Indrajeet vs State Of U.P. & Another
2016 Latest Caselaw 2251 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 27
 

 
Case :- CRIMINAL REVISION No. - 1221 of 2016
 

 
Revisionist :- Indrajeet
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Satya Prakash Chaturvedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Ranjana Pandya,J.

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

2. This criminal revision under Sections 397/401 Cr.P.C. has been preferred against the impugned order dated 11.4.2016 passed by Sessions Judge, Hapur in Session Trial No. 315 of 2015 (State Vs. Sunder and others) in Case Crime No. 290 of 2013, under Section 302 I.P.C., Police Station-Babugarh, District-Hapur whereby revisionist Indrajeet has been summoned to face trial.

3. Assailing the impugned order the learned counsel for revisionist submitted that the learned Sessions Judge has wrongly allowed the application 31A under Section 319 Cr.P.C. The learned Sessions Judge has based its judgement on an inadmissible evidence, which is bad in eyes of law. The learned counsel for revisionist has further argued that the learned Judge has not considered the case in its right perspective and misread the evidence on record, hence the impugned order is liable to be set aside and the revision deserves to be allowed.

4. Further counsel for the accused revisionist has placed reliance on 2009 (66) ACC 273 (Brindaban Das and others vs. State of West Bengal) in which it has been held that "the exercise and powers under Section 319 Cr.P.C. should be exercised with great care and perspicacity."

5. Hon'ble Apex Court in 2009 (65) ACC 971 (Ram Singh and others vs. Ram Niwas and another) has laid down that "Mere existence of prima facie case not sufficient to exercise jurisdiction under Section 319 Cr.P.C. and the court must arrive at satisfaction that evidence adduced on behalf of prosecution if unrebutted would lead to conviction of the person sought to be added as accused."

6. Learned counsel for the revisionist has vehemently argued that the power conferred under Section 319 Cr.P.C. should be used very sparingly and the court must be satisfied that there was strong suspicion. An extraordinary case has to made out and sufficient and cogent reasons are required to be assigned by the court as has been laid down in 2009 (66) ACC 32 (Sarabjit Singh and another vs. State of Punjab and another).

7. Learned counsel for the revisionist has also argued that mere suspicion of involvement of the accused for the offence is not enough as has been laid down in 2000 (3) SCC 262 (Michale Machado and Anr. vs. Central Bureau of Investigation and Anr.)

8. Learned A.G.A. has opposed and has submitted that the impugned order needs no interference as per law laid down in 2009 (1) Supreme page 649 (Ram Pal Singh & Ors. vs. State of U.P. & Anr.) in which it has been held that :

"All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused." 17. The Hon'ble Apex Court has laid down that : "PW-1 in his evidence, had named applicants as persons who were involved in incident causing death of deceased and injuries to another - Despite that trial Court, on two separate occasions, rejected prayer made by Respondent No. 2 for summoning appellants under Section 319 Cr.P.C.-High Court, after considering evidence of PW-1, thought it necessary for appellants to be summoned - No error committed by High Court in directing that appellants be summoned to stand trial along with co-accused, in view of evidence of PW-1 during the trial itself."

9. Learned A.G.A. has further submitted that as per law laid down in (2009) 13 SCC 608 Supreme Today page 779 (Harbhajan Singh & Anr. vs. State of Punjab & Anr.) in which the Hon'ble Apex Court has laid down that :

"It may be true that appellants were not charge-sheeted but it is now well settled, that only because no charge-sheet had been submitted against certain persons, same by itself, would not be a sufficient ground to the court at a later stage, namely, upon consideration of the evidence adduced before it by the prosecution to decline to exercise its jurisdiction to add other persons as accused for trying him for offences which appear to it to have been committed by them."

10. Learned counsel for the revisionist has placed reliance upon 2014 (2) JIC 523 (SC) (Babubhai Bhimabhai Bokhiria & Anr. vs. State of Gujarat & Ors.) in which Hon'ble Apex Court has laid down as under:-

"Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher."

11. Section 319 Cr.P.C. reads as under:-

"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."

12. The scope of Section 319 Cr.P.C. is well defined as under:-

"Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.

It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.?

This has to be understood in the context that Section 319 Cr.P.C. empowers only the court to proceed against such person. The word "court" in our hierarchy of criminal courts has been defined under Section 6 Cr.P.C., which includes the Courts of Sessions, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Sessions is defined in Section 9 Cr.P.C. and the Courts of Judicial Magistrates has been defined under Section 11 thereof. The Courts of Metropolitan Magistrates has been defined under Section 16 Cr.P.C. The courts which can try offences committed under the Indian Penal Code, 1860 or any offence under any other law, have been specified under Section 26 Cr.P.C. read with First Schedule. The explanatory note (2) under the heading of "Classification of Offences" under the First Schedule specifies the expression 'Magistrate of first class' and 'any magistrate' to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates.

Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence."

13. Hence, I do not find any illegality, irregularity or impropriety in the judgement passed by the learned Sessions Judge, hence the revision is liable to be dismissed, accordingly, the present criminal revision is dismissed.

Order Date :- 5.5.2016

Anurag/-