Sanjay And Another vs State Of U.P. And Another
2013 Latest Caselaw 1911 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 22.4.2013
 
Judgement delivered on10.5.2013
 

 

 
Case :- CRIMINAL REVISION No. - 825 of 2005
 

 
Petitioner :- Sanjay And Another
 
Respondent :- State Of U.P. And Another
 
Petitioner Counsel :- Dharmendra Singhal
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

1. By means of this revision, revisionist have challenged the impugned order dated 29.11.2004 passed by learned ACJM, Hapur, Ghaziabad in Criminal Case No. 168 of 204 (State Vs Arvind and others) whereby they have been summoned by the learned Magistrate to face the trial under Sections 147,323,325,504,149,452 IPC (Crime No. 202 of 2003) P.S. Hapur Dehat on the application moved by the complainant/opposite party no. 2 under Section 319 Cr.P.C.

2. The encapsulated facts of the case are that an application under Section 156(3) Cr.P.C. was moved by the opposite party no. 2 against the revisionists and other accused persons alleging therein that on 25.10.2003 when the complainant and his younger brother had gone in connection of their work, accused Arvind son of Nanak, Ravindra S/o Mantoori, Rinku son of Rampal, Sanjay son of Kachhinda entered in the house of the complainant/opposite party no. 2 along with Dinesh and Deepak armed with 'lathi and danda' and committed 'marpeet' with intention to kill Angoori Devi, the complainant's wife and Kiran, the wife of his younger brother and they also abused them. As a result of which, wife of complainant and the wife of younger brother of the complainant sustained several injuries on their person.

3. Complainant reported this incident to the police but of no avail. On the intervention of the Magistrate under Section 156(3) Cr.P.C., an FIR was registered against the revisionists and four other co accused persons namely Arvind, Ravindra, Dinesh and Deepak vide Case Crime No. 202 of 2003, under Sections 147,148, 323, 452, 325, 308, 504, 506 IPC at P.S. Hapur Dehat, District Ghaziabad. On completion of investigation, charge sheet was submitted by the Investigating Officer only against the Arvind, Ravindra, Dinesh and Deepak under Sections 323,325, 504, 506 IPC upon which cognizance was taken by the Magistrate.

4. Thereafter, an application under section 319 Cr.P.C was moved by the respondent no. 2 for summoning the present revisionists whose name were deleted by the Investigating Officer. The said application under Section 319 Cr.P.C. was allowed by the learned Magistrate and the present revisionists were summoned to face the trial under Sections 147,323,325,504,506,452 read with 149 IPC vide order dated 29.11.2004. It is this order which is subject matter of challenge in the instant revision.

5. Heard learned counsel for the revisionists, learned counsel for the complainant, learned AGA and have perused the material on record.

6. The short question that requires for consideration in this revision is as to whether the Magistrate can summon those persons whose name appear in the FIR as an accused persons but not in the charge sheet in exercise of power under Section 319 Cr.P.C. before any evidence is recorded ?

7. The issue is no longer res-integra. It has been settled by a catena of decisions that the accused who have not been charge sheeted by the Investigating Officer cannot be arrayed as an accused at a premature stage under Section 319 Cr.P.C. They can only be arrayed as an accused in exercise of power under Section 319 Cr.P.C. when some material evidence are brought before the court during the course of trial.

8. As stated above, learned Magistrate has specifically used Section 319 Cr.P.C. for summoning the additional accused before recording any evidence. Section 319 Cr.P.C. postulates that where it appears from the evidence that any person not being accused has committed any offence for which such person can be tried together with accused the Court may proceed against such person. But the charge sheet and the statement recorded under Section 161 Cr.P.C cannot be treated as evidence for the purposes of Section 319 Cr.P.C. Section 319 Cr.P.C. operates only within the well defined narrow compass. No order under Section 319 Cr.P.C. can be passed without recording any evidence in the Court and on the basis of such evidence so recorded the Magistrate or any other court has to record its satisfaction before summoning the additional accused. Therefore, Section 319 Cr.P.C. has no role to play at a pre charge proceedings in a warrant trial.

9. The present case, in my view, is squarely covered by the law laid down by the Hon'ble Apex Court in the case of Ranjit Singh Vs State of Punjab (1998) 7 SCC 149 and the subsequent decision in Kishori Singh and others Vs State of Bihar and another reported in 2000(4) Crimes 158 (SC) reiterating the same legal position. In Ranjit Singh (supra), the Hon'ble Supreme Court was concerned with the issue whether the sessions court can add a new person to the array of the accused in a case pending before it at a stage prior to collecting any evidence. The three Judge Bench that considered the above issue referred to various provisions of the Code, namely, Sections 204, 207, 208, 209, 225, 226, 227, 228, 229, 230 and 319 and held as under :

"19. So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code, that court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused.

20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."

10. The above legal position has been reiterated by the Hon'ble Apex Court in a subsequent decision in Kishori Singh (supra), wherein after considering the earlier decision of this Court in Ranjit Singh (supra), it has been held as under :-

"9. After going through the provisions of the Code of the Criminal Procedure and the aforesaid two judgments and on examining the order dated 10-6-1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 CrPC.

10. So far as those persons against whom charge- sheet has not been filed, they can be arrayed as "accused persons" in exercise of powers under Section 319 CrPC when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three-Judge Bench decision. Neither of the contingencies has arisen in the case in hand."

11. Similarly, the Hon'ble Supreme Court in Sarojben Ashwinkumar Shah and others Vs State of Gujrat and another, 2011 (105) AIC 26 (SC) has laid down certain guidelines for exercise of power under Section 319 Cr.P.C.. These guidelines are as under:-

"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 under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 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 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, 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 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 consider the above aspects and then exercise its judicial discretion."

12. In view of above, the present revision is allowed. The impugned order dated dated 29.11.2004 passed by learned ACJM, Hapur, Ghaziabad in Criminal Case No. 168 of 204 (State Vs Arvind and others), under Sections 147,323,325,504,149,452 IPC, P.S. Hapur Dehat, Districe Ghaziabad is hereby quashed. It is needless to say that if during the course of trial, on the basis of the evidence it appears that any person not being the accused in the trial has committed the offence and the case is made out for exercise of power under Section 319 of the Code for proceeding against such person, it will be open to the Court to proceed in accordance with law.

Order Date :- 10.5.2013

RavindraKSingh