Poonam Srivastav, J.@mdashHeard Sri P.P. Srivastava, learned Senior Advocate assisted by Sri Rajul Bhargawa, Advocate for the applicant, Sri Tapan Ghosh, learned Senior Advocate assisted by Sri Anup Ghosh, Advocate, for the opposite party No. 2 and learned A.G.A. for the State.
2. The instant application u/s 482 Cr.P.C. is preferred challenging the order dated 14.8.2007 u/s 319 Cr.P.C. passed by the Sessions Judge, Aligarh, in Session Trial No. 360 of 2006 Stale of U.P. v. Purshottam and Ors. under Sections 302, 504, 506 I.P.C., P.S. Sasani Gate, District Aligarh.
3. First Information Report was registered at the concerned police station on 29.10.2005 regarding an occurrence which took place at 6:00 p.m. on the same day. The opposite party No. 2 along with her husband while returning from her old house on motorcycle were waylaid by the named accused Purshottam, Niraj, Amit Kumar @ Ashu, Chandra Shekher and Amit. Firing was resorted to by three accused but role of firing was not assigned to the present applicant and his son Amit. Police completed investigation and charge sheet was submitted against accused Niraj, Amit @ Ashu and Pursottam. After submission of charge sheet against three accused and final report against the present applicant, notice was issued to the opposite party No. 2. It is stated in paragraph No. 5 of the affidavit filed in support of the application and also admitted by the counsel for the opposite party No. 2 that no protest petition was filed. Finally, trial proceeded and statement of Smt. Sharda Gupta was recorded in the court. After completion of examination in chief of P.W. 1, an application was moved at the instance of the opposite party No. 2 u/s 319 Cr.P.C. for summoning the applicant and his son to face the trial with the other co-accused. The trial Judge invited objection, which was submitted on behalf of the applicant and the other accused (his son). Thereafter, impugned order dated 14.8.2007 was passed calling upon the applicant and his son to face the trial exercising power u/s 319 Cr.P.C. which is impugned in the instant application.
4. Submission on behalf of the applicant is that since P.W. 1 Smt. Sarda Gupta was not subjected to cross examination, therefore, her evidence was not yet completed and she could not be summoned only on the basis of her statement in chief which was only a repetition of the F.I.R. Counsel for the applicant has placed reliance on the latest decision of the Apex Court in the case of Mohd. Shafi v. Mohd. Rafiq and Anr. (58) 2007 ACC 254. Ratio laid down in this decision following a number of decisions of the Apex Court is that it is satisfaction of the Trial Judge whether to summon or not to summon an accused and such satisfaction can be arrived at upon completion of evidence of witnesses. It is for the Trial Judge to exercise discretion u/s 319 Cr.P.C. whether to proceed against an accused, who has not been charge sheeted and is not facing trial.
5. Counsel for the applicant has emphasized that since witness was yet to be cross examined and, therefore, exercise of discretion by the Trial Judge against the present applicant is at a premature stage and without cross examination he could not conclusively record his satisfaction whether accused, who is not facing trial is also liable to be prosecuted on the basis of evidence recorded during the trial.
6. Counsel for the opposite party No. 2 has disputed assertions made on behalf of the applicant, lie has emphatically tried to place part of the judgment of the Apex Court in the case of Mohd. Shafi (supra) in support of his contention that facts of the present case cannot be equated with the decision relied upon by the counsel for the applicant in the case of Mohd. Sail (supra). The Apex Court disapproved interference of the High Court while setting aside the order of the trial court refusing to summon the accused u/s 319 Cr.P.C. only on the basis of statement in chief. The Apex Court was of the view that the High Court erred in interfering with the order of the trial court at the instance of one of the respondents, who was merely a witness and not even cross examined, in the circumstances, Sri Tapan Ghosh, learned Senior Advocate, emphatically argued that since facts are altogether different, two cases cannot be equated. He has also argued and emphasized the fact that the trial is pending since very long time for one or other reason, therefore, he does not propose to file counter affidavit and is heard finally on merit.
7. After hearing counsels for the respective parties and going through the record, the present application invoking inherent jurisdiction is finally decided at this stage itself.
8. Before I proceed to consider the argument, it is necessary to examine the requisite ingredient of Section 319 Cr.P.C. which reads as follows;
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, at-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 witnesses reheard;
(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.
9. In view of the aforesaid provision, what is required is that any person not being an accused and committed for an offence can be tried along with accused if it appears to the court during course of an inquiry or trial of an offence from the evidence, that such person is also involved in the offence there are chances of his conviction in all likelihood. Such person may also be required to appear and face trial along with other accused. Thus it is necessary that such power and discretion can be exercised only if it appears from the evidence during the trial.
10. The court exercising jurisdiction in term of Section 319 Cr.P.C. must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. The Apex Court laid clown that such satisfaction can be arrived at inter alia upon completion of the cross examination of the said witnesses and for the said purpose, the court concerned may also like to consider other evidence. In the case of Municipal Corporation of Delhi v. Rom Kishau Rahtagi and Ors. (20) 1983 ACC 50 (SC), the Apex Court cautioned the trial court that Section 319 Cr.P.C. is extraordinary power conferred on the court and should he used very sparingly and only if compelling reason exists for taking cognizance against such person, whom action has not been taken. However, in the said case, the Apex Court had left the entire matter to the discretion of the court concerned to act in accordance with law. In the instant case, objection of the counsel for the applicant is that since cross examination has not yet been completed, in view of the decision of the Apex Court, summoning order u/s 319 Cr.P.C. is liable to be quashed. The term ''Evidence'' as defined in Section 3 of the Evidence Act means and includes, - (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence.
11. Section 319 Cr.P.C. empowers the court to proceed against the person not being an accused appearing to be guilty of an offence and issue process for the purpose. It provides cognizance against the newly added accused deemed to have been taken in the same manner, in which cognizance was taken for the offence against earlier accused. Scope of Section 319 Cr.P.C. is enabling provision, which covers post cognizance stage, where in the course of inquiry or trial, involvement and complicity of the person/persons by the Investigating Agency is not sent up for the trial.
12. The Apex Court in the case of Kishun Singh v. State of Bihar (3) 1993 ACC 167 (SC), ruled that once court of session takes cognizance, power to summon or arrest a person not named in the police record can very well be exercised u/s 319 Cr.P.C. Only condition precedent is that this power should be exercised after commencement of the trial on the basis of evidence, if the court is satisfied that complicity of a person not shown as an offender in the police report surfaced from the evidence recorded in the course of the trial may very well be summoned a person to stand the trial along with other accused. In the event the Trial Judge is of the view that on perusal of the papers, prima facie finds complicity of a person in the commission of the crime and omission of his name as an offender by the Investigating Officer not proper, he can be summoned. In the case of Kishun Singh (supra), the Apex Court clarified the stage, that is to say post cognizance stage when jurisdiction u/s 319 Cr.P.C. can be exercised. This view was also taken by a Division Bench of the Apex Court in the case of
13. Fmphasis of the counsel for the applicant is that cross examination has not yet taken place. I am not in agreement with the submission of the counsel for the applicant that the accused could be summoned only after completion of cross examination on the basis of decision of the Apex Court in the case of Mohd. Shafi (supra). No doubt, Hon''ble Judges of the Apex Court have used the word "...inter alia upon completion of cross examination of the said witness." But it appears that previous decision of the Apex Court in the case of Rakesh and Anr. v. State of Harayana (43) 2001 ACC 392 was not brought to the notice, wherein it was specifically held that the term ''Evidence'' as used in Section 319 Cr.P.C. would not mean the evidence which is tested by cross examination. The word ''evidence'' is used in comprehensive and broad sense. For ready perusal paragraph Nos. 11, 12 and 13 of the said decision are quoted herein below:
11. Further, the scope of Section 319 was considered by this Court in Ranjit Singh v. State of Punjab. In paragraph 10, the Court held that Sub-section (1) of Section 319 contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. The Court has also clarified that;
Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.
12. Hence, it is difficult to accept the contention of the learned Counsel for the appellants that the term ''evidence'' as used in Section 319 of Criminal Procedure Code would mean evidence which is tested by cross examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section 319 does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word ''evidence'' occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the Investigating Officer and the material or evidence which conies before the Court and front which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime.
13. Lastly, learned Counsel further submitted that power u/s 319 is an extraordinary power and should be used very sparingly and only for some compelling reasons for taking cognizance of other persons against whom action has not been taken. For this purpose, he referred to MCD v. Ram Kishan Rohtagi. In our view, there cannot he a dispute that power u/s 319 is to be sparingly used. But that would not mean that when a prosecutrix names three persons who were involved in the serious crime are not to be added as accused by exercise of such power.
14. Besides, Section 319(4) Cr.P.C. has ensured to safeguard interest of subsequently summoned person to face the trial. The safeguard provided m respect of such person is that the trial is mandatorily to be commenced afresh and the witnesses re-heard. In short there has to be de novo trial against him. De novo trial is mandatory, it would not be sufficient only to tender witnesses for cross examination of such a person, they have, to be examined afresh, which is mandate of Section 319(4) Cr.P.C. It was held in the case of Shoshi Kant v. Tarkeshwar (2002) 45 SCC 164 that the word could be tried together with the accused" appearing in Section 319(1) is only directory.
15. I have examined the impugned order. I am of the considered view that the trial Judge has taken into consideration all aspects of the case and also statement given by P.W. 1 during the trial. I do not find any illegality in the impugned order exercising discretion while summoning the applicant u/s 319 Cr.P.C. The Apex Court in the case of Mohd. Shafi (supra) did not appreciate interference by the High Court setting aside the order of the trial court, who had exercised discretion and declined to summon the accused. No doubt, word cross examination has been used but taking into consideration the consistent view of Hon''ble Supreme Court in a number of other cases that is to say, discretion exercised by the Trial Judge should not be interfered unless and until the High Court is of the view that discretion exercised was without any material whereas on bare perusal of the present impugned order, it is not a case, where the Trial Judge has exercised jurisdiction u/s 319 Cr.P.C. in a flimsy manner. The applicant has not been assigned the role of firm but the order of the Trial Judge is eloquent on the face of it that participation cannot be ruled out. No hard and fast rule can be made whether the summoning of other person who are not facing the trial can be done only after completion of cross examination. The, cardinal rule is the satisfaction of the Trial Judge. I am not inclined to give any opinion on merit, so far participation of the present applicant in the crime is concerned, it is for the Trial Judge to make his assessment after recording the entire evidence and forming an opinion at the conclusion of the trial. In the circumstances, I do not find it a fit case for interference in exercise of inherent power u/s 482 Cr.P.C. The instant application u/s 482 Cr.P.C. is, accordingly, dismissed.
16. However, the applicant is allowed four weeks'' time to appear before the court concerned from today and apply for bail in Session Trial No. 360 of 2000, u/s 302, 504, 506 I.P.C. P.S. Sasani Gate, District Aligarh. the same shall be considered and disposed of by the courts below expeditiously, preferably, if possible on the same day. For a period of three weeks, no coercive measure shall be taken against the applicant.
