Mahesh Kumar Kaush & Another vs State Of U.P.
2012 Latest Caselaw 1658 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 25
 

 
Case :- CRIMINAL REVISION No. - 3067 of 2003
 

 
Petitioner :- Mahesh Kumar Kaush & Another
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Yogesh Kumar Saxena
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Mrs. Jayashree Tiwari,J.

Case called out in the revised list.

Learned counsel for the revisionist and learned A.G.A.

The present criminal revision has been filed against the order dated 8.10.2003 passed by Additional Sessions Judge, Firozabad in S.T. No. 503 of 2002, under Sections 147, 148, 452, 307/304 I.P.C. P.S. Khairgarh, District Firozabad in Case Crime No. 141 of 2000.

Learned lower court has come to the conclusion that prima facie, implication and involvement of the accused revisionists in the incident is apparent and hence he has directed to accused revisionists to be summoned.

It is contended that the order passed by the learned lower court is not in accordance with law because the revisionists were not named in the First Information report and they were not charge sheeted which proves the innocence of the revisionists. Because, the revisionist no. 2 remained posted at Agriculture Research Station, Kota as Technical Assistant from 14.8.2000 to 18.8.2000 and certificate to this effect issued by Associate Director Residence of Agriculture Research Station, Kota to prove the ali-bi of revisionist no. 2 during enquiry by the Police was submitted and the name of the revisionist no. 2 was deleted while submitting the charge sheet and thus the revisionists may not be summoned by exercising discretionary power conferred under Section 319 Cr.P.C.

It is further contended that the provisions of Section 319 Cr.P.C. are only applicable in the circumstances when the name of the accused persons appeared during statement recorded in furtherance of trial first time, but it is not open for the prosecution to jeopardise the same person, who has been exonerated during enquiry by the Police after due verification etc.

Because neither the witnesses have corroborated the commission of offence by the revisionists, nor the revisionists could have been implicated in the present crime from any stretch of imagination for being the respectable personality regarding whom no body could have believe by them to get the participation in the crime in the manner alleged in the present case.

Because the Hon. Supreme Court in case of Michael Machado vs. C.B.I. reported in 2002 (1) S.C. Page 795 has held that the Supreme Court while deciding whether to invoke power under Section 319 Cr.P.C., the constraint imposed by first limb of sub section (4) of section 319 may have been taken into consideration. It is provided that court must have reasonable satisfaction for the aforesaid evidence regarding two aspects. Firstly, is that the other person has committed an offence and secondly whether other person could as well be tried along with already arraigned accused.

In this connection, I have gone through the order passed by the learned lower court and has also heard the arguments of the learned counsel for the revisionists.

Learned counsel for the revisionists referred a ruling reported in 2001 (42) ACC 1021 in case of Pradeep Kumar vs. State of U.P. and another, wherein it has been held by the Hon. High Court in para-3 which is as follows:-

"Learned counsel for the revisionist contended that in the order itself it is mentioned that the said accused Pradeep was nominated in the F.I.R. and charge-sheet was not submitted by the Investigating Officer. The reliance has been placed by the learned counsel for the revisionist upon 2000 (40) ACC page 795 to argue that when a person was already accused in the F.I.R. and the charge-sheet was not submitted against him, the provision of Section 319 Cr.P.C. cannot be invoked.

Thus according to this ruling, learned counsel for the revisionist submitted that when a person was already accused in the F.I.R. and the charge-sheet was not submitted against him, the provision of Section 319 Cr.P.C. cannot be invoked.

As against this, learned A.G.A. submitted that at this stage it is only to seen whether that alleged person appears to be guilty of an offence. In this connection, It will be appropriate to go through the provisions of Section 319 Cr.P.C. which is as follows :-

Section 319 Cr.P.C.- 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 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.

So the first contention raised by the learned counsel for the revisionists is concerned that once a person has been made accused in F.I.R., but he has been relieved by the Police Investigating Officer and not charge-sheeted, such person cannot be summoned in the exercise of power conferred under Section 319 Cr.P.C. But the contention of the learned counsel for the revisionists does not seem to be sustainable in view of the legal position as laid by Hon. Supreme Court in case of Sarojben Ashwinkumar Shah and others vs. State of Gujarat and another reported in 2012 1 Supreme Court Cases (Cri) 867 (2011) 13 Supreme Court Cases 316, wherein in para-16 in clause -3 of the said case, it has been held that :

"The phrase " any person not being the accused" occurring in Section 319 does not exclude from its operating an accused who has been released by the police under Section 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."

So in accordance with the law as laid by the Hon. Apex Court, in the exercise of the powers under Section 319 Cr.P.C. those persons who were named in F.I.R. but who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court may be summoned. So the first contention as raised by the learned counsel for the revisionists is not sustainable.

Learned counsel for the revisionists again relied upon a ruling reported in 2000 (40) ACC page no. 795 in case of Michael Machado and another vs. Central Bureau of Investigation and another wherein, it has been observed that :-

"The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the First limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action."

In this ruling the Hon. Supreme Court has observed that in case where quite a large number of witnesses have been examined then the process has to be started again and it will entail much time and in that regard the Court has to take into account whether there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned. But in the present case before us quite a large number of witnesses are not examined but only two witnesses have been examined by the court and the court has observed in its order that from the evidence from P.W.1 and P.W.2 the involvement of the accused revisionists in the offence is prima facie, made out.

It is further contended that P.W.1 in his statement stated that Mahesh Kaush fired from revolver and Dori Lal fired with lathi blows. P.W. 1 further stated that Mahes Kaush again caused lathi blows. Learned lower court came to the conclusion that prima facie, the involvement of the accused revisionists is made out in the offence concerned and has issued the process for summoning them.

Learned A.G.A. relied upon a ruling reported in 2007 7 SCC 378 in Case of Rajendra Singh vs. State of U.P. and another, wherein it has been held that

" Power to proceed against other persons appearing to be guilty of an offence - Scope of Condition for exercise of said power- Discretion of court in relation to that exercise - Held court can summon a person to face trial even though he may not have been charge sheeted by the investigating agency or may have been discharged at earlier stage in order to exercise the jurisdiction under Section 319 Cr.P.C., it must only "appear" to the court from the evidence that someone else has committed an offence - Court need not be " satisfied" about the commission of offence by that person- Decision to proceed or not to proceed against a person in terms of Section 319 Cr.P.C. is left to discretion of trial court- Said decision must be taken after applying mind to the evidence before the court - Power and discretion of court under Section 319 Cr.P.C. cannot be fettered either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances - It is intended to be sued when the occasion envisaged by Section 319 Cr.P.C. arises."

It is further observed para -16 of said ruling that which is as follows :-

Section 319 Cr.P.C. - "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."

As I see it, the words are plain and the meaning clear. When in the course of the enquiry or trial, it appears to the court from the evidence that a person, not arrayed as an accused, appears to have committed any offence for which that person could be ried together with the accused, the court may proceed against that person. Surely, it must appear to the court from the evidence that someone not arrayed as an accused, appears to have committed an offence. 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. With great respect, I see no reason to describe the power as an extraordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the section only gives power to the court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. I see no reason to curtail this power of the court to do justice to the victim and to the society."

It is further observed para-16 in case of Sarojben Ashwinkumar Shah and others vs. State of Gujarat and another reported in 2012 1 Supreme Court Cases (Cri) 867 (2011) which is as follows :-

" 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 thus :

(I)The court can exercise the power conferred on it under Section 319 of the Code suo moto on an application by someone.

(II)The power conferred under Section 319 (1) applied to all course including the Sessions Court.

(III)The phrase " any person not being the accused" occurring in Section 319 does not exclude from its operating an accused who has been released by the police under Section 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, and 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 can not add persons as accused on the basis of material 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 person 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 as 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 the other person be tried with the already arraigned accused.

(VI)The court while exercising its power under Section 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 considered the above aspects and then exercise its judicial discretion.

Thus, in accordance with the aforesaid ruling also the court may summon the accused revisionists who appears to have committed offence and is involved in the commission of the offence. However, the Court has observed that the exercise must not be done in a routine manner. Thus in accordance with the aforesaid rulings, it comes out that the learned lower court had taken into consideration the specific evidence against the accused revisionists and had applied his mind and come to the conclusion that direct involvement of the accused revisionists in the said offence appears to have been made out. Apparently, no illegality or perversity in the order so passed. The revision, appears to have no force in itself and is liable to be dismissed as such.

The revision is accordingly, dismissed.

Order Date :- 14.5.2012

Monika