Sudhir And Another vs State Of U.P. And Another
2015 Latest Caselaw 522 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 

 
Case :- CRIMINAL REVISION No. - 1723 of 2015
 
Revisionist :- Sudhir And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Prashant Verma
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Heard learned counsel for the revisionists and learned A.G.A. for the State.

2. An F.I.R. was lodged by the father of the victim against the revisionists and others stating that on 28.2.2013 the victim and her brother had gone to the Bank for some work. At 11.30 a.m. when the brother of the victim came out of the bank, his sister Laxmi was missing. The  brother of the victim told that Sudhir, Shivam and Nirmal, who were standing outside the Bank, had called her out of the Bank and shopkeepers told that three boys had taken away the girl. Hence, the F.I.R. was lodged.

3. It has been contended on behalf of the revisionists that the revisionists were not charge sheeted and the revisionists were not named by the victim in her statement recorded under Section 164 Cr.P.C. It has further been argued that the matter of framing charge and summoning an accused persons under Section 319 Cr.P.C. rests on different footing. Inasmuch as while proceeding to frame charge, there must be prima facie  evidence whereas in order to summon a person under Section 319, some more clinching evidence is needed so that the court may believe that the accused can be convicted.

4. Counsel for the revisionist has placed reliance upon Sarabjit Singh and other Vs. State of Punjab and another, AIR 2009 SC 2792. Relevant parts of that Judgment read as under:-

"Section 319 of the Code 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 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."

12. The extent of the power of a Sessions Judge to summon persons other than the accused to stand trial in a pending case came up for consideration before this Court in Municipal Corporation of Delhi V. Ram Kishan Rastogi [(1983) 1 SCC 1]. Therein, this Court while holding that the provision confers a discretionary jurisdiction on the court added "this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken".

13. Interpretation of the aforementioned provision, in the light of the said decision, came up for consideration before various courts from time to time. We may take note of some of them.

In Shashikant Singh V. Tarkeshwar Singh, [(2002) 5 SCC 738], this Court held:-

"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 that 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 reheard. 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 the 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."

It was further more held:

"14. A Magistrate is empowered to take cognizance of an offence in the manner provided under Section 190 of the Code. Section 209 enjoins upon a Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Section 193 provides for the power of the Court of Session to take cognizance of any offence. It uses the expression "cognizance of any offence" and not that of "offender". These three provisions read with Section 319 make it clear that the words "could be tried together with the accused" in Section 319 are only for the purpose of finding out whether such a person could be put on trial for the offence..."

In Rakesh Vs. State of Haryana, [(2001) 6 SCC 248], this Court held:

"13. 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 the 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. The 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 is to be added as accused or not. The word " evidence" occurring in Sub-section (1) is used in a comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the court and from which the court can prima facie conclude that the person not arraigned before it is involved in the commission of the crime."

In Ranjit Singh V. State of Punjab, [(1998)7 SCC 149, this Court opined:

"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.

21. But then one more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to a miscarriage of justice), is the Sessions Court completely powerless to deal with such a contingency? One such situation is cited by the learned Judges through an illustration narrated in Kushun Singh case as follows: (SCC pp.29-30, para 15):

"[W]here to persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challaned by the police, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34 IPC. If he cannot summon A, how does he frame the charge against B?"

22. Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of the accused due to some inadvertence or omission. Should the court wait until evidence is collected to get that person arraigned in the case?"

5. Counsel for the revisionists have attached the statement of the father of the victim in which he has stated that people told him that Nirmal, Sudhir and Shivam had taken away the victim. He has further submitted that in his cross-examination, he has stated that he does not have personal knowledge as to who took away the girl. Thus, this evidence being hearsay in nature  is not permissible under the provision of Indian Evidence Act. On the other hand, learned A.G.A. has submitted that the revisionists had concealed certain facts. Inasmuch as statement of P.W. 4 has been recorded in which  it was stated that Nirmal, Sudhir and Shivam called the victim  and forcibly took her at Haridwar and established physical relations with the girl. There is  allegation of gang rape also against the present revisionists. This evidence is clinching. As such, there is no reason to believe that the trial will only end in acquittal. The order of the trial Judge does not suffer from any illegality, irregularity and impropriety and needs no interference.

6. The revision is accordingly dismissed.

Order Date :- 15.5.2015

Ram Murti