evidence during enquiry or trial. S.319 (1) states otherwise. The use of the word ""evidence"" in Ss.173 (8) and 226 could only be the result of
legislative inadvertence. At those stages the evidences available are materials collected by investigation which are not items of evidence coming
within the scope of S.319 (1). Those provisions cannot have the effect of including police statements within the meaning of ""evidence"" in the course
of any enquiry or trial mentioned in S.319(1).
14. A learned single Judge of the Patna High Court in Indu Bhushan Kumar v. State of Bihar (1983 Cri L J. 128 NOC) has held the view, as
follows:
When the Court wants to proceed against any person under S. 319, it must appear to it from the evidence that the person concerned has
committed any offence. It is manifest that some hard-test has been applied for proceeding under S. 319 in order to safeguard the risk of false
implication, Unlike proceeding under S. 204 when there is initial stage of the case and there is less chance of any concoction. The expression
evidence"" in S. 319 means only legal evidence, i.e. the oral or documentary evidence adduced before the Court. The requirement for proceeding
under S. 319 is not only the legal evidence but it should also be not of a flimay nature, rather it should be such that from it, it should appear that the
person against whom the Court is to proceed, has committed any offence. S. 319 requires that there should be some positive evidence which
should point out the specific guilt of the person to be proceeded against.
15. It is thus seen, from the case law above referred, that the power vested with the court which conducts a trial for the offences charged against
some persons before it, to add some other persons against whom the legal evidence are available with a view to satisfy that such some other
person has committed the offence. Then the trial court is entitled to proceed in accordance with the other sub-sections of S. 319. Therefore, the
power vested with the trial court under this section is an extraordinary one, however should be exercised so sparingly, if the court intends to do so
on the basis of available legal evidence both documentary and oral and for the compelling reasons contemplated by this provision of law. With
regard to this legal ratio, there was complete consensus-ad-idem between the Bar and the prosecution and that therefore, there is no difficulty at all
to view the facts of the instant case in accordance with the ratio pronounced by the courts of law as aforesaid.
16. If on the basis of the ratio held out and referred to above to the facts of the instant case, the only evidence available from the examination of
P.Ws 1 to 8 are the evidence given by P.Ws 1 and 2 alone. Significantly, it has to be noted, that there are no ocular witnesses in this case. P.Ws 1
to 4 appear to have been examined by the trial Judge on 15.2.1993 and on the next day P.Ws 5 to 8 were examined and all were cross-examined
and the case was adjourned for the third day on 17.2.1993. At this juncture, a petition under S. 319 of the Code was filed on behalf of the
accused for the relief as prayed. To substantiate his claim, it is noticed, that the evidence of P.Ws 1 and 2 alone were available. However, at this
stage one cannot ignore the fact that P.W.1 and P.W.2 are not the occurrence witnesses and that even so, P.W.1 was treated as hostile. In short,
the matrix of the evidence of these two witnesses are identical in nature but on closer scrutiny, their claims seem to have been based on what was
told by one witness by name Pappa, who was also a co-grazer of goats in that locality and with whom, the alleged witnesses sought to be added
as accused was said to have misbehaved just prior to the occurrence. The rest of the witnesses are yet to be examined, including the Investigating
Officer.
17. One other circumstance in this case though not relied upon by and on behalf of the revision petitioner is an aspect which creates some sort of
suspicion alone and certainly not a legal evidence. If I say so, the very fact that upon the demonstration made by the villagers of that locality
immediately after the occurrence and the representation made to the higher Police officials through the responsible personalities and the consequent
change of Investigating Officer cannot be overlooked. More significant of all is the non-examination of the alleged witness Pappa, who was grazing
the goats along with both the deceased on the day of occurrence and prior thereto. It is not known under what circumstances, the investigating
agency failed to examine the said Pappa, who is a very material witness in this case. I have carefully perused the impugned order passed by the
learned trial Judge. However, with great constraint, I may advert to the fact that the learned trial Judge has not applied his mind towards the above
said aspect though it was made available before him with reference to records. The learned trial Judge while giving a finding in his order that the
said witness was not examined by the investigating agency even in the context of the change of investigating officers, the learned Judge is duty
bound to take a judicial note while disposing the case after its full trial.
18. Excepting the above circumstances and the accounting of two witnesses among whom, one was treated as hostile and not the occurrence
witnesses, as adverted to already, no other evidence or materials were available in this case so as to attribute with every legality in so par as their
accounting is concerned. Therefore, with great constraint, I may and after having carefully considered the whole grievances projected by the
learned counsel for the petitioner in the context of the controverting by the learned Additional Public Prosecutor, I have to necessarily hold that the
legal element is totally lacking in this case, which warrants or compels the trial Court to exercise its extraordinary power u/s 319(1) of the Code.
19. Of course, the circumstances brought to the notice of this Court maybe a strong one and very poignant and relevant but however, that does not
mean and amount to a legal evidence as defined by the case law above referred to. In this regard, under such circumstances, the conclusion of the
learned trial Judge in rejecting the petition filed under S. 319 of the Code on behalf of the accused cannot be held as illegal or improper and on that
score, I am not able to identify any material or legal aspects to intervene in this revision. However, in this regard, it is always open for the revision
petitioner as well as the prosecution to agitate or vindicate their rights before the trial court during the course of the trial. Since this matter is
pending for a very long time, I hereby direct the learned trial Judge to take up the case immediately and dispose it in accordance with law within a
maximum period of three months from today without being influenced by any of the observations made during the course of the disposal of this
revision during trial.
20. In the result, with the above observation, this revision is dismissed. The registry is directed to send all the case record, if any, to the trial Court
for complying, on proper acknowledgment and without any delay. Ordered accordingly.