Paras Jain vs State Of U.P. And Another
2022 Latest Caselaw 21904 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on: 23.08.2022
 
Judgment delivered on: 20.12.2022
 
Court No. - 25
 

 
Case :- CRIMINAL APPEAL No. - 3002 of 2022
 

 
Appellant :- Paras Jain
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Vivek Kumar Singh,Raunak Tiwari
 
Counsel for Respondent :- G.A.,Sundeep Shukla
 

 
Hon'ble Mohd. Aslam,J.

1. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Vivek Kumar Singh, learned counsel for the appellant, Shi S.N. Mishra, learned A.G.A. for the State of UP-opposite party No.1 as well as Sri Sandeep Shukla, learned counsel for the informant and perused the record.

2. The instant criminal appeal is preferred against the impugned order dated 27.01.2022/22.02.2022 passed by learned Special Judge (SC/ST Act), Muzaffar Nagar in Sessions Trial No. 935 of 2017 (State vs. Raju Balmiki and Others), arising out of Case Crime No. 506 of 2017, under Sections 302, 120-B I.P.C. and Section 3(2)(5) of SC/ST Act, Police Station- Khatauli, District- Muzaffar Nagar, by which the Application 55-Kha moved by the informant under Section 319 Cr.P.C. was allowed and the appellant was summoned under Sections 302, 120-B I.P.C. and Section 3(2)(V) of SC/ST Act to face trial along with other co-accused against whom trial is going on.

3. The informant Rana Pratap (PW-1) moved an application 55-Kha under Section 319 Cr.P.C. for summoning the accused-appellant Paras Jain to face trial for offence punishable under Sections 302 read with Section 120-B I.P.C. and Section 3(2)(V) of SC/ST Act together with accused Raju Balmiki, Gaurav @ Gora, Danish and Vipul @ Khuni already facing trial on the ground that the first information report was lodged against accused Raju Balmiki, Gaurav @ Gora, Paras Jain (appellant) and two unknown persons. During investigation, involvement of accused Danish and Vipul @ Khuni was also found and after investigation charge-sheet in Case Crime No. 506 of 2017, under Sections 302, 120-B I.P.C. and Section 3(2)(V) SC/ST Act, Police Station- Khatauli, District- Muzaffar Nagar was filed against accused Raju Balmiki, Gaurav @ Gora, Danish and Vipul @ Khuni on which cognizance was taken by the Magistrate and the case was committed to the court of sessions for trial which was registered as Sessions Trial No. 935 of 2017 (State vs. Raju Balmiki and Others), under Sections 302, 120-B I.P.C. and Section 3(2)(V) SC/ST Act. The police has not charge-sheeted the accused-appellant Paras Jain in spite of the fact that the informant in his statements under Section 161 and 164 Cr.P.C. stated that accused-appellant Paras Jain was also involved in the murder of his brother. It is further alleged that informant Rana Pratap (PW-1), Babulal (PW-2) and Sudheer Kumar Goel (PW-4) in their statement before the court have deposed that accused-appellant Paras Jain was also involved in the murder of the deceased apart from the charge-sheeted accused persons, namely, Raju Balmiki, Gaurav @ Gora, Danish and Vipul @ Khuni. It is further alleged that accused-appellant Paras Jain was also conspired with other charge-sheeted accused persons in the murder of the deceased.

4. In brief, prosecution case is that informant Rana Pratap lodged the first information report at Police Station Khatauli, District Muzaffar Nagar on the basis of written Tehrir (Ext-Ka-1) on 05.04.2017 at 8:30 a.m. registered as Case Crime No.0506 of 2017, under Sections 302 and 120-B I.P.C. alleging therein that on 05.04.2017 at about 7:30 hrs. in the morning his brother Rajkumar @ Raja Balmiki was at the shop. Meanwhile, his father came from house and when he reached near the shop of Babu Lal, he heard sound of 3-4 round of fire. When his father reached at the shop of Rajkumar alias Raja Balmiki, accused Raju Balmiki resident of his locality along with two unknown persons came out from his shop waving arms in their hand and fled by motorcycle which was standing outside the shop. His brother died on the spot. Raju's brother Gaurav @ Gora and Paras Jain son of Sanjay Kumar Jain, Chairman, Nagar Palika Parisad, Khatauli who were having enmity with his father and brother had hatched conspiracy and got murdered his brother because Gaurav @ Gora who is detained in district jail under National Security Act had suspected that his brother Raja had given information against him on which action was taken against Gaurav @ Gora. His father Babu Lal had given evidence against accused Paras Jain in the election petition on this count Paras Jain was having enmity with him. Both the accused Paras Jain and Gaurav @ Gora hatched conspiracy to murder his brother while accused Gaurav @ Gora was in jail and they were extending threat to commit murder of his brother and father.

5. The case was investigated by the Circle Officer and the accused Raju Balmiki was taken into police custody on whose pointing out the weapon used in the commission of crime was recovered. During investigation, it was found that accused Danish and Vipul @ Khuni were also involved in the incident and there is sufficient evidence against accused Gaurav @ Gora regarding conspiracy to commit murder of the deceased Rajkumar, brother of the informant, on the basis of statement of witnesses and site-plan. In the statement of other witnesses, the involvement of Paras Jain and Jeetu was not found and the charge-sheet was filed under Sections 302, 120-B I.P.C. and Section 3(2)(V) SC/ST Act against accused Raju Balmiki, Danish, Gaurav @ Gora and Vipul @ Khuni, whereas the accused Paras Jain and Jeetu were not charge-sheeted. The charges were framed against the accused persons and learned lower court has recorded the statement of informant Rana Pratap as PW-1, Babu Lal as PW-2 and Sudheer Kumar Goel as PW-4. Learned lower court has also recorded the statement of Dr. Babu Ram as PW-3, who proved the post-mortem report.

6. Learned lower court having heard the arguments of learned counsels of the parties and having perused the file held that the accused-appellant Paras Jain is named in the first information report and the informant in his statement under Section 161 Cr.P.C. and 164 Cr.P.C. has also named the accused-appellant Paras Jain as conspirator. It was further held that informant Rana Pratap in his statement before the court as PW1 has proved the first information report (Ext-Ka-1) wherein it was stated that his father had seen the incident and had also seen the accused Raju Balmiki along with two unknown persons, who had participated in the commission of crime. It was further deposed that there was enmity between his brother and accused Gaurav @ Gora, who was detained in jail under National Security Act who had suspicion that he was sent to jail under National Security Act on the tip of deceased Rajkumar. He further deposed that the conspiracy to murder his brother was hatched by accused Gaurav @ Gora and Paras Jain who got the deceased murdered by the accused Raju Balmiki, brother of Gaurav @ Gora and two other persons. Accused Gaurav @ Gora and Paras Jain had also given threat for life to his brother and father. Learned court below also considered the deposition of the PW-2 Babu Lal, father of the deceased, who stated before the court that when he reached near the shop he saw that two men were firing at his son Rajkumar @ Raja Balmiki and one person armed with weapon was standing at the gate. He recognized the accused Raju Balmiki as he was a resident of his locality who was firing at his son, but he could not recognize other two persons at that time. On 10.10.2018 in his examination-in-chief, he stated that the accused fled from the place of occurrence on motorcycle. He further stated that Paras Jain, Chairman of Nagar Palika Parisad, Khatauli was also involved in the murder of his son. Gaurav @ Gora, who is detained in jail in National Security Act, had suspicion on his son deceased Rajkumar @ Raja Balmiki that he was involved in roping him in National Security Act. Many times his son Rajkumar was threatened by Raju Balmiki and Gaurav @ Gora for life. Paras Jain was enmity with him. The basis of the enmity was that after retirement of Babu Lal, the payment of Rs.2,40,000/- was due regarding which Paras Jain called him at his house and directed executive officer to pay the aforesaid amount. At that time Paras Jain gave him a form of death to sign on it to which he refused, thereupon, uncle of Paras Jain took out pistol and put on his temporal and due to panic he himself wrote a report that Rana Pratap will not do job in the Nagar Palika. He reported the matter to police, but no action was taken. It is also deposed that as a result of that Paras Jain transferred his son from the post of Safai Nayak and posted him as garbage lifter in the area in front of his house and also stopped salary of his son of about ten months. The reason for anonymity was also that there was a election petition going on between Paras Jain and Izhaar in which he had given evidence in favour of Izhaar. While he was returning after giving evidence in election petition, Paras Jain, his father and uncle had threatened him to murder his son regarding which he had made a complaint at police station, but no action was taken. Paras Jain was also present at the place of occurrence and when he was crying near the dead body of his son, Paras Jain had told him that it had to happen and he was apprehended by the police but was not sent to jail and Paras Jain had also pressurized him for compromise in the matter. Learned lower court has also dealt the statement of Sudheer Kumar Goel (PW-4), who is the scriber of Tehrir (Exhibit-Ka-1) who deposed that in the month of October, 2016 he was detained in Muzaffar Nagar jail in a case. He was sent to barrack no.2 where one Meenu Tyagi was detained. Later on, he was released on bail and he had visited to Meenu Tyagi for 2-3 times at jail. In the month of March, 2017, while he was returning after visiting Meenu Tyagi in jail, Gaurav @ Gora stopped him and told that his liquor business has been ruined by Rajkumar @ Raja Balmiki. Gaurav @ Gora had also told him that arrangement has been made to get Rajkumar @ Raja Balmiki killed by two shooters and Paras Jain will bear all the expenses. The learned lower court after analyzing the statement of the witnesses and relevant case law found that prima facie case is made out against accused Paras Jain that he is also conspired with the charge-sheeted accused in the murder of brother of the informant for arranging money for the commission of crime. Paras Jain was also named in the first information report and in the statement recorded under Section 161 and 164 Cr.P.C. and it was found that there is sufficient evidence against the proposed accused Paras Jain that he was involved in the conspiracy of the murder of the brother of the informant, and accordingly, learned lower court allowed the application 55-Kha under Section 319 Cr.P.C. moved by the informant and summoned the accused Paras Jain for offence punishable under Sections 302, 120-B I.P.C. and 3(2)(V) SC/ST Act vide impugned order dated 27.01.2022 to face trial together with the charge-sheeted accused. Feeling aggrieved by it, accused-appellant has preferred this appeal under Section 14-A SC/ST Act for setting aside the impugned order dated 27.01.2022 passed by learned Special Judge SC/ST Act.

7. It is submitted by learned counsel for the appellant that learned trial court, without assigning any reason or without recording any finding that prima facie case for summoning the appellant is made out, summoned the appellant and illegally allowed the application moved by respondent no.2 under Section 319 Cr.P.C. It is further submitted that the appellant and respondent no.2 are resident of the same place and on account of personal grudge the application under Section 319 Cr.P.C. was moved. As the appellant was the then Chairman of Nagar Palika Parishad, Khatauli and due to personal and political vendetta, the respondent no.2 maliciously filed the application under Section 319 Cr.P.C. It is further submitted that learned court below has not recorded any valid reason for summoning of the appellant under Section 319 Cr.P.C. or not recorded any prima facie finding as per mandate of Section 319 Cr.P.C., therefore, the order is bad in the eyes of law. It is further submitted that police has charge-sheeted the other accused persons, namely, Raju Balmiki, Danish, Gaurav @ Gora and Vipul @ Khuni and exonerated the appellant after investigation because police did not find any cogent evidence against the appellant. It is also submitted that at the time of alleged incident the appellant was Chairman of Nagar Palika Parisad, Khatauli and as per the version of the first information report itself, the father of respondent no.2 had given a statement against him in election petition filed against the appellant which itself shows vendetta on the part of respondent no.2. But this material fact of the matter was completely ignored by learned court below while passing the impugned order. It is further submitted that there was no motive or intention of the appellant/accused to conspire with other accused to commit the alleged offence. The police investigated the matter and on the strength of material available on the record as well as the statement recorded during the investigation, no role of the appellant was found in it. So the appellant was exonerated by the Investigating Officer and was not charge-sheeted, but this material aspect was completely ignored by learned court below. It is further submitted that the prosecution story as set up in the first information report itself states that Raju Balmiki and two other unknown persons were having weapon in their hand and after the incident they fled from the place of occurrence on motorcycle. No role has been assigned to the appellant. The only allegation levelled against the appellant is that he is inimical to the brother and father of the informant due to political reason as such the accused/appellant was wrongly named in conspiracy of murder of the deceased, whereas no such involvement was found by the Investigating Officer while collecting the evidence and material during investigation. This material aspect was also ignored by learned court below. It is further submitted that there is no sufficient evidence against the accused/appellant and after proper investigation, the charge-sheet has been submitted against other co-accused. Since no material was found against the accused/appellant herein, as such the final report was submitted by the Investigating Officer against the appellant, but learned court below has ignored this material fact of the matter. It is also submitted that the evidence collected by the police during investigation is clearly pointing out the innocence of the appellant, but this material aspect was completely ignored by court below while passing the impugned order. It is also submitted that after filing of the charge-sheet dated 20.06.2017, the cognizance was taken against the accused persons named in the charge-sheet and summons were issued against them, but no protest petition was filed by the informant against the accused/appellant at that point of time and deliberately due to mala fide intention he moved an application dated 24.11.2021 under Section 319 Cr.P.C. against the accused/appellant. It is further submitted that learned court below has cited various decisions of Hon'ble Supreme Court regarding principle laid down in respect of Section 319 Cr.P.C., which is misinterpreted by the learned court below while passing the impugned order. It is also submitted that learned court below has taken into consideration the statement of PW-1 who is the first informant himself as well as the statement of PW-2 Babu Lal, father of the deceased, and PW-4 Sudheer Kumar Goel and passed the impugned order in a very mechanical manner, without looking into the material as well as evidence available on the record. It is further submitted that statement of PW-1 was recorded under Section 161 Cr.P.C. and no material was found against the accused/appellant in respect of allegation levelled in the first information report. Likewise, learned court below has taken into consideration the statement of PW-2, who is an interested witness and he has deposed that he had appeared as witness against the accused/appellant in an election petition filed against him. The statement of PW-2 clearly reflects that he has personal grudge against the appellant and is wrongly deposing against him. It is also submitted that learned lower court considered the statement of PW-4 Sudheer Kumar Goel and illegally relied upon his statement because he was an interested witness and scriber of Tehrir, having enmity with accused/appellant. It is further submitted that merely perusal of the certified copy of the impugned order transpires that order has been passed on 27.01.2022, but order was signed by the Presiding Officer on 22.02.2022. It is further submitted that perusal of the order-sheet dated 27.01.2022 also transpires that the matter was not heard on 27.01.2022 and ultimately order was passed on 22.02.2022. As such, it is manifestly clear that learned court below has already made its mind prior to passing of the impugned order dated 27.01.2022/22.02.2022 which is not sustainable in the eyes of law and is liable to be set aside. It is further submitted that learned court below has passed the impugned order illegally, without considering the relevant fact of the matter and in absence of any credible evidence against the appellant, only on the basis of statement of PW-1, PW-2 and PW-4 who are interested witnesses, which is totally against the ambit and scope of Section 319 Cr.P.C. It is further submitted that the power under Section 319 Cr.P.C. is extraordinary power, which ought to have been used very sparingly and only if compelling or cogent reason exits against the person sought to be summoned, but in the present matter police had exonerated the appellant on the basis of the evidence collected during investigation. It is submitted that accused/appellant was roped in this case by the respondent no.2 by moving an application under Section 319 Cr.P.C. just to settle his personal and political vendetta, but learned court below totally ignored the provision contained in Section 319 Cr.P.C. and without recording its satisfaction that there exists sufficient ground for summoning the appellant, illegally allowed the application moved by the informant. It is also submitted that learned court below while exercising the power under Section 319 Cr.P.C. in the present case miserably failed the correct interpretation of Full Bench decision of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others, reported in (2014) 3 SCC 92. It is further submitted that the court below placed reliance upon other decision rendered by Hon'ble Supreme Court in the case of Sarojben Ashwin Kumar Shah and Others vs. State of Gujarat and others, reported in (2011) 13 SCC 316 and in Devwati and others vs. State of Haryana and others, reported in (2019) 4 SCC 329, but misinterpret the law laid down by the Hon'ble Supreme Court as such impugned order is not sustainable in the eyes of law. It is also submitted that for exercising the power under Section 319 Cr.P.C. the evidence required is of such a standard that if it remains unrebutted it would lead to conviction of the accused. It is further submitted that there is no evidence available on the record which if remains unrebutted would lead to the conviction of the accused/appellant. It is submitted by learned counsel for the accused-appellant that the only evidence available on the record against the accused/appellant regarding conspiracy of murder of brother of the informant is the confessional statement of co-accused Gaurav @ Gora who had confessed before PW-4 Sudheer Kumar Goel in the year, 2017 that the deceased Rajkumar @ Raja Balmiki has ruined his liquor business and he also said that arrangement has been made to kill him by two shooters and accused/appellant Paras Jain will bear all the expenses in this regard. It is further submitted that the only evidence available against the appellant Paras Jain is the confession of co-accused Gaurav @ Gora before PW-4 Sudheer Kumar Goel. It is further submitted that the confession of co-accused cannot be pressed into service for summoning of the appellant. It is further submitted that there is no evidence of conspiracy against accused/appellant to commit murder of brother of the first informant. It is also submitted that witness PW-2 Babu Lal who deposed before the court due to enimity with Paras Jain that Paras Jain was present at the place of occurrence, when he was crying near the dead body of his son and Paras Jain had said that it had to happen and he was apprehended by the police but he was not sent to jail and he had also pressurized him to compromise the matter. It is further submitted that Sudheer Kumar Goel PW-4 and Babu Lal PW-2 were having inimical terms with Paras Jain, therefore, their statements cannot be relied on. It is also submitted by learned counsel for the appellant that power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as laid down by Hon'ble Apex Court in Hardeep Singh vs. State of Punjab, reported in (2014) 3 SCC 92 has to be applied is one which is more than prima facie case as exercise at the time of framing of the charge but of such satisfaction to an extent that the evidence, if remains unrebutted, it would lead to conviction as also laid down by Hon'ble Apex Court in the case of Sagar vs. State of UP, reported in 2020 Live law (SC) 265. It is further submitted that confession of co-accused cannot be relied on under Section 10 of Evidence Act, where it was recorded after the murder when the conspiracy had culminated and has relied on the law laid down by Hon'ble Apex Court in Appeal (Crl) 44 of 2005 Jayendra Saraswathi Swamigal vs. State of Tamil Nadu decided on 10.01.2005. He has also submitted that confessional statement of co-accused Gaurav @ Gora before Sudheer Kumar Goel PW-4 cannot be relied on in view of law laid down by Hon'ble Privy Council in Mirza Akbar v. King Emperor, AIR 1940 PC 176. Lastly, it is submitted by learned counsel for the appellant that police on the strength of statement of independent witness has exonerated the appellant Paras Jain and did not submit charge-sheet against him. The cognizance of offence was taken against the accused persons named in the charge-sheet. Informant had not filed any protest petition against the final report filed by the police exonerating the accused/appellant Paras Jain and the application for summoning of appellant Paras Jain is moved with mala fide intention under Section 319 Cr.P.C. It is also submitted that the accused/appellant Paras Jain is wrongly named in the first information report and witness PW-1 Rana Pratap has wrongly roped him in the first information report. It is further submitted that witnesses PW-1 Rana Pratap, PW-2 Babu Lal and PW-4 Sudheer Kumar Goel were inimical to accused/appellant Paras Jain so they are interested and inimical witnesses and no reliance can be placed on their statements recorded in the court and learned lower court has illegally relied on their depositions and summoned the accused/appellant Paras Jain to face trial for offence punishable under Sections 302, 120-B I.P.C. and 3(2)(V) SC/ST Act together with charge-sheeted accused.

8. On the other hand, it has been submitted by learned A.G.A. as well as learned counsel for the informant that appellant Paras Jain was named in the first information report as conspirator of the murder of brother of the informant and the informant Rana Pratap, Babu Lal, father of the deceased, and Sudheer Kumar Goel in their statement under Section 161 Cr.P.C. and in the statement before the court have clearly stated that appellant Paras Jain had hatched conspiracy with accused Gaurav @ Gora, Raju Balmiki and two other persons to commit murder of brother of the informant. It is further submitted that statement of the witnesses also corroborates the involvement of appellant Paras Jain as conspirator in murder of the deceased. It is also submitted that although the informant has not moved any protest petition against the final report filed by the police against Paras Jain, but it will not preclude the informant to move application under Section 319 Cr.P.C. after recording the depositions of the witnesses in the court. It is further submitted that on the top of the impugned order, the date is shown as 27.01.2022 while at the bottom of the order, the date is shown as 22.02.2022 which does not prejudice the accused/appellant. It is further submitted that the order will be deemed to have been passed on the day on which the order was signed and on the top of the order-sheet the date is mentioned as 27.01.2022 due to topographical error. It is further submitted that accused/appellant has no locus of hearing at the time of passing of impugned order. It is further submitted that from the perusal of the statement of witnesses PW-1 Rana Pratap, especially, PW-2 Babu Lal and PW-4 Sudheer Kumar Goel, it is established that if it remains unrebutted, it would lead to the conviction of the accused/appellant Paras Jain. It is further submitted that before PW-4 Sudheer Kumar Goel, the accused Gaurav @ Gora has admitted prior to the incident in the month of March, 2017 that deceased Rajkumar @ Raja Balmiki has ruined his liquor business. He has also confessed that in order to get Rajkumar killed two shooters have been hired and engaged for his killing and the expenses in this regard will be borne by Paras Jain. It is submitted by learned A.G.A. and learned counsel for the informant that confession of the accused regarding conspiracy is admissible against other co-accused in view of Section 10 of the Indian Evidence Act. It is also submitted that the detail of the enmity with Paras Jain was mentioned by the informant in the first information report, which is corroborated by the statement of PW-1 Rana Pratap and PW-2 Babu Lal. It is further submitted that PW-2 Babu Lal deposed in the court that while he was crying near the dead body of his son, Paris Jain was present there and he said that it had to happen, thereafter, Paras Jain was apprehended by the police but was not sent to jail and he had also pressurized him to enter into compromise. It is submitted that learned lower court has taken into consideration the evidence available on the record and the statement recorded during trial that clearly establish that Paras Jain was also involved in the conspiracy of the murder of the deceased Rajkumar. It is further submitted that evidence adduced by the prosecution remains unrebutted and it would lead to the conviction of the appellant Paras Jain. It is further submitted that in above circumstances the present case fulfills the requirement for summoning of the accused for facing trial together with charge-sheeted accused as laid down by Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab (Supra). It is further submitted that accused can be summoned on the basis of examination-in-chief of the witnesses and the court need not to wait till cross-examination. If on the basis of examination-in-chief of the witnesses, the court is satisfied that prima facie case is made out against the proposed accused, the court may in exercise of power under Section 319 Code of Criminal Procedure arraign such a person as accused to face trial and reliance has been placed on the law laid down by Hon'ble Apex Court in Sartaj Singh vs. State of Haryana and others, reported in MANU/SC/0184/2021. It is further submitted that a person, who is named in the first information report or in complaint with the allegation that he/she has committed particular crime or offence but against whom police does not launch prosecution or not file charge-sheet or drop the case, can be proceeded again under Section 319 Cr.P.C., if from the evidence collected/produced in the course of any enquiry into a trial of an offence the court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused together. As a corollary, it was held that the process issued against the appellant under Section 319 Cr.P.C. cannot be quashed only on the ground that although he was named in the complaint but the police did not file charge-sheet against him and he has placed reliance on the law laid down by Hon'ble Supreme Court in the case of Suman vs. State of Rajasthan, reported in MANU/SC/ 1819/2009. It is further submitted that in the facts and circumstances of the case, the appeal is liable to be dismissed and the impugned order is liable to be upheld.

9. I have given thoughtful consideration to the rival contentions raised by learned counsel of the parties and have gone through the record. It is needed to refer the observations of Hon'ble Apex Court in Sartaj Singh vs. State of Haryana, reported in MANU/SC/0184/2021 paragraphs 6, 6.1, 6.1.2, 6.1.3, 6.1.4, 6.1.5, 6.1.7, 6.2, 6.3 and 6.4 which are as follows:-

"6.1. While considering the rival submissions, the law on the scope and ambit of the Section 319 Code Criminal Procedure is required to be considered and for that few decisions of this Court is required to be referred to.

6.1.1. In Hardeep Singh (supra), this Court had an occasion to consider in detail the scope and ambit of the powers of the Magistrate under Section 319 CrPC, the object and purpose of Section 319 CrPC etc. It is observed in the said decision that the entire effort is not to allow the real perpetrator of an offence to get away unpunished. It is observed that this is also a part of fair trial and in order to achieve this very end that the legislature thought of incorporating the provisions of Section 319 CrPC. It is further observed that for the empowerment of the courts to ensure that the criminal administration of justice works properly, the law has been appropriately codified and modified by the legislature under the CrPC indicating as to how the Courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law. It is also observed that it is the duty of the court to find out the real truth and to ensure that the guilty does not go unpunished. In Paragraphs 7 and 8, this Court observed and held as under:

"7. The Constitutional mandate under Articles 20 and 21 of the Constitution of India, 1950 (hereinafter referred to as the ''Constitution') provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to the society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under the Cr.P.C. indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty.

8. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Cr.P.C."

6.1.2. In the said case, the following five questions fell for consideration before this Court:

(i) What is the stage at which power under Section 319 CrPC can be exercised?

(ii) Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross-examination or 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?

(iii) Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"

6.1.3. While considering the aforesaid questions, this Court in Hardeep Singh (supra) observed and held as under:

"12. Section 319 CrPC 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 CrPC.

13. 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 CrPC?

14. The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of CrPC and the judgments that have been relied on for the said purpose. The controversy centres around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.

17. Section 319 CrPC 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 charge-sheet filed under Section 173 CrPC 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.

18. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.

19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law 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 desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.

22. In our opinion, Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018].

47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session.

53. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 CrPC cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018]. The dispute therein was resolved visualising a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 CrPC is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 CrPC confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it.

54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC.

55. Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein-above.

56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections 200, 201, 202, etc. CrPC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded."

6.1.4. While answering Questions (iii), namely, whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial, this Court, in the aforesaid decision has observed and held as under:

"58. To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 CrPC, the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that come up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be "where ... it appears from the evidence" before the court.

59. Before we answer this issue, let us examine the meaning of the word "evidence". According to Section 3 of the Evidence Act, "evidence" means and includes:

"(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence."

78. It is, therefore, clear that the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation.

82. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material along with the charge-sheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge-sheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges.

83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word "evidence" as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court.

84. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.

85. 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 corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The "evidence" is thus, limited to the evidence recorded during trial."

6.1.5. While answering Question (ii) namely, whether the word "evidence" used in Section 319(1) CrPC means as arising in examination-in-chief or also together with cross-examination, in the aforesaid decision, this Court has observed and held as under:

"86. The second question referred to herein is in relation to the word "evidence" as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination-in-chief. In Rakesh [(2001) 6 SCC 248 : 2001 SCC (Cri) 1090 : AIR 2001 SC 2521] , it was held that: (SCC p. 252, para 10)

"10. ... It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not."

87. In Ranjit Singh [Ranjit Singhh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC 3148] , this Court held that: (SCC p. 156, para 20)

"20. ... it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."

88. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] , it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross-examination is over and that there would be no illegality in doing so. A similar view has been taken by a two-judge Bench in Harbhajan Singh v. State of Punjab [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] . This Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2009) 16 SCC 785 : (2010) 2 SCC (Cri) 355] seems to have misread the judgment in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] , as it construed that the said judgment laid down that for the exercise of power under Section 319 CrPC, the court has to necessarily wait till the witness is cross-examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC.

89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.

90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] , all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words "such person could be tried" instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence.

91. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(es) is obliterating the role of persons already facing trial. More so, Section 299 CrPC enables the court to record evidence in absence of the accused in the circumstances mentioned therein.

92. 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 the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence."

6.1.6. While answering Question (iv), namely, what is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C., this Court after considering various earlier decisions on this point, has observed and held as under:

"105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. 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 the 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."

6.1.7. While answering Question (v), namely, in what situations can the power under Section 319 Cr.P.C. be exercised: named in the FIR, but not charge-sheeted or has been discharged, this Court has observed and held as under:

"112. However, there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation, the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 CrPC without resorting to the provision of Section 319 Cr.P.C. directly.

116. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 CrPC."

6.2. Considering the law laid down by this Court in Hardeep Singh (supra) and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 Cr.P.C. even on the basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till the cross-examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) 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 (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.

6.3. In S. Mohammed Ispahani v. Yogendra Chandak (2017) 16 SCC 226, this Court has observed and held as under: (SCC p. 243)

"35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 Cr.P.C. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."

6.4. In the case of Rajesh v. State of Haryana (2019) 6 SCC 368, after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused."

10. The relevancy of the confessional statement of co-accused before witness regarding involvement of other accused in conspiracy to commit the offence before incident is relevant and can be relied on as laid down by Hon'ble Privy Council in the case of Mirza Akebar vs. King Emperor, 1940 AIR (PC) 176. Section 10 of the Indian Evidence Act reads as follows:

"10. Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

11. In this case, on this point the statement of witness PW-4 Sudheer Kumar Goel is relevant. He was also scriber of the Tehrir (Exhibit-Ka-1). He has deposed before the court that in the month of October, 2016 he was detained in Muzaffar Nagar jail in a case. He was sent to barrack no.2 where Meenu Tyagi was also detained. Later on, he was released on bail and he had visited to Meenu Tyagi for 2-3 times at jail. In the month of March, 2017, while he was returning from jail after visiting Meenu Tyagi, Gaurav @ Gora stopped him and told that his liquor business has been ruined by Rajkumar @ Raja Balmiki. Gaurav @ Gora had also told him that arrangement has been made to get Rajkumar @ Raja Balmiki killed by two shooters and Paras Jain will bear all the expenses.

12. In this case, incident has taken place on 05.04.2017 and the above-mentioned confessional statement was made before the witness PW-4 Sudheer Kumar Goel by co-accused Gaurav @ Gora before the incident in March, 2017, which according to Section 10 of Indian Evidence Act is relevant against the appellant Paras Jain. The veracity of the statement can be adjudicated at the time of trial. Moreover, Babu Lal PW-2, father of the deceased, has deposed that the incident took place on 05.04.2017 at around 7:30 a.m. in the morning, at that time his son Rajkumar @ Raja Balmiki was sitting at the shop and he had heard the sound of gunfire coming from the side of the shop and when he reached near the shop, he saw two men firing at his son and one person armed with weapon was standing at the gate. He had recognized Raju Balmiki as he was from his locality but he could not recognize the other two persons at that time. Thereafter, the police apprehended Danish to whom he had recognized at police outpost near Sujdu. He could not recognize the third person who had kept handkerchief and cap on his face. His son was hit by fire of firearm and the last fire was shot by Raju Balmiki at the forehead of his son Rajkumar @ Raja Balmiki in front of him. In his statement recorded on 10.10.2018 before the court, he has deposed that the accused fled on motorcycle. He has further deposed that Paras Jain, the then Chairman of Nagar Palika Parisad, Khatauli and Gaurav @ Gora were also involved in the killing of his son along with other co-accused. Gaurav @ Gora, who was detained in jail in National Security Act, had suspected many times that his son Rajkumar @ Raja Balmiki was involved in sending him jail. The accused Raju Balmiki and Gaurav @ Gora had many times threatened his son for life. He has further deposed that Paras Jain was having enmity with him due to the fact that after his retirement in the year, 2011, a sum of Rs. 2,40,000/- was pending. In this connection, Paras Jain had called him and told the executive officer to get the balance amount paid. Thereafter, he stood up to leave that place, thereupon, Paras Jain took out a piece of paper and asked him to give a report on it, he saw the paper which was pertaining to form of death on which the report of Safai Nayak and sign of witnesses of locality was needed. He refused to sign it because he had retired in 2011 and told Paras Jain that he could not sign it. On which, uncle of Paras Jain who was present there took out the gun from his pocket and put it on his temporal and threatened him to kill. Thereupon, he had given the report in fear. When he proceeded towards his house, Paras Jain threatened him that his son Rana Pratap is in service of Nagar Palika and he will not let him in the service. On the next day, he along with his son Raja Balmiki had gone to police station Khatuali and given an application, but no action was taken. Later on, he moved an application to SSP. When Paras Jain came to know that he had given an application at police station, he removed his son from the post of Safai Nayak and deputed him in front of his house for picking up garbage and he had also stopped the salary of his son for ten months. He has also deposed that the reason for animosity with Paras Jain was also that there was a litigation of election petition between Izhaar and Paras Jain in which he had appeared as witness of petitioner Izhaar and he had told the truth in the court, while he was returning from the court after giving evidence, Paras Jain, his father and uncle had threatened him that he will not obey unless his son would be killed. In this regard, he had complained at police station Khatauli and had also given an application in the court. He has further deposed that Paras Jain and Gaurav @ Gora together got murdered his son. He has also deposed that Paras Jain was present at the place of incident when he was crying near the dead body of his son, at that time Paras Jain stated that this was bound to happen, thereafter, he was apprehended by the police and kept in custody for 14 days, but was not sent to jail. Later on, Paras Jain pressurized him to compromise the matter to which he had refused.

13. PW-1 Rana Pratap has supported the version of the first information report in his statement before the court. The version of the first information report is given in paragraph 4 of the impugned judgment which is not needed to be reproduced here.

14. PW-4 Sudheer Kumar Goel in his statement before the court as well as before the Investigating Officer has stated that Gaurav @ Gora had confessed before him before the occurrence in the month of March, 2017. PW-4 is also the scriber of Tehrir (Exhibit-Ka-1). He has deposed before the court that in the month of October, 2016 he was detained in Muzaffar Nagar jail in a case. He was sent to barrack no.2 where one Meenu Tyagi was detained. Later on, he was released on bail and he had visited to Meenu Tyagi for 2-3 times at jail. In the month of March, 2017, while he was returning from jail after visiting Meenu Tyagi, Gaurav @ Gora stopped him and told that his liquor business has been ruined by Rajkumar @ Raja Balmiki. Gaurav @ Gora had also told him that arrangement has been made to get Rajkumar killed by two shooters and Paras Jain will bear all the expenses.

15. In this case, incident has taken place on 05.04.2017 and the above-mentioned confessional statement was given to PW-4 by Gaurav @ Gora in the month of March, 2017 before the incident. Therefore, the above confessional statement is admissible and relevant under Section 10 of the Indian Evidence Act regarding conspiracy against Paras Jain also in view of law laid down by Hon'ble Privy Council in Mirza Akebar vs. King Emperor, reported in 1940 AIR (PC) 176. In above circumstances, I find no substance in the argument of learned counsel for the appellant that the confessional statement of co-accused is not relevant even in cases of the conspiracy against other accused. Therefore, the law laid down by Hon'ble Supreme Court in Appeal (crl.) 44 of 2005 "Jayendra Saraswathi v. State of Tamil Nadu" decided on 10.01.2005 is not applicable in this case, because that case is not related to the conspiracy.

16. The accused/appellant Paras Jain was named in the first information report and the witnesses Rana Pratap PW-1, Babu Lal PW-2 and Sudheer Kumar Goel PW-4 in their statement before the Investigating Officer have given statement regarding conspiracy of accused/appellant Paras Jain and they have corroborated the same in their depositions recorded before the court. The police has not submitted charge-sheet against accused/appellant Paras Jain. Law expounded by Hon'ble Supreme Court regarding the ambit and scope of Section 319 Cr.P.C. in detail in the case of Hardeep Singh v. State of Punjab and others (supra) is still an important landmark judgment on this point. Hon'ble Supreme Court had framed five questions and the fifth one was as under:

"(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 charged or who have been discharged?"

The question (v) was answered as under;

"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 along with 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."

17. Therefore, the ratio of law laid down in Hardeep Singh v. State of Haryana and Another (supra) is that the person who is not named in first information report or a person named in first information report but charge-sheet has not been filed against him can be summoned to face trial under Section 319 Cr.P.C. provided that the evidence available against such person of such degree that would be for framing of charge as answered by Hon'ble Supreme Court while discussing the question number (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 under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?" This question was answered by as follows:

"A. Though under Section 319(4)(b) 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 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."

18. Hon'ble Supreme Court in Sagar vs. State of UP and Another, reported in 2020 live law(SC) 265 has considered the law laid down by Hon'ble Supreme Court and has held in paragraph 9 as follows:

"9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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...."

19. In the case in hand, the accused/appellant was named in first information report, in the statement under Section 161 Cr.P.C. recorded by the Investigating Officer, in the statement under Section 164 Cr.P.C. as well as in the statement of witnesses PW-1 Rana Pratap, PW-2 Babu Lal and PW-4 Sudheer Kumar Goel before the court which if remains unrebutted, it would lead to the conviction of the accused/appellant Paras Jain. Therefore, in this case the crucial test laid down by Hon'ble Supreme Court in Hardeep Singh vs. State of Haryana and Another (supra) is satisfied. Therefore, the order passed by learned court below is according to law which requires no interference.

20. In view of above, the instant appeal stands dismissed.

21. The interim order staying the proceedings of the court below is, hereby, vacated. Learned lower court is directed to proceed with the sessions trial expeditiously and conclude the same preferably within a period of one year, from the date of production of a certified copy of this order.

Order Date :- 20.12.2022

Vikas

[Mohd. Aslam, J.]