Pawan Kumar vs State Of U.P. & Another
2013 Latest Caselaw 5816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 12
 

 
Case :- CRIMINAL REVISION No. - 441 of 2010
 
Revisionist :- Pawan Kumar
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Ajai Krishna
 
Counsel for Opposite Party :- Govt. Advocate, Shafat Ullah Khan
 

 
Hon'ble Arvind Kumar Tripathi (II),J.

1 This criminal revision has been filed by Pawan Kumar against the order dated 4.10.2010 passed by the learned Additional Sessions Judge, Unnao by which the application of the prosecution under Section 319 Cr.P.C. was allowed.

2 The facts in nut shell are that FIR was lodged by Smt. Sarvari naming Brijpal, Jagdish, Arvind, Sushil and Pawan. After investigation charge sheet was submitted leaving the name of Pawan. After committal of the case PW-1 was examined, but before her cross examination an application under Section 319 Cr.P.C. was moved, which was allowed by the impugned order. Feeling aggrieved, this criminal revision has been filed.

3 It was submitted from the side of the revisionist that the trial court has, on the basis of uncross examined the testimony of PW-1 summoned the revisionist Pawan Kumar, which is not permitted in view of the decision of the Apex Court in the case of Mohd. Safi v. Mohd. Rafiq, (2007) 14 SCC 544. It was also submitted that the court below has not given any finding that unrebutted testimony of the witness is sufficient for conviction of the revisionist. In view of this the order passed by the is wrong.

4 Learned AGA argued that the trial court has passed the order according to the evidence and now, there is no requirement that the order under Section 319 may be passed only after cross examination.

5 Section 319 of the Code of Criminal Procedure reads as under: -

"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, 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 a fresh, 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."

6. In regard to necessity of cross examination of the prosecution witnesses before invoking section 319 Cr.P.C. the Apex Court observed in Hardeep Singh's case that it is, thus, difficult to accept the contention of the learned counsel for the appellants that the term 'evidence' used in sub-section (1) of section 319 of Cr.P.C. 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 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 should or should not be added as accused.

7. In the case of Harbhajan Singh & Another v. State of Punjab & another, 2009 (13) SCC 608, a division bench of the Apex Court has held that only because the correctness of a portion of the judgment in the case of Mohd. Shafi (supra) has been doubted by another bench, the same would not mean that we should wait for the decision of the larger bench, particularly when the same instead of assisting the appellants runs counter to their contention. The Division Bench further held that decision of this Court in the case of Mohd. Shafi (supra), therefore, in our opinion, is not an authority for the proposition that in each and every case the Court must wait till the cross-examination is over. The observation of the Apex Court in this regard is reproduced as follows: -

"We would assume that in all cases the court may not wait till cross-examination is over for the purpose of exercising its jurisdiction. In the aforementioned decision, the learned Judges had referred to a judgment of this Court in the case of Rakesh & Anr. v. State of Haryana (2001) 6 SCC 248 wherein it was held that even without cross-examination on the basis of a prima facie material which would enable the Sessions Court to decide whether the power under Section 319 of the Code should be exercised or not stating that at that stage evidence as used in Section 319 of the Code would not mean evidence which is tested by cross-examination.

.............. The decision of this Court in the case of Mohd. Shafi (supra), therefore, in our opinion, is not an authority for the proposition that in each and every case the Court must wait till the cross-examination is over." (para 13)

8. A survey of the aforesaid decisions clearly reveals that the power under section 319 Cr.P.C. is an extra ordinary power, which may be used very sparingly only if compelling or cogent reasons exist against the person sought to be summoned. The term 'evidence' used in section 319 Cr.P.C. does not necessarily mean the evidence which is tested by cross examination. The view expressed in the case of Mohd. Shafi (supra) in this regard, has not been subsequently followed by the Apex Court in the cases of Sarabjeet Singh and another v. State of Punjab and another, (2010) 2 SCC (Crl.) 141. The view expressed in the case of Sarabjeet Singh (supra) has also been expressed in the case of Rakesh v. State of Haryana, (2001) 6 SCC 248 = 2001 SCC (Crl.) 1090, Hardeep Singh (supra) and Harbhajan Singh and another (supra), therefore, a summoning order can not be set aside on the ground that the statements of the witnesses relied on by the court for passing the summoning order, have not been subjected to cross examination. It is true that a Division Bench of the Apex Court in Hardeep Singh's (supra) has referred the questions specified in paragraph 11 of this judgment to a Larger Bench but another Division Bench of the Apex Court in Harbhajan Singh's (supra) has observed that the same would not mean that we should wait the decision of the Larger Bench. The accused sought to be summoned, has no right to be heard on the application under section 319 Cr.P.C., therefore, he has no right to cross-examine the witnesses being examined for the purpose of section 319 Cr.P.C. The accused already facing the trial may or may not like to make cross-examination of the witnesses in regard to the complicity of the person sought to be summoned. Sometimes such accused may act even contrary to the interest of such persons. However, the court may, in its discretion, allow the accused already facing the trial to cross examine the witness or witnesses in relation to the complicity of the person sought to be summoned so as to enable it to render a just and proper order under section 319 Cr.P.C. In this view of the matter, there is no compulsion to get part or full cross-examination of the witnesses done before passing a summoning order under section 319 Cr.P.C. In appropriate cases if the complicity of a person not facing the trial and is not before the court as accused, comes in light in the statement of a witness, it is also open to the court to put relevant questions to the witness to ascertain prima facie correctness of the statement regarding complicity of that person. The Trial Judges and Magistrates have to play pivotal roles in the matter and should not act mere as silent spectators. Therefore, the summoning order under section 319 Cr.P.C. can not be quashed only on the ground that the witnesses have not been cross examined.

9. In para 11 of the case of Michael Machado v. CBI, (2000) 3 SCC 262 considering the basic requirement of Section 319 Cr.P.C. the Apex Court has held that "the basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects, first is that the other person has committed an offence, second is that for such offence that other person could as well be tried along with the already arraigned accused".

10. Highlighting the underlying object of the provision, the Apex Court proceeded to state in para 12 that "But even then, what is conferred on the court is only a discretion as could be discerned from the words 'the court may proceed against such person'. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons".

11. In the case of Krishnappa v. State of Karnataka, (2004) 7 SCC 792 the Apex Court ruled that power to summon an accused is an extraordinary power conferred upon the court, and it should be used very sparingly, and only if the compelling reasons exist for taking cognizance against the person other than the accused.

12. In the case of Rakesh v. State of Haryana (supra) the Apex Court has ruled that "an application under Section 319 Cr.P.C. is maintainable as even without completion of cross examination of a witness. If the court is satisfied on the basis of cross examination in chief of a witness that a person not shown to be an accused appears to have committed an offence".

13. In the case of Mohd. Safi v. Mohd. Rafiq, (2007) 14 SCC 544 the Apex Court has further held as under: -

"The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he though that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same." (para 12)

14. A perusal of above decisions of the Apex Court clearly reveals that before summoning any person as an accused for facing trial under Section 319 Cr.P.C. there must be a finding of the court that the evidence is such that the accused so summoned is, in all likelihood, would be convicted.

15. From the above discussions, it is clear that in the absence of any clear cut finding of the trial court that the unrebutted testimony of PW-1 is sufficient to convict the revisionist, the order is vitiated.

16. In view of the above, this revision is liable to be allowed, and is hereby allowed. The order dated 4.10.2010 is set aside. The matter is remanded back to the trial court for deciding afresh the application under Section 319 Cr.P.C. in the light of the Apex Court decisions mentioned above.

Order Date :- 16.9.2013

Anupam

(Justice Arvind Kumar Tripathi - II)