Om Prakash vs State Of U.P.
2019 Latest Caselaw 4594 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 67
 

 
Case :- APPLICATION U/S 482 No. - 38033 of 2013
 

 
Applicant :- Om Prakash
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Daya Shankar Mishra,Chandrakesh Mishra
 
Counsel for Opposite Party :- Govt. Advocate,Raj Kumar
 

 
Hon'ble Rahul Chaturvedi,J.

1. Heard Sri Daya Shankar Mishra, learned counsel for the applicant assisted by Sri Chandrakesh Mishra, Sri Raj Kumar, learned counsel for the private opposite party and learned AGA at length.

2. The order impugned dated 24.08.2013 passed by learned Additional Session Judge, Court No. 2, Mau under section 319 Cr.P.C. in Session Trial No. 196 of 2010 (State v. Sanny and others), under sections 363, 366, 376, 373. 373 IPC and 3, 4, 5, 6 and 7 ITP Act, P.S. Mau, District Mau is the core issue of the instant proceedings and it has been canvassed by learned counsel for the applicants that the same may be set aside.

3. On 09.04.2019 after hearing rival submissions of learned counsel, this Court was of the opinion that the instant application filed under section 482 Cr.P.C., deserves to be allowed and accordingly the application was allowed with a direction that the detailed reasons would follow shortly.

4. After efficaciously perusing the record, facts and circumstances of the case, submissions of the rival learned counsel for the contesting parties, the detailed reasons are mentioned herein below:

5. By means of the instant application filed under section 482 Cr.P.C., the applicant is assailing the veracity and validity of order dated 24.08.2013 passed by Additional Session Judge, Court No. 2, Mau passed in S.T. No. 196 of 2010 (State v. Sanny and another), under sections 363, 366, 376, 373, 372 IPC and 3,4,5,6 and 7 of the ITP Act (herein referred to "ITP Act"), P.S. Mau, District Mau whereby the applicant- Om Prakash S/o Lalchandra (non accused) and one Nisha D/o D/o Pratap Dhobi has been summoned by the trial court in exercise of power envisaged under section 319 Cr.P.C. to face the trial. Since the instant proceedings under section 482 Cr.P.C. is preferred by the applicant- Om Prakash, thus, the judgement confines to him only.

6. Before adjudicating the case it would be imperative to spell out the objectives and aims to understand section 319 Cr.P.C., which has also been vividly elaborated in catena of judgements passed by Hon'ble the Apex Court time and again. For ready reference, this Court feels it appropriate to peruse the provisions contained in section 319 Cr.P.C., for fair adjudication of the case on merits. The provisions of section 319 Cr.P.C., was enacted and incorporated to achieve the objective that, the real culprit should not get away unpunished. By virtue of these provisions, the Court is empowered to proceed against any person not shown as an accused, if it appears from evidence that a non accused person was also an active participant of that particular offence, then the courts are not powerless to summon that person and try together with other co-accused person. Courts are the sole repository of doing justice so that the rule of law should be upheld and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system, where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The legislation has empowered the courts by this additional power through the provisions of the aforesaid sections to fulfill the latin doctrine "litigantes ab cœtibus summa debet non putat de manu mali legem" (unscrupulous litigants should not get away from the clutches of law).

7. Keeping in view the controversy involved in the instant case in the light of above doctrine behind section 319 Cr.P.C., it would be pertinent to mention that, responding to the application under section 319 Cr.P.C. by the informant Basanti Devi (opposite party no. 2) the applicant Jani alias Om Prakash S/o Lalchand R/o Mohall Shivdaspur (Red Light are, P.S. Maduadeeh, District Varanasi and Nisha D/o Pratap Dhobi R/o Mohalla Munshipura, P.S. Kotwali, District Mau were summoned to face trial along with other co-accused persons vide order impugned dated 24.08.2013 under the aforesaid sections of the ITP Act.

8. Before proceeding further it would be pertinent to appreciate the admissions made by contesting parties which are as follows:

9. Opposite party no. 2 -Basanti Devi w/o Achchey Lal is said to have lodged the FIR through application under section 156(3) Cr.P.C., mentioning that for the incident of 03.09.2006 in the evening hours i.e. around 18.00 hours and the FIR of the same was got registered on 04.11.2006 at about 17.45 hours wherein she disclosed the names of accused persons (I) Prakash Rajbhar S/o Jawahir Rajbhar (ii) Ajay S/o Ashok (iii) Nisha D/o unknown with the allegation of elopement of her daughter by the aforesaid named accused persons in the aforesaid offence. There is no reference of the name of the applicant.

(a) By bare reading of the FIR it is culled out that the entire thrust is made therein that at the said date and time, Lakshmi, 14 years minor daughter of the informant, was enticed away by co-accused Prakash Rajbhar to some unknown destination in front of the open eyes of the informant, herself and her elder daughter Baby and at that time. Astonishingly, they did not raise any resistance or objection. Even after considerable lapse of time the alleged victim girl could not be traced out, thereafter a search for her recovery started rolling and during this process they came across the informaton that this act of enticement was made by none other but her close associate Nisha and to this effect they filed an application of endorsement to Superintendent of Police on 08.09.2006 which went in vain.

(b) The alleged victim was eventually recovered on 29.04.2009 and her statement under section 164 Cr.P.C. was recorded. On 09.03.2010, thereafter, her statement was recorded under section 161 Cr.P.C. In her statement recorded under section 164 Cr.P.C. the alleged victim girl claimed that she is aged about 28 years. In her statements recorded in both the aforesaid sections, which are annexed as annexures 3 and 3-A along with the affidavit, she attributed the role of enticement to accused persons Ajay and Prakash and alleged that the aforesaid two offenders had outraged her modesty and have not only shown porn videos but also shot her obscene videos and thereafter she was taken to a distant brother-in-law (Jeeja) of the aforesaid Ajay, with whom she was not acquainted to. She further submits therein that the accused persons Ajay, Prakash, one Sanny and alleged Jeeja of Ajay took her in a Maruti Car to one Afzal Begum and sold in her hands at Maduadeeh. She stated that Sanny, Ajay and his aforesaid jeeja also ravished her modesty time and again and she was forced in human trafficking market. In her statement recorded under section 161 Cr.P.C., she made a insignificant deviation viz-a-viz; above statements recorded under section 164 Cr.P.C., wherein she added that in the human trafficking market she gave birth to a baby girl (who resembles with accused Ajay). In her statement recorded under section 164 Cr.P.C. She also added that all the aforesaid persons manhandled and sexually humiliated her besides ravishing her modesty. The manhandling and sexually humiliation suffered by all the four hooligans were missing in the statement recorded under section 161 Cr.P.C. It is an astonishing feature, after perusing both the statements of the alleged victim girl, that there is not even whisper of the present applicant Om Prakash nor he is named in the text of the FIR anywhere, therefore, there is no question of attributing any role to the present applicant in the heinous offence.

(c) After collection the material evidence on record and analyzing the same, the police on 06.06.2010 and 08.02.2012 submitted two charge sheets i.e., one bearing number 120-A of 2007 and the other bearing no. 120-B of 2007 respectively. The earlier charge sheet was submitted against Sanny @ Dinesh Rajbhar, Rakesh Rajbhar, both sons of Jawahar and Ajays/o Ashok Ram under the aforesaid sections and in charge sheet number 120-B, Afzal Begum w/o Late Rehmat Ali was made accused but the fact remains that in both the charge sheets nowhere the present applicant has been made an accused.

10. Learned counsel for the applicant has drawn attention of the Court towards annexure 5-A sworn by none other but by the victim Laxmi Devi herself dated 03.02.2012 wherein she has taken "U" turn from her earlier stand by candidly mentioning that under the pressure exerted by the police she had taken the names of Afzal Begum, Sanny @ Dinesh Rajbhar, Rakesh Rajbhar Ajay and aforesaid jeeja of Ajay etc., and she completely denied that she was ever subjected to any sexual assault upon her by them. She also denied the factum of shoot of any obscene video of her by any of them. Relying upon the aforesaid affidavit of the alleged victim herself, the police on 13.03.2012 after recording her "Majeed Bayan" dropped the names of Ajay ka Jeeja and Janu alias Om Prakash and submitted charge sheet mentioning therein that since the victim herself does not want to proceed against the applicant, therefore, the Investigation Officer, after dropping the names of the Ajay ka Jeeja and Janu alias Om Prakash has closed the chapter of investigation.

11. In the counter affidavit too, though there was no denial to the aforesaid fact but it has been emphatically mentioned therein that the nick name of the present applicant Om Prakash, who is referred as Jani and not Janu. In paragraphs 13 of the counter affidavit it has been mentioned that annexure 5-A of the alleged victim is forged as she was compelled to sign over this affidavit.

12. Learned counsel for private opposite party submitted that the alleged victim had filed yet another affidavit on 03.02.2012 and denied the contents of her earlier affidavit.

13. But the fact remains that there is no charge sheet against the present applicant- Om Prakash. Since, the offences are exclusively triable by the court of Sessions and after committal of the case, charges were framed against the named accused persons by the learned Additional Session Judge and trial of the case started rolling.

14. Learned counsel for the applicant drew attention of the Court towards the testimony of P.W.-1- Basanti Devi as well as the alleged victim P.W.-2 Laxmi Devi (annexed as annexures 6 and 6 Ka) of the petition. In the testimony of P.W.- 1 Basanti Devi disclosed that in the year 2008 the victim came to her house, carrying a baby girl aged about half a month in her lap, who died thereafter. On her query to the victim, she disclosed that Ajay and Prakash after making her unconscious took her away in a car to some unknown destination and further answered to her queries that Ajay, Prakash, Sanny and Jani alias Om Prakash raped upon her and shot "dirty" pictures of her, thereafter she was sold to Afzal Begum from where she was thrown to the flesh peddler market. However, The victim, P.W.-2 Laxmi Devi D/o Achchey Lal in her examination-in-chief recorded on 15.01.2013 revealed as under:

Þfu'kk dks eSa igys ls tkurh gwaA esjs ?kj vkrh&tkrh FkhA esjh lgsyh FkhA eq>s nqdku ij ysdj tk jgh Fkh jkLrs esa vt;] izdk'k] luh vkSj tkuh uke ds vkneh feysA eSa muesa ls vt;] izdk'k vkSj luh dks tkurh FkhA os yksx esjs ?kj ds cxy esa jgrs FksA mijksDr pkjks O;fDr eq>s nokbZ lqa?kkdj xkM+h esa ysdj pys x;sA xkM+h esa fu'kk Hkh lkFk esa FkhA mijksDr yksx eq>s eMqokMhg cukjl esa ,d vkneh ftldk uke tkuh gS ds ?kj esa j[ksA bu yksxksa us ogk ij esjs lkFk xUnk&xUnk dke fd;kA xUnk&xUnk dke djus okyksa esa ls vt;] izdk'k] luh vkSj tkuh FksA tkuh dk dksbZ vkSj uke ugha gSA dsoy tkuh uke gSA tkuh dks eS igys ls ugh tkurh FkhA tc ysdj x, rc tkukA cqjs dke ls eryc xUnk&xUnk dke djuk gksrk gSA eq>ls jaMh is'kk djokrs FksA vt;] izdk'k] luh vkSj tkuh us esjh ohfM;ksa fQYe cuk;hA vt;] izdk'k] luh vkSj tkuh us viuk diM+k fudky fn;k Fkk vkSj esjk diMk Hkh QkM+ fn;k Fkk blds ckn esjs 'kjhj ij cqjk dke fd;kA ml le; fu'kk esjs ikl FkhA tks Cyw fQYe esjh cuh Fkh og eSus ns[kh FkhA Cyw fQYe fn[kkdj vt;] izdk'k] luh vkSj tkuh us eq>s /kedk;k Fkk fd vxj rqe Hkkxh rks ekj MkysxsAß

15. From a keen analysis of the aforesaid statement of the victim, it is borne out that the victim herself was candidly stating that besides the named persons in the FIR, there was an additional person named as "Jani" and the named persons have kept her at his residence. She further submits therein that there is no nick name or sir-name of Jani and she was not acquainted with Jani. It is strange that during the statement, the parentage of Jani was clandestined to ascertain the identity of this person.

16. Per contra, Sri Raj Kumar, learned counsel for private opposite party, while referring to his counter affidavit, submitted that as per class VI of the victim, the date of birth of the victim is 01.07.1991, therefore, on the date of incident, she was a minor. Though in her ossification test, age of the victim was computed as around 18+. There is a specific mention in the counter affidavit at paragraph 9 that Jani is the sirname of Om Prakash (applicant) and he is one and the same person, to whom the victim has referred in her testimony. Not only this, paragraph 10 of the counter affidavit also, while reiterating the same version of paragraph 9, it has been mentioned that there is no other name of Jani nor there is any other material in support of this proposition of Jani. This sirname of Om Prakash has been assailed by opposite party no. 2 from the examination-in-chief of the victim wherein it has been made crystal clear that the victim the soul, mind and body were immensely tortured,harassed and crushed by various persons but millions dollar question is yet to be answered as to who this Jani was? In her statement she candidly stated that there is no other nick name of Jani. She does not know the parentage of this Jani nor she was acquainted with this person during her life-time. Nor there was any test identification parade so that she may identify/ascertain the real culprit, who ravished her.

17. In the light of the aforesaid factual background the validity and veracity of the order impugned is to be adjudicated.

18. This Court has keenly gone through the entire impugned order dated 24.08.2013 passed by the Additional Session Judge verbatimly.

19. In paragraph 2 of the aforesaid order seems to have misquoted the testimony of P.W.-2 by mentioning therein that she had disclosed the name of Jani alias Om Prakash s/o Om Prakash and Nisha d/o Pratap Dhobi as co-accused persons, which is an apparent case of misquoting the testimony of P.W.-2. P.W. -1 in her testimony narrated the sad saga of her daughter, mouthed by the victim herself. There is an apparent contrast between both the testimonies with regard to the identity of Jani and Om Prakash and whether they are one and the same person or of two different identities. Till the time this puzzle is resolved satisfactorily it would at higher risk to exercise power envisaged under the jurisdiction of section 319 Cr.P.C. by the court concerned. It is in the last but one paragraphs of the impugned judgement that without any material on record, the learned Additional Session Judge had his own wisdom mixed by interpreting as to this person Jani alias Om Prakash is one and the same person, which is factually incorrect proposition and not permissible under law.. In the examination-in-chief the victim girl has refuted that there is no other nick name of Jani which can be interpreted thereafter to be aliasing as Om Prakash but the learned Additional Session Judge has tried to raise castle over this defective premises.

20. Fact remains that the applicant is neither named in the FIR nor has been charge sheeted by the police and there is not even iota of his name in the entire case diary as to the fact that Jani and Om Prakash are one and same person. There is deep rooted identity crisis of this person concerned and on the basis of flimsy and blurred factual premises an innocent person (till date) cannot be dragged to face criminal prosecution for the aforesaid offence, which would axe the very objective of the provisions of Section 319 Cr.P.C.

21. In order to buttress his contention, learned counsel for the applicant has drawn attention of this Court towards paragraphs 95, 105 and 106 of the judgement of the Hon'ble Apex Court wherein it has followed the proposition annunciation in other cases while adjudicating the case of Hardeep Singh Vs. State of Punjab & Others, [(2014) 3 SCC 92], which are extracted herein below:

"....95. In Suresh v. State of Maharashtra, AIR 2001 SC 1375, this Court after taking note of the earlier judgments in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, AIR 1990 SC 1962 and State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 SC 2041, held as under:

"9......at the stage of Sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

............

105. In Sohan Lal & Ors. v. State of Rajasthan, (1990) 4 SCC 580, a two-Judge Bench of this Court held that once an accused has been discharged, the procedure for enquiry envisaged under Section 398 Cr.P.C. cannot be circumvented by prescribing to procedure under Section 319 Cr.P.C.

........

106. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., AIR 1983 SC 67, this Court held that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them under Section 319 Cr.P.C. and try them along with the other accused."

22. The aforesaid paragraphs are with regard to the degree of satisfaction at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for summoning him under section 319 Cr.P.C.

23. In another case of Sugreev Kumar vs The State Of Punjab [Criminal Appeal No. 509 OF 2019 Arising Out of SLP (Crl.) No. 9687 of 2018) decided on 15 March, 2019, Hon'ble the Apex Court has casted embargo that section 319 Cr.P.C. is an extra-ordinary provision which would be invoked only on the basis of available material on record. It is being, a discretionary and an extraordinary power, which has to be exercised sparingly and diligently and only in the circumstance where strong and cogent evidence is on record. The prima facie opinion, which is to be found for exercise of power requires much stronger evidence than mere probability of complicity of a person. The test to be applied is the one which more prima facie case, as examined at the time of framing of charge but not of satisfaction to the extent that the evidence, if goes uncontroverted would lead conviction of the accused.

24. By applying this yardstick in the present case, where identity of a person is doubtful and there is no confidence generating material on record that Jani and Om Prakash are one and the same person or two different individuals and in the opinion of this Court, it is highly risky to ask a person, whose identity is at stake, to face trial along with other co-accused persons. During the entire investigation, a person like Om Prakash s/o Lalchand, nowhere came into the light frame and thus cannot be said to be involved, by any means, in the instant case. No identity parade was conducted to ascertain the identities of the accused persons and identify the real culprit/s. The victim, herself, has stated in her statement recorded at the relevant stages of trial that there is no other nick name of Jani, then the blanks cannot be filled without any confidence generating material.

25. Their is yet another aspect of the issue underlining the facts, that the victim girl herself admits that she was thrown into the flesh market for almost one and a half year. She remained in a burrow of a badger during those disgusting days, where her body, mind and soul was debilitated rather shattered into pieces, emotions and feelings were crushed and the poor girl ought to have acted like a chicken with its head cut-off, thus, presumably it was her state of mind where she could not utter a single word in certainty that it was the applicant- Om Prakash, who exploited her to the hilt by committing the nasty act with her. Therefore, under the aforesaid peculiar circumstances of the case, it would not be safe to use this extra-ordinary power for summoning the applicant.

26. Recently, yet in another judgement of Hon'ble the Apex Court delivered in the case of Periyasami and Ors. Vs. S. Nallasamy [Criminal Appeal No. 456 of 2019 arising out of S.L.P (Crl.) No. 208 of 2019 passed on March 14, 2019] wherein relevant paragraph 15 of the aforesaid judgement is extracted herein below:

"15. The High Court has set aside the order passed by the learned Magistrate only on the basis of the statements of some of the witnesses examined by the Complainant. Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the Complainant is a husband and has initiated criminal proceedings against family of his in-laws and when their names or other identity were not disclosed at the first opportunity."

27. Perusal of the aforesaid paragraph categorically clears the dust on the mirror by mentioning that mere disclosing name of any person cannot be construed to be strong, cogent evidence to make them to stand trial for the offence under section 319 Cr.P.C., to summon any non-accused person.

28. It is mind boggling that girl is being enticed away right in front of her mother and sister by some unknown person and there was no resistance or objection, what-so-ever by her sibling i.e. mother or her own sister on the fateful day and that too after considerable delay, the mother of the victim moved an application under section 156 (3) Cr.P.C. for lodging an FIR against three persons (wherein the present applicant was not named/referred). In both the statements recorded under sections 161 and 164 Cr.P.C., the victim girl has not even whispered the name of the applicant-Om Prakash whereas she referred the name of one Jani categorically specifying that there is no nick name of Jani, which compelled the Investigating Agency to drop the name of applicant-Om Prakash and closing the entire investigation. In the aforesaid circumstance, it was binding duty of the learned trial Judge to establish the identity of a person/accused as to whether the present applicant Om Prakash and Jani areone and same before exercising his extra-ordinary powers under section 319 Cr.P.C. at least peruse the case diary carefully while exercising his extra-ordinary power under section 319 Cr.P.C., which falls within the definition of evidence as in the case of Brijendra Singh & Ors vs State Of Rajasthan (2017) 7 SCC 706]. Relevant portion of the aforesaid case is extracted herein below:

".....Thus, the ''evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ''much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time). What is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material...."

29. Thus the trial Judge was duty bound to follow the aforesaid principles of law enunciated in the case of Brijendra Singh (Supra) and he ought to have taken into account the evidence collected by the Investigating Officer of the case during investigation while exercising and deciding the application under section 319 Cr.P.C. in the instant case.

29. It appears that the learned Additional Session Judge has solely and blindly followed the testimonies of P.Ws.-1 and 2 only over ruling all other materials collected by the Investigating Officer, which has lead him to a wrong conclusion in passing the order impugned.

30. Besides this, the trial Judge ought to have recorded his only satisfaction as to the sufficiency of material on record while exercising his extra-ordinary power in summoning a non-accused person- Om Prakash (the applicant) to face trial with other accused persons. Thus, after carefully perusing the impugned order dated 24.08.2013 and comparing the same with the ratio laid down in the cases of (i) Hardeep Singh (Supra) (ii) Sugreev Kumar (Supra) (iii) Periyasami and Ors. (Supra) (iv) Brijendra Singh (Supra) and (v) Labhuji Amratji Thakor & Ors. Vs. State of Gujarat & ANR decided 13.11,2018 in Criminal Appeal No.1349 of 2018 arising out of SLP (CRL.) No.6392 /2018, I have no hesitation to hold that the order-in-question is well short of the level of satisfaction required for invoking the powers under section 319 Cr.P.C.

31. Normally under such circumstances, the matter may be remanded for a fresh look into the matter in the light of the aforesaid ration laid down by the Apex Court but at this juncture when in his rejoinder affidavit, learned counsel for the applicant has annexed RA-1 to the petition, which is copy of the judgement and order dated 30.07.2016 passed in S.T. Nos. 196 of 2019 (State of U.P. v. Sanny alias Dinesh Rajbhar) and 88 of 2012 (State of U.P. v. Afzal Begum) passed by the Additional Session Judge/FTC No. 1, Mau respectively, wherein the accused persons Sanny alias Dinesh Rajbhar and Afzal Begum were acquitted for the offence under sections under sections 363, 366, 376, 373, 108/376, 372, 373 IPC and 3, 4, 5, 6 and 7 ITP Act on the basis of benefit of doubt whereas the judgement with regard to rest of the accused persons has already been delivered, acquitting them from all the charges in which they have been charged for, thus, it would be an exercise in futility or only for academic interest without any tangible result.

32. In support of the aforesaid annexure of the rejoinder affidavit, learned counsel for the applicant has drawn attention of this Court towards the issue of power to proceed against other persons appearing to be guilty appearing to be quilty of offence by quoting section 319 Cr.P.C. itself. For ready reference, it would be beneficial to go through it once again and the same runs as follows:

"Section 319 in The Code Of Criminal Procedure, 1973

319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

33. Learned counsel for the applicant laid his emphasis that since the aforesaid Session Trials have ended in acquittal of accused persons Sanny alias Dinesh Rajbhar and Afzal Begum and the present applicant applicant has been summoned under section 319 Cr.P.C. and the provision of this section can only be exercised during pendency of the trial, as the trial has already been concluded in the matter, therefore, the order impugned becomes functus officio. Thus the order impugned itself does not sustain and is liable to be rectified. To buttress his submission, learned counsel for the applicant has relied upon the judgement and order dated 08.03.2011 passed in Criminal Revision No. 1440 of 2011 (Ajay v. State of U.P.) by coordinate Bench of this Court wherein aggrieved by summoning order dated 11.02.2011 passed under section 319 Cr.P.C., by the court below, the revisionist had knocked door of this Court by submitting therein that power under Section 319 Cr.P.C, as the enacted statute ordains, can be exercised only during pendency of the trial. If the trial is concluded, no power under the aforesaid section can be wielded/utilized by the trial Judge. He submits that after the date when judgment was delivered, the court became functus officio and, therefore, the court could not have fixed a future date to exercise power under Section 319 Cr.P.C. The conclusion drawn by the aforesaid coordinate court is as follows:

"I have perused the impugned judgement and order. While judgmenting S.S.T. No.374 of 2008 State Vs. Navneet and others for the aforementioned offences, the trial Judge convicted all the accused persons for charges under Sections 294, 147, 148, 452, 323/149, 324/149, 504 I.P.C. and 3 (1) (X) SC/ST Act. While sentencing the aforesaid accused persons for the aforesaid offences, the trial Judge directed that record in respect of the revisionist Ajay be separated and for issuing process, 21.2.2011 was fixed. This order was passed on 11.2.2011. As the record reveals that on 11.2.2011, the trial Judge judgmented the aforesaid Special Session Trial, therefore, after judgmenting the case, the trial Judge became functus officio. He could not have taken any proceedings in respect of other person wielding power under section 319 Cr.P.C, which could have been utilized only during commencement of the trial. After conclusion of the case, no court can utilize power under Section 319 Cr.P.C. and start afresh trial in respect of separate accused.

Phraseology of Section 319 Cr.P.C. further indicates that power under Section 319 Cr.P.C. can be utilized to add any person as an accused who is not already facing trial, only during pendency of the inquiry or trial. That section further ordains that in the event the trial Judge harbingers intention to add any accused, he should have stayed the trial and take up trial in respect of newly added accused simultaneously including examination of the witnesses afresh."

34. Here it would be pertinent to peruse the principles of law enunciated by the Apex Court in the case of Ramdhan Mali and another v. State of Rajasthan and another delivered on 10.01.2014 in Criminal Appeal No. 1750 OF 2008 along with other petitions, which re-emphasises the provisions of section 319 Cr.P.C. Relevant portion of the aforesaid judgement and order are extracted herein below:

"37. Even the word "course" occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the entire wide range of the process of the pre-trial and the trial stage. The word "course" therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry upto the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word "course" ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time; duration and not a fixed point of time."

38. In a somewhat similar manner, it has been attributed to word "course" the meaning of being a gradual and continuous flow advanced by journey or passage from one place to another with reference to period of time when the movement is in progress. "

35. Comparing the facts and situations of the instant case with the aforementioned authorities, it is apparent that instant application filed under section 482 Cr.P.C. was filed in the year 2013 and coordinate Bench of this Court vide order dated 28.03.2013 kept in abeyance the proceedings of the case and during this period, the judgement of S.T. No. 196 of 2010 (State v. Sanny and another), under sections 363, 366, 376, 373, 372 IPC and 3,4,5,6 and 7 of the ITP Act, P.S. Mau, District Mau by Additional Session Judge, Court No. 2, Mau was pronounced vide order dated 30.07.2017 in favour of the accused persons by acquitting them, therefore, after pronouncement of the judgement in the case the aforesaid S.T. No. 196 of 2010 became functus officio and could not be reopened afresh as contemplated under section 319 (4) Cr.P.C., as referred to above.

36. Therefore, there is a practical embargo because now S.T. No. 196 of 2010 (State v. Sanny and another) is not itself existing and the entire exercise being conducted under section 319 Cr.P.C. by the learned trial Judge would yield no result rather it would be a sore in the eyes of law.

37. Thus, assessing over all fact and circumstances of the case and comparing the guidelines laid down by the Apex Court in the cases of Hardeep Singh (Supra), Sugreev Kumar (Supra), Periyasami and Ors. (Supra) and Brijendra Singh (Supra), this Court has got no hesitation in quashing the order dated dated 24.08.2013 passed by Additional Session Judge, Court No. 2, Mau passed in S.T. No. 196 of 2010 (State v. Sanny and another), under sections 363, 366, 376, 373, 372 IPC and 3,4,5,6 and 7 of the ITP Act, P.S. Mau, District Mau.

38. The present application filed under section 482 Cr.P.C. is, accordingly, allowed.

16.05.2019

shailesh