Balbeer vs State Of U.P. And 2 Others
2016 Latest Caselaw 4632 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved Judgment
 
Court No. 8
 

 
Case :- CRIMINAL REVISION No. - 3828 of 2014 
 

 
Revisionist :- Balbeer 
 
Opposite Party :- State Of U.P. And 2 Others 
 
Counsel for Revisionist :- Vivek Kumar Singh,Mayank Yadav 
 
Counsel for Opposite Party :- Govt.Advocate,Rajesh Yadav 
 

 
Hon'ble Shashi Kant,J. 

1. Heard learned counsel for the revisionist, learned A.G.A. for the State and Sri Rajesh Yadav, learned counsel for Opposite Party Nos. 2 and 3.

2. Since, after exchange of counter and rejoinder affidavit pleadings are complete, therefore, with the consent of learned counsel for the parties this revision is being finally heard and decided.

3. This criminal revision under section 397/401 of Criminal Procedure Code, 1973 (In short 'Cr.P.C.') has been filed against the order dated 27.9.2013 passed by Additional Sessions Judge, Court No. 9, Budaun in S.T. No. 818 of 2003 - State Versus Rajendra and others, under sections 147,148,149,302 of Indian Penal Code, 1860 (In short 'I.P.C.'), whereby application (98-Ka) under section 319 Cr.P.C. filed by the revisionist for summoning of additional accused was rejected.

4. It is submitted by learned counsel for the revisionist that:

4.1 While passing the impugned order, the Lower Court has not applied its judicial mind and passed an illegal order. The lower court has failed to consider that specific role has been assigned to the proposed accused. They were nominated in the FIR and all the witnesses examined by the prosecution i.e. complainant-revisionists P.W. 1 Balbeer, P.W. 2 Kishan Pal, P.W. 3 Ramveer and PW-4 Jogendra have also specified their roles in their respective statements recorded before the Trial Court.

4.2 Though earlier application filed by the complainant-revisionist under section 319 Cr.P.C. was rejected by the Lower Court but it will not affect the fate of the subsequent application moved by the complainant revisionist because earlier application was rejected on the ground that till that time cross examination of the complainant-revisionist was not started and other witnesses were also not examined. But now the witnesses of facts, P.W. 1,P.W. 2, P.W. 3 and PW-4 were examined and they were cross examined by the defence.

4.3 The delay which has been caused in moving the application is due to time consumed in the examination of the prosecution witnesses and their cross examination.

4.4 To buttress his arguments, learned counsel for the revisionist has placed reliance on a judgment in the case of Hardeep Singh Versus State of Punjab 2013(85) A.C.C. 313.

5. Per contra, Sri Rajesh Yadav, learned counsel for O.P. Nos. 2 and 3, controverting the above submissions of the learned counsel for the revisionist urged that:

5.1 Admittedly, earlier application filed by the complainant-revisionist under section 319 Cr.P.C. was heard and rejected on merits vide order dated 3.8.2006.

5.2 After completion of the evidence of the prosecution, the case was fixed on 23.9.2013 for recording the statements of accused respondent under section 313 Cr.P.C. and subsequent to that second application under section 319 Cr.PC. has been filed for summoning of O.P. Nos. 2 and 3, which is not maintainable.

5.3 The Lower Court has passed a perfectly just and legal order, recording sufficient reasons for passing the same alongwith discussion of the relevant case laws as such there is no illegality or irregularity in the impugned order.

5.4 The revision lacks merits and is liable to be dismissed.

6. I have given my careful consideration to the rival arguments raised by learned counsel for the parties and perused the record.

7. From perusal of impugned judgment and order dated 27.09.2013, passed on the earlier application of the revisionist under Section 319 Cr.P.C. it is clear that earlier application filed by the complainant revisionist was rejected on the ground that prosecution witness was not cross examined by the defence, but now that defect has been cured by examination and cross examination of prosecution witnesses namely PW 1 - Balveer, PW 2 - Krishanpal, PW 3 - Ramveer and PW-4 Jogendra, as such rejection of earlier application of the complainant revisionist under section 319 Cr.P.C. will not affect the merits of second application of the complainant moved under section 319 Cr.PC. for summoning of O.P. Nos. 2 and 3.

8. In view of the above, now, only it has to be seen as to whether on the ground that the application of the complainant- revisionist moved under section 319 Cr.P.C. with delay of more than 8 years after rejection of earlier application at the stage of recording statement under Section 313 Cr.P.C. will preclude its filing. In other words, whether on the above grounds, aforesaid application under section 319 Cr.P.C. is not maintainable and liable to be rejected?

9. To find out the answer of above question, relevant legal provisions and case laws on the point is desired to be taken into consideration, which are being referred hereinafter.

10. Sections 227, 228 and 319 Cr.P.C. are relevant for the purpose of this revision, which read as under :

Section 227 Cr.P.C.

Discharge

"227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Section 228 Cr.P.C.

Framing of Charge.

"228. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offences in accordance with the procedure for the trial of warrant-cases instituted on a police report ;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

Section 319 Cr.P.C.

"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."

11. In State of Assam Versus Abdul Halim A.I.R. 1992 S.C. 2068. Hon'ble Apex Court has set aside the decision of the Division Bench of the High Court of Guwahati in exercise of inherent jurisdiction and quashed the order of the learned Single Judge passed, in Criminal revision no. 155 of 1978 dated 12.12.1978. The order impugned in the above Criminal Revision was passed by the Sessions Judge of Nawagaon in Sessions Case No. 18(N)/74, during the trial of murder case, in exercise of the powers conferred under section 319 Cr.P.C., proposed five accused respondents before the Apex Court, were summoned to be tried together with four other original accused already committed by the magistrate to face trial under section 302/34 I.P.C. Non Bailable Warrants were also issued against proposed accused. However, keeping in view the fact that order of Sessions Judge was dated 23.9.1974 i.e. 18 years prior and status or the result of the Sessions case was also not available before the Court, the Hon'ble Apex Court has allowed the appeal with the direction not to proceed against the respondents.

12. In the case of Brijesh Kumar and another Versus State of U.P. and others 2003 All.L.J. At page 52 the Court in para 11 had held :-

"11. So far the prima facie evidence regarding involvement of the applicants in the offence is concerned there is evidence of Onkar Singh ( P.W. 1) and Dalveer Singh( P.W. 5). These witnesses have stated the involvement of the applicants in the offence and corroborated F.I.R. Version. However, three other witnesses Jai Naraian( P.W. 2, Khajan Singh( P.W.3) and Udaiveer Singh( P.W.4) have not stated about the involvement of the applicants. But at this stage it cannot be said as to which of the witnesses are reliable and which are concealing the truth before the Court. The reliability of the witnesses shall be decided by the trial court at the appropriate stage. It is sufficient for purposes of this revision to observe that the two witnesses have stated about the involvement of the applicants and therefore there was sufficient ground for the learned session judge to summon the applicants under section 319 Cr.P.C."

13. In Amar Nath Versus State of Haryana 1997 (4) SCC 137 it was held that:-

"13.The Apex Court has held that a person summoned as additional accused,when in the meantime trial of main case concludes, additional accused has to face trial because de novo trial has to be held qua him. The pointed question raised was that the additional accused could be tried only with the accused Who was being already tried and that if the trial qua the said accused has concluded, the additional accused cannot be tried pursuant to order passed under Section 319 of the Code. This view has been rejected and the Apex Court has held that even if trial of the accused who was being tried has concluded and that the power has been invoked under Section 319 and the additional accused has been summoned to stand the trial, the de novo trial shall be held and that in such a situation the summoning order shall not become inoperative.

14. The question had once again come up for consideration before the Apex Court as to what is the effect of conclusion of trial against the accused who was being proceeded with, when the order is passed under Section 319(1) for proceeding against newly added person. The Apex Court has observed in re : Shashikant Singh v. Tarkeshwar Singh (2002) 3 Rec Cri R 191 : (2002 Cri LJ 2806), as under :--

"8. The effect of the conclusion of the trial against the accused who was being proceeded with when the order was passed under Section 319(1) for proceeding against the newly added person, is to be examined in the light of Sub-section (4) of Section 319 which stipulates a de novo trial in respect of the newly added persons and certain settled principles of interpretation.

9. When a statute is passed for the purpose of enabling something to be done, and prescribes the way in which it is to be done, it may be either an absolute enactment or a directory enactment. The difference being an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. (Craies on Statute Law, 7th Edn. pages 260-262).

10. 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 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 person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of cross- examination of the newly added accused is 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.

11. Where a statute does not consist merely of one enactment, but contains a number of different provisions regulating the manner in which something is to be done, it often happens that some of these provisions are to be treated as being directory only, while others are to be considered absolute and essential; that to say some of the provisions may be disregarded without rendering invalid the things to be done, but others not. (Craies on Statute Law, 7th Edn. Page 266- 267).

12. The mandate of the law of fresh trial is mandatory whereas the mandate that newly added accused could be tried together the accused directly.

13. On facts, the court could not have intended while concluding the trial against Chandra Shekhar Singh,to nullify its earlier order directing issue of warrants against respondent No. 1. The construction to be placed on a provision like this has to commend to justice and reason. It has to be reasonable construction to promote the ends of justice. The words 'could be' tried together with the accused, in Section 319(1) cannot be said to be capable of only one construction. If it was so approach to be adopted would be different since the intention of the Parliament is to be respected despite the consequences of interpretation. There is, however, a scope for two possible constructions. That being the position, a reasonable and common sense approach deserves to be adopted and preferred rather than a construction that would lead to absurd results of respondent No. 1 escaping the trial despite passing of all order against him on Court's satisfaction under Section 319(1) and despite the fact that the proceedings against him have to commence afresh. In this view, the fact that trial against Chandra Shekhar Singh has already concluded is of no consequence insofar as respondent No. 1 is concerned.

15. The powers conferred under Section 319(1) of the Code are extraordinary powers and it enjoins upon the Court to summon a person not being the accused to stand trial if the Court is of the view that such person has committed the offence. The words "in the course of inquiry into, or trial of an offence" would only indicate that if the Court while conducting the trial comes to a conclusion that such other person also seems to be involved, summoning orders can be issued. The other word i.e. "tried together with the accused" have been qualified under Sub-section (4) of Section 319 i.e. the proceedings in respect of such person shall be commenced a afresh and the witnesses reheard. Thus, the trial of such person together with the accused stands qualified that even if the trial in respect of the accused has concluded, the additional accused can be tried. The powers of the Court have not been put into water tight jacket to be used with buts and ifs. The scope is much wider. It is obvious that the facts would be divulged only in the course of inquiry into, or when the trial has commenced and is going on qua the accused already named. The word"any person not being the accused" has also been interpreted that even if a person has not been proceeded against by the prosecution, though his name has occurred in the complaint/FIR, would not deter the power of the Court to proceed under Section 319. The scope of and object of the aforesaid provision is that if a fact is disclosed/divulged during the aforesaid stages, the Court would be competent to proceed against such person.

16. I am of the opinion that in the case at hand, the Magistrate has correctly summoned the petitioner to stand trial upon the basis of the facts which have been disclosed during the trial. The extraordinary powers which have been conferred upon the Courts by virtue of Section 319, cannot be allowed to be diluted by any buts and ifs and the rigor of any other procedural provision. The power is so explicit as the legislature did not want that any person who may be found guilty on the occasion when the evidence is disclosed before the Court should go scot free. A word of caution needs to be followed that the power has to be exercised cautiously and with an endeavour that no one should suffer unnecessarily. It is categorically required that the Court must apply its mind before invocation of extraordinary power. Once such power has been exercised, normally the process and procedure should be allowed to be followed."

14. In Radha Mohan Gond Versus State of Bihar 2006 Cri.L.J. 3533 Patna High Court said as under :-

"6. Section 319 of the Code provides that such person summoned there under could be tried together with the other accused already facing trial. When this happens the proceedings in respect of such persons shall commence afresh and the witnesses reheard. In essence, the submission of the petitioners is that if powers under Section 319 Cr.P.C. have been exercised any person summoned there under must be tried along with other accused already facing trial and the entire trial must commence denovo with fresh examination in chief and cross-examination of the witnesses for the prosecution and the defence.

8. The emerging position in law thus is that the trial in respect of a person summoned under Section 319 of the Code had mandatorily to be commenced afresh denovo, it was not mandatory that such person be only tried along with other accused.

9. In view of the aforesaid discussion and the judicious reasons given by the court below separating the trial of the present petitioners from the other accused this Court finds no reason to interfere with the same. In any event, no prejudice shall be caused to the petitioners.

10. The petitioners have clearly been named by the victim in his deposition. This Court can do no better than rely upon a judgment of the Supreme Court in the case of Rakesh v. State of Haryana . The appellant therein had been summoned in exercise of powers under Section 319 Cr.P.C. in a case under Section 376 and other provisions. Their Lordships at paragraph 14 of the judgment held:

"............In our view, there cannot be a dispute that power under Section 319 is to be sparingly used. But that would not mean, that when a prosecutrix names three persons who were involved in the serious crime are not to be added as accused by exercise of such power."

11. The facts of this case reflects that the petitioners have been summoned on basis of the deposition of the victim of abduction who has named the petitioners as participants. The fact that they may not have been involved at the time of actual abduction but had met the abductors and given them arms whereafter the abductors proceeded with the victim, to this Court is not of much relevance at this stage."

15. In Bholu Ram Versus State of Punjab and others 2008 (9) SCC 140 Hon'ble Apex Court has taken into consideration the time limit for filing application under section 319 Cr.P.C. and correctness or otherwise of evidence and held as follows :

"19. Section      319    of    the       Code    empowers  a Court to proceed against any person not shown to    be    an    accused   if   it   appears  from the evidence that such person has also committed an offence for which he can be tried together with  the accused. 
 
	..................
 
21.  Sometimes a Magistrate while hearing a case against one or more accused finds from the evidence that   some   person   other  than    the accused before him is also involved in that very  offence. It  is only  proper that  a Magistrate  should have  power to summon by joining such person as an accused in the case. The primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be regarded and    conceded     as  incidental  and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.                  
 

22. It is also settled law that power under Section 319 can be exercised either on an application made to the Court or by the Court suo motu. It is in the discretion of the Court to take an action under the said section and the Court is expected to exercise the discretion judicially and judiciously having regard to the facts and circumstances of each case.

23. In the instant case, an FIR was lodged against the appellant in August, 1986. But it was during the course of trial that it came to light that signatures of respondent No. 2 were also taken and were sent for examination and a report was received showing that the signatures on the basis of which amount was withdrawn tallied with the signatures of respondent No. 2. The said report, however, was not filed by the prosecution. It was in these circumstances that the appellant made applications in 1994 and in 1996 under Section 319 of the Code requesting the learned Magistrate to join respondent No. 2 as accused and to summon him.

24. The contention of the learned counsel for respondent No. 2 is that the power under Section 319 of the Code, cannot be exercised belatedly by the Court. Again, such order can be made only on the application by the Public Prosecutor or by some person other than the accused. In other words, an application under Section 319 cannot be filed by a person who is facing the trial.

25. We are unable to uphold the contentions. We have quoted Section 319 of the Code. It nowhere states that such an application can be filed by a person other than the accused. It also does not prescribe any time limit within which such application should be filed in the Court......"

16. A Constitution Bench of Hon'ble Apex Court consisting five Judges in Hardeep Singh Vs. State of Punjab and Others [2014 (85) ACC 313], has considered the various aspects of Section 319 Cr.P.C. for the purpose of summoning additional accused and framed five questions for its consideration.

16.1 In Hardeep Singh (supra) Hon'ble Apex Court has considered the decisions rendered in the cases of Raghubans Dubey Vs. State of Bihar [1968 (5) ACC 69 (SC)]; State of U.P. Vs. Lakshmi Brahman and Another [1983 (20) ACC 161 (SC)]; Raj Kishore Prasad Vs. State of Bihar and Another [AIR 1996 SC 1931]; Moly and Another Vs. State of Kerala [2004 (49) ACC 103 (SC)]; State of Bihar Vs. Ram Naresh Pandey and Another [AIR 1957 SC 389]; Ratilal Bhanji Mithani Vs. State of Maharashtra and Others [AIR 1979 SC 94]; V.C. Shukla Vs. State through C.B.I. [AIR 1980 SC 962]; Union of India and Others Vs. Major General Madan Lal Yadav (Retd.) [AIR 1996 SC 1340]; "Common Cause" a Registered Society thr. Its Director Vs. Union of India and Others [AIR 1997 SC 1539]; In Re: Narayanaswamy Naidu Vs. Unknown [1 Ind Cas 228]; Sriramulu Vs. Veerasalingam [(1914) ILR 38 Mad. 585]; Dagdu Govindshet Wani Vs. Punja Vedu Wani [(1936) 38 Bom. LR 1189]; Gomer Sirda Vs. Queen-Empress [(1898) ILR 25 Cal. 863]; Sahib Din Vs. The Crown [(1922) ILR 3 Lah. 115]; Fakhruddin Vs. The Crown [(1924) ILR 6 Lah. 176]; Labhsing Vs. Emperor [(1934) 35 CrLJ 1261] and held in paragraph no. 43 as under :

"43. .........as soon as the Court frames the charges, the trial commences, and therefore, the power under Section 319 (1), Cr.P.C. can be exercised at any time after the charge sheet is filed and before the pronouncement of judgment, ............."

(Emphasis supplied by this Court)

16.2 While considering the scope of word 'evidence' used in Section 3 of the Evidence Act, which defines meaning of word 'evidence'. Hon'ble Apex Court has discussed meaning of the word 'evidence' according to Tomlins Law Dictionary as well as decisions rendered in the cases of M/s Mahalakshmi Oil Mills Vs. State of A.P. [AIR 1989 SC 335]; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others [(1990) 3 SCC 682]; P. Kasilingam and Others Vs. P. S.G. College of Technology and others [AIR 1995 SC 1395]; Hamdard (Wakf) Laboratories Vs. Dy. Labour Commissioner and Others [AIR 2008 SC 968]; Ponds India Ltd. (merged with H.L. Limited) Vs. Commissioner of Trade Tax, Lucknow [(2008) 8 SCC 369]; Feroze N. Dotivala Vs. P.M. Wadhwani and Others [(2003) 1 SCC 433]; Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri and Another [AIR 2011 SC 760]; Ameer Trding Corporation Ltd. Vs. Shapoorji Data Processing Ltd. [AIR 2004 SC 355]; Omkar Namdeo Jadhao and Others Vs. Second Additional Sessions Judge Buldana and Another [AIR 1997 SC 331]; Ram Swaroop and Others Vs. State of Rajasthan [AIR 2004 SC 2943]; Poda Narayana and Others Vs. State of A.P. [AIR 1975 SC 1252]; Sat Paul Vs. Delhi Administration [AIR 1976 SC 294]; State (Delhi Administration) Vs. Laxman Kumar and Others [AIR 1986 SC 250]; Lok Ram Vs. Nihal Singh and Another [AIR 2006 SC 1892]; Ramnarayan Mor and Another Vs. State of Maharashtra [AIR 1964 SC 949]; Sunil Mehta and Another Vs. State of Gujarat and Another [JT 2013 (3) SC 328]; Guriya @ Tabassum Tauquir and Others Vs. State of Bihar and Another [AIR 2008 SC 95]; Kishun Singh and Others Vs. State of Bihar [(193) 2 SCC 16]; Ranjit Singh Vs. State of Punjab [AIR 1998 SC 3148]; Lal Suraj @ Suraj Singh and Another Vs. State of Jharkhand [(2009) 2 SCC 696]; Rajendra Singh Vs. State of U.P. and Another [AIR 2007 SC 2786], and thereafter, held in paragraph nos. 68 and 69 as under

"68. ......Court should not exercise the power under section 319, Cr.P.C. on the basis of materials available in the charge sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. The word 'evidence' in section 319,Cr.P.C. contemplates the evidence of witnesses given in the Court.

69............Therefore, for the exercise of power under section 319, Cr.P.C., the use of word 'evidence' means material that has come before the Court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the Court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under section 319, Cr.P.C."

16.3. Hon'ble Apex Court further held in paragraph no. 80 of the judgment as under :

"80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the Court after cognizance is taken and before the trial commences, can be utilised only for coroboration and to support the evidence recorded by the Court to invoke the power under section 319, Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial."

16.4 In Hardeep Singh (supra) Hon'ble Apex Court has also examined scope and meaning of the word 'evidence' used in section 319 Cr.P.C. i.e. Whether it is examination in chief only or also together with cross-examination? The Court relying upon the decisions in the cases of Rakesh Vs. State of Haryana [2001 (43) ACC 392 (SC)]; Ranjit Singh Vs. State of Punjab [AIR 1998 SC 3148]; Mohd. Shafi Vs. Mohd. Rafiq and Another [AIR 2007 SC 1899]; Harbhajan Singh and Another Vs. State of Punjab and Another [(2009) 13 SCC 608] and held in paragraph 85 of the judgment as under :

"85. Thus, in view of the above, we hold that power under section 319, Cr.P.C. can be exercised at the stage of completion of examination in chief and Court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the Court recorded by the Court, in respect of complicity of some other person(s), not facing the trial in the offence."

16.5 In Hardeep Singh (supra) Hon'ble Apex Court has also considered the question regarding degree of satisfaction required for invoking power under Section 319 Cr.P.C. While replying this question Hon'ble Apex Court has taken into consideration the decisions rendered in the cases of Pyare Lal Bhargava Vs. State of Rajasthan [AIR 1963 SC 1094]; Ram Singh and Others Vs. Ram Niwas and Another [(2009) 14 SCC 25]; Vikas Vs. State of Rajasthan [2013 (131) AIC 129 (SC)]; Rajendra Singh Vs. State of U.P. and Another [AIR 2007 SC 2786]; Mohd. Shafi Vs. Mohd. Rafiq and Another [AIR 2007 SC 1899]; Sarabjit Singh and Another Vs. State of Punjab and Another [AIR 2009 SC 2792]; Brindaban Das and Others Vs. State of West Bengal [AIR 2009 SC 1248]; Michael Machado and Another Vs. Central Bureau of Investigation and Others [AIR 2000 SC 1127]; State of Karnataka Vs. L. Munishwamy and Others [AIR 1977 SC 1489]; All India Bank Officers' Confederation etc. Vs. Union of India and Others [AIR 1989 SC 2045]; Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia [(1989) 1 SCC 715]; Stte of M.P. Vs. Dr. Krishna Chandra Saksena [(1996) 11 SCC 439]; State of M.P. Vs. Mohan Lal Soni [AIR 2000 SC 2583]; Dilawar Babu Kurane Vs. State of Maharashtra [ AIR 2002 SC 564]; Union of India Vs. Prafulla Kumar Samal and Another [AIR 1979 SC 366]; Suresh Vs. State of Maharashtra [AIR 2001 SC 1375]; Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya [AIR 1990 SC 1962]; State of Maharashtra Vs. Priya Sharan Maharaj [AIR 1997 SC 2041]; State of Bihar Vs. Ramesh Singh [AIR 1977 SC 2018]; Palanisamy Gounder and Another Vs. State, represented by Inspector of Police [(2005) 12 SCC 327] and replied the above question in paragraph no. 99 as under :

"99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the Court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising, power under section 319, Cr.P.C. In section 319, Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under section 319, Cr.P.C. to form any opinion as to the guilt of the accused."

16.6 After considering various aspects of the matter in detail, Hon'ble Apex Court has replied various questions framed by it in paragraph no. 110, as under :

"110. We accordingly sum up our conclusions as follows :

Question Nos. I & III

Q.I What is the stage at which power under Section 319, Cr.P.C. can be exercised?

AND

Q. III Whether the word "evidence" used in section 319 (1), Cr.P.C. has been used in comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under section 193, Cr.P.C. and the Sessions Judge need not wait till "evidence" under Section 319, Cr.P.C. becomes available for summoning an additional accused.

Section 319, Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an enquiry can only be understood to be a pre-trial inquiry. Inquiries under sections 200, 201 and 202, Cr.P.C.; and under section 398, Cr.P.C. are species of the inquiry contemplated by section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the Court after the trial commences, for the exercise of power under section 319, Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge sheet.

In view of above position the word 'evidence' in section 319, Cr.P.C. has to be broadly understood and not literally i.e., as evidence brought during a trial.

Question No. II

Q. II Whether the word "evidence" used in section 319(1), Cr.P.C. could only mean evidence tested by cross-examination for the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

A. Considering the fact that under section 319, Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under section 319(4), Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question No. IV

Q.IV What is the nature of the satisfaction required to invoke the power under section 319, Cr.P.C. to arraign an accused? Whether the power section 319(1), Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted?

A. Though under section 319(4), Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under section 319, Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on the account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question No. V

Q. V Does the power under section 319, Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?

A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319, Cr.P.C. Provided from the evidence it appears that such person can be tried alongwith the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of sections 300 and 398, Cr.P.C. has to be complied with before he can be summoned afresh.

The matters be placed before the appropriate Bench for final disposal in accordance with law explained herein above.

Reference Answered Accordingly."

17. Hon'ble Supreme Court in Jogendra Yadav and Others Vs. State of Bihar and Others [MANU/SC/0833/2015], held in paragraph 11 as under :

"11. ............... In fact it may be noted that the mandate of Section 228, Code of Criminal Procedure, is that the Judge only need be of "opinion that there is ground for presuming that the accused has committed an offence...." before framing a charge. In fact this Court has held in Ajay Kumar Parmar v. State of Rajasthan reported in MANU/SC/0795/2012 : (2012 12 SCC 406 that appreciation of evidence at the stage of Section 227 of the Code of Criminal Procedure, is not permissible (vide para 17). It is, therefore, clear that an order for addition of an accused made after considering the evidence cannot be undone by coming to the conclusion that there is no sufficient ground for proceeding against the accused without appreciation of evidence."

18. Hon'ble Supreme Court in State of Madhya Pradesh Vs. Rakesh Mishra (alongwith connected matter) [(2015) 13 SCC 8], held in paragraph 13, as under :

"13. Although we do not wish to comment on the merits of the case as this is the pre-trial stage, yet we are of the view that there exists sufficient material to make out a prima facie case against the accused. Therefore, these criminal appeals are allowed, the order passed by the High Court is set aside and the order of the Additional Sessions Judge framing charges is restored."

19. In Criminal Revision No. 3822 of 2007 - Harveer Singh and Others Vs. State of U.P. and Another (decided on 31.07.2015), this Court has held as under :

"The undisputed legal position is that at the stage of framing charge, the Court is required to see only prima facie evidence available on record and it has not to consider whether the prosecution is able to prove its case against the accused persons beyond reasonable doubt. At the stage of charge only a reasonable doubt in the mind of the Court with regard to complicity of the accused persons is sufficient.

(Emphasis laid by by this Court)

The Sessions Judge has the power to discharge the accused in the following circumstances;

A-where the evidence produced is not sufficient,

B- where there is no legal ground for proceeding against the accused,

C-where the prosecution is clearly barred by limitation, or

D-where he is precluded from proceeding because of a prior judgment of High Court.

In State of Orissa v. Debendra Nath Padhi, 2005 SCC (Cri) 415, the Hon'ble Apex Court has held that at the time of framing charge, what the Trial Court is required to see and consider, are only the Police Papers referred to under Section 173, Cr.P.C. and documents sent with it. The accused cannot be permitted to produce documents to put forth his defence case for purpose of seeking discharge.

In Soma Chakravarty v. State (through CBI); 2007 (2) SCC (Cri) 514, it has been held by the Hon'ble Apex Court that at the time of framing of charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. If on the basis of material on record the Court could form an opinion that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. Whether, in fact, the accused committed the offence, can only be decided in the trial.

In Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary and others; 2009 (1) SCC (Cri) 87, it has been held by the Hon'ble Apex Court that even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge.

In Omwati v. State; AIR 2001 SC 1507, the Hon'ble Apex Court has restricted the High Court from interfering by holding that the High Court should not interfere at initial stage of framing the charges merely on hypothesis, imagination and farfetched reasons, which in law amount to interdicting the trial against the accused persons.

Hon'ble Apex Court in Om Prakash Sharma vs. C.B.I. AIR. 2000 SC 2335, has held that at the stage of 227 of the Code of Criminal Procedure, it is not open to the Sessions Judge to weigh the pros and cons whether improbability and then proceed to discharge the accused holding the said statements existing in the case diary as unreliable.

In Kanti Bhadra Shah vs. State of Bengal AIR 2000 SC 522, Hon'ble Supreme Court has held that the discharge order must contain reasons but an order of framing charge cannot be quashed merely because it does not contain reasons.

In State of J & K vs. Sudarshan Khakkar AIR 1995 SC 1954 and in Rukmani Narvekar vs. Vijaya Satardekar, AIR 2009 SC 1013, it has been held that no weight is to be attached to the probable defence of the accused and at the time of framing of the charge, the Court has to confine its attention to documents referred to unde Section 173 Cr.P.C. only.

In wake of the aforesaid legal position and considering the facts and circumstances of the present case and the prima facie evidence available on record against the revisionist, discussed in detail by the court below, the revision appears to have no force and it is liable to be dismissed."

20. In Application U/S 482 No. 20458 of 2016 - Pankaj Verma Vs. State of U.P. and Others (decided on 15.07.2016), this Court has held as under :

"4. Under S. 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and State by what evidence he proposes to prove the guilt of the accused. Thereafter, comes at the initial stage, the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either u/s. 227 or u/s. 228 of the Code. If "the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", so enjoined by s. 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which ?...................................

(b) in exclusively triable by the court, he shall frame in writing a charge against the accused," as provided in S. 228.

Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under s. 227 and 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227."

21. In the light of judgment of Hardeep Singh (supra) and above referred other decisions, the settled legal position emerges as follows :

21.1 The power under Section 319 (1) Cr.P.C. can be exercised at any time after the charge sheet is filed and before the pronouncement of judgment.

21.2 Under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence, the Court need wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

21.3 Though only a prima facie case is to be established from the evidence led before the Court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising, power under section 319 Cr.P.C. In section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

22. Adverting to the facts of this case, it appears from the perusal of record that the FIR of this case has been lodged on 16.6.2002 by the complainant/first informant Balbeer at Police Station Rajpura district Budaun, which was registered as case crime no. 111 of 2002 under sections 147,148,149,394,302 I.P.C. against 7 persons including the proposed accused Shishupal and Rajendra son of Ramji Lal.

23. After investigation, the Investigating Officer has filed charge sheet against 8 persons under section 147,148,149,302 I.P.C. No offence of robbery has been found during the investigation. The charge sheet has been filed against one Rajendra son of Hansraj. According to the complainant and witnesses, above Rajendra son of Hansraj has no concerned with the crime. The complainant has named accused Rajendra son of Ram Ji Lal, while, the Investigating Officer has found no role of named accused/proposed accused Shishupal and as such no charge sheet has been filed against him. Charge sheet is also filed against two accused Omkar and Nem Singh who were not named in the FIR.

24. The case was abated against accused Rajeshewar due to his death on 29.09.2007 and file of accused Omkar was separated on 5.2.2010 after he has jumped out the bail. At present the Trial of the case is proceeding only against remaining accused, after recording of the evidence of the prosecution witnesses, case was fixed on 23.09.2013 for recording of evidence of formal witnesses/the statement of accused person under section 313 Cr.P.C. When application for summoning of the proposed accused Rajendra son of Ram Ji Lal, Shishupal has been moved by prosecution under section 319 Cr.P.C. earlier application for the same relief moved under section 319 Cr.P.C. was rejected vide order dated 03.08.2006, on the ground that the prosecution witnesses were not cross examined.

25. While passing the order impugned the Court below has observed that evidence of witnesses is contradictory to each other and even not supported by medical evidence. The application is highly belated and moved after eight years from the date of rejection of the earlier application; Prosecution has produced all the evidence and evidence of only formal witnesses had to be produced. Trial of the case is at final stage; Application appears to be filed with the intention of causing delay; as such there is no justification to summon the proposed accused to face the trial and there is no sufficient evidence on record to summon the accused.

26. It is clear from bare perusal of Section 319 Cr.P.C. that no limitation has been prescribed for filing of application to summon additional accused under this section. Hon'ble Apex Court has also held in para 25 of Bholu Ram's case (supra) that Section 319 Cr.P.C. also does not prescribe any time limit within which such application should be filed in the Court.

27. In the aforesaid Section only stage for filing the application is provided i.e. of "enquiry into", or "trial of", an offence. Though in the order impugned at page 3 it is mentioned that case was fixed on 23.09.2013 for recording statement under Section 313 Cr.P.C. and on page 4 it is mentioned that prosecution has completed its all evidence and only recording of evidence of formal witnesses remained. As such application for summoning additional accused under Section 319 Cr.P.C., has been filed at which stage, this is disputed due to above referred two contrary reference of stage of the case in the order impugned, but if it is presumed correct that above application has been filed at the stage of recording statement of accused persons under Section 313 Cr.P.C. after long delay of more than 8 years and with intention to cause delay in disposal of the case still it will not make any difference. Because Hon'ble Apex Court in Hardeep Singh (supra) held in paragraph 43 of the judgment that as soon as the Court frames the charges, the trial commences, and therefore, the power under Section 319(1) Cr.P.C. can be exercised at any time after the charge sheet is filed and before the pronouncement of judgment, accordingly, the stage of recording statement under Section 313 Cr.P.C. is undoubtedly a course/stage of trial, which is a pre-condition for filing application under Section 319 Cr.P.C. So far as delay of 8 years in filing the application is concerned, that is also not material because as stated above, Section 319 Cr.P.C. prescribes no limitation for filing of application to summon additional accused.

27.1 Perusal of Annexure No. 3 to the affidavit filed in support of revision reveals that, complainant/first informant/PW-1 Balbeer has stated in his evidence that four years ago on 16th June, 2002, at 12.00 P.M. he, Ramveer, Jogendra, Kishanpal, Suresh, his father Siyaram and some labourers were working in Piperment/Mentha Factory, situated near Village - Jahanpur. There was 02 quintel, 13 Kg and 350 gms mentha oil filled in two canes and cash of Rs.5,000/- in the factory. Accused Lalaram S/o Dariaw, Sishupal S/o Raghuveer armed with rifle, Prem Singh S/o Mohkam Singh, Rajendra S/o Ramjimal, Harprasad S/o unknown and Rajeshwar S/o unknown armed with country made pistol (Tamancha) came there. Accused Rajendra exhorted for robbing the oil, all accused started to pick the oil, on protest accused Lalaram and Chandrakesh started firing shots, which hit his father Siyaram. All accused persons also fired from their respective fire arms. The first informant as well as other persons saved themselves by taking shield of wall. Hearing their cries, the witnesses Jagan, Ramawtar, Ramesh and other persons from the village reached there, saw the incident and challenged the accused persons on which accused fled away. The witnesses tried to chase the accused persons, but they could not be apprehended. His father died on the spot. He got the written report scribed by Tilak Singh and after hearing the same, he put his thumb impression on that and lodged the first information report by submitting the same to the Police Station. He had proved the written report as Exhibit 'ka-1'.

27.2 PW-2 Kishanpal and PW-3 Ramveer, other sons of deceased Siyaram, have also deposed the similar facts in their respective statements, which have been deposed by PW-1 Balbeer in his statement before the Court.

27.3 PW-4 Jogendra, has stated in his statement that about 11 years ago in the afternoon, they were drying fuel of mentha, Balbeer, Kishan and Ramveer were also present in the factory. There were canes of mentha oil and cash of Rs.5,000/- in the Madhaiya of mentha factory. Accused Chandrakesh, Lalaram, Shishupal, Premsingh, Rajendra and two other persons came there. They were armed with country made pistols and guns. He had run away, in the meantime all accused persons have murdered his father by firing from their respective fire arms. His father died on spot. There was indiscriminate firing. He is not aware that shot fired by which accused had hit his father. The witness recognised accused persons present in the dock of the Court. Balveer had lodged the report of incident. The Investigating Officer had quizzed him and he had told him about all details regarding the incident.

28. It is evident from the above referred evidence of prosecution that all the above prosecution witnesses have given evidence regarding complicity of proposed accused in the alleged crime with necessary details regarding their names, parentage and arms kept by them during alleged incident.

29. As the matter related to proposed accused is at the pre-trial stage, therefore, it is not desirable to enter into detailed discussion and analysis of the prosecution evidence available against the proposed accused and record finding on merits of those. At this stage it will suffice to note that evidence of above referred prosecution witnesses PW-1, PW-2, PW-3 and PW-4 stood the test of requirement of recording satisfaction to the effect that there is sufficient evidence to proceed further, against the proposed accused.

30. A close scrutiny of the order impugned reveals that it is in the nature of final acquittal order without any regular trial of the proposed accused for the henious offence of murder, which is neither permissible nor sustainable in the eyes of law and if permitted to stand, will cause failure of justice.

31. For the reasons recorded above, this revision deserves to be allowed and is allowed accordingly. Order impugned dated 27.09.2013 is set aside. Application (98ka) moved for summoning of opposite parties under Section 319 Cr.P.C. to face the trial is allowed. Lower court will take all necessary steps in this regard within two weeks from the date of filing of this order. However, it will be open to the Lower Court to decide whether proposed accused will be tried together with the original accused facing the trial or they will be tried separately as prescribed under Section 319(4) Cr.P.C.

32. It is made clear that this Court is not expressing any opinion with regard to the merits of the case and whatever observations have been made in this judgment are only for the purpose of deciding this revision.

33. No order as to costs.

Order Date :- 29.07.2016

N A/A. Verma