Mukesh Kumar And Anr. vs State Of U.P. And Anr.
2013 Latest Caselaw 6107 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

COURT NO. 50
 

 
CRIMINAL REVISION NO. 2105 OF 2013
 

 
Revisionist - Mukesh Kumar and another
 

 
Opposite parites : State of U. P. and another
 

 
Counsel for the Revisionist    :      Sri Satish Trivedi, Sr. Advocate 						    assisted by Sri Sheshadri Trivedi
 

 
Counsel for opposite party  no. 1 : AGA
 

 
Counsel for opposite party no. 2 : Sri S. C. Misra and P. C. Trivedi, 						    Advocates
 

 
Hon'ble Anil Kumar Sharma, J
 

 
	Heard parties' counsel at length and perused the record.
 
2.	This revision challenges the order dated 15.7.2013 passed by Addl. C.J.M. Court no. 9, Allahabad in Application no. 42/XII of 2013 Vakil Ahmad Vs. Gabbar Yadav and others, whereby the application filed by the revisionist u/s 156 (3) had been rejected.
 
3.	Facts

germane to the revision that on 13.8.2006 at about 3.35 p.m. opposite party no. 2 submitted a written report in P. S. Rajapur District Chittrakoot alleging that his son on 12.8.2006 was talking with Ghanshyam Dwivedi at the betel shop situated at the gate of the Hospital and he himself was also there. At about 5.00 p.m. on one motor cycle Ram Charit Pandey, Ramraj Mishra and Mukesh Kumar and on the other Deepu Mishra and Baccha Agarwal @ Subhash came there. Ramraj and Mukesh were having rifles and Ram Charit was driving the motor cycle and Deepu Mishra had a rifle and Bachcha Agarwal was armed with country made pistol came and Ramraj fired three shots from his rifle, one of the shot hit his son on the stomach, who was admitted in Rajapur hospital but the doctors referred him for Allahabad and he died on way to Allahabad. The police investigation culminated in charge-sheet only against Ramraj Mishra and Ram Charit Pandey. During trial statements of complainant as PW-1 and eye witness Ghanshyam Dwivedi were recorded. On 18.5.2013 the Senior Prosecution Officer filed an application for summoning the revisionists and Bachcha Agarwal stating that their complicity in the crime has been found in the testimony of witnesses of fact, and if their statements remained uncontroverted then they can also be convicted with other coaccused. The trial Court after hearing, allowed the application through impugned order. Aggrieved, the revisionists have come up in revision.

4. It has been argued by the learned senior counsel on behalf of the revisionists that the learned trial court has ignored the evidence contained in the case diary collected by the investigating officer for concluding innocence of the revisionists; that the application u/s 319 Cr. P. C. had been filed after lapse of five years since the depositions of P.W. 1 and P.W. 2 were recorded in the trial Court and no explanation had been given for this inordinate delay. He has fairly conceded that although the trial Court has considered the legal position with regard to the exercise of powers u/s 319 Cr. P. C. for summoning the accused but main controversy is as to the stage when the revisionists could be summoned in the exercise of its jurisdiction under the aforesaid section. He further submitted that in the entire impugned order there is no whisper as to why the prosecution had slept over the matter for more than five years, this aspect of the matter has not been considered by the trial Court. The trial is at the stage of conclusion and there is absolutely no justification, either factual or legal to summon the revisionists and then to commence de novo trial. The application filed by the prosecution is quite vague, frivolous and mischievous and the sole object of the said application is to further dilate and protract the trial. Lastly it has been submitted that the trial court has also failed to notice that the power vested in it u/s 319 Cr. P. C. is an extra ordinary and it can exercise such powers only after applying the stringent tests and that too sparingly, thus the impugned order is wholly void and non sustainable and deserves to be set aside.

5. Per contra the learned AGA and learned counsel for the opposite party no. 2 have argued that the powers u/s 319 Cr. P. C. can be exercised by the Court suo motu at any stage of the case if it appears from the evidence adduced before it that any other person has also committed the offence. He maintained that the learned trial Court has elaborately discussed the facts of the case and evidence adduced by PW 1 and PW 2 in support of the prosecution case as also the law on the point. The impugned order is perfectly legal and the learned trial Court has not exceeded its jurisdiction vested in it by the law.

6. Section 319 Cr. P. C. provides as under:

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 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."

7. In Michael Machado and another Vs. CBI and another (2000 (3) SCC 262) it was observed as follows:-

"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.

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 other 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.

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 recommended 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 large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action"

8. In Kishun Singh v. State of Bihar (1993) 2 SCC 16, it was observed:

"11. On a plain reading of Sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial where from 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. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. ........................"

9. On perusal of the impugned order of the learned Addl. Sessions Judge, it is apparent that he has based his findings on the testimony of PW-1 and PW-2, who are eye witnesses of the day light murder case. PW-1 is the father of the deceased and he has lodged the report naming the present revisionists as well as accused in the case. Both these witnesses have also specified the role of each revisionist in the incident. The impugned order has been passed after both the above witnesses of fact were duly cross-examined before the trial Court. At this stage only the evidence adduced in the Court shall be taken into consideration and not which is contained in the case diary. Since, the learned trial Court has correctly appreciated the evidence, so it is not necessary to burden this order in repeating the same.

10. The only core question that has been canvassed by the learned senior counsel for the revisionists is that the application u/s 319 Cr. P. C. has been filed with inordinate delay without giving any explanation for it, so the learned trial Court has erred in taking cognizance against the revisionists at the stage of conclusion of the trial. No doubt in the instant the Senior Prosecuting Officer has filed application u/s 319 Cr. P. C. at a belated stage i. e. after recording of depositions of 6-PWs, but that alone would not mean that the application is not maintainable because the powers u/s 319 Cr. P. C. can be exercised by the Court at any stage either suo motu or on an application filed by the complainant or the prosecution i. e. the Public Prosecutor. It is important to note that the application u/s 319 Cr. P. C. has not been filed by the opposite party no. 2, but it has been moved by the Senior Prosecuting Officer conducting the case in the trial Court on behalf of the State. The revisionists have filed copy of the order sheet of the case from 19.11.2010 to 7.6.2013. Perusal of this order sheet shows that the session trial was pending in the vacant Court of ASJ/FTC-1, Chittrakoot and on 8.4.2011 it was transferred to the Court Addl. Sessions Judge Court no.1. On 24.11.2011 Sessions Judge recalled the case on its own file, but again transferred to the Court of Addl. Sessions Judge, Court no. 3 on 6.1.2012. However, on 6.8.2012 the case was again recalled and transferred to the Court of Addl. Sessions Judge, Court no. 2 for disposal. Such frequent transfer of the murder trial from one Court to the other is wholly unwarranted as it not only affects the disposal of the case, but is also prejudicial to the parties. The defence counsel remains the same or it may be at the choice of the accused, but the Public Prosecutor conducting the case is always changed by the transfer of the case frequently, which naturally affects the quality of the prosecution. The order sheet filed in the Court further shows that the complainant had not engaged any counsel to plead the case on his behalf in the trial Court. The statements of PW-1 and were recorded from 7.12.2007 to 1.4.2008. The Public Prosecutor conducting the case ought to have filed application u/s 319 Cr. P. C. soon after the conclusion of the deposition of PW-2 on 1.4.2008, but for reasons best known to him, he did not do so. Thus, for the callous attitude of the Public Prosecutor, the complainant, who has lost his only son in the incident, cannot be made to suffer and the application cannot be rejected merely on the ground of delay. The Court also owes a duty to see that all the offenders of the crime should be put to trial, as the language of Section 319 Cr. P. C. does not require that filing of application for summoning additional accused not charge-sheeted by the police must be filed by the prosecution or the complainant.

11. In Appeal (Crl.) 1019 of 2007 Rajendra Singh Vs. U. P. & Anr decided by the Apex Court on 6.8.2007, the order of the trial Court allowing application u/s 319 Cr. P. C. was restored but that of this Court passed in proceedings u/s 482 Cr. P.C. was set aside at the stage when the other co-accused facing trial was acquitted by the trial Court and revision filed by the complainant challenging his acquittal was pending in this Court. The Apex Court usefully referred the case of Shashikant Singh Vs. Tarkeshwar Singh wherein (2002) 5 SCC 738. in para 9 of the report, it was held as under :

"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."

12. In view of the above discussion, I do not find any illegality, irregularity or jurisdictional error in the impugned order passed by the learned trial Court summoning the revisionists in exercise of powers u/s 319 Cr. P. C. along with Bachcha Agarwal to face trial. The revision sans merit and is accordingly dismissed.

(Anil Kumar Sharma, J)

September 27, 2013

KCS