Andhra Pradesh High Court - Amravati
N.Seshagiri vs State Of Ap on 1 March, 2024
APHC010072852019
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
(Special Original Jurisdiction)
[
3330
]
FRIDAY ,THE FIRST DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION NO: 2238 OF 2019
Between:
N.SESHAGIRI AND OTHERS ...PETITIONER/ACCUSED(S)
AND
STATE OF AP AND OTHERS ...RESPONDENT/COMPLAINANT(S)
The Court made the following:
ORDER:
Assailing the order dated 21.01.2019 in Crl.M.P.
Crl.M.P
No.5/2019 in S.C. No.262/2018, the present Criminal Petition
is filed to quash the same in allowing the petition filed u/s 319
Crl.P.C. in adding the accused on par with other accused.
2. The State has filed the Crl.M.P. No.5/2019 to add the 5th
accused person
rson additionally to face trial on the basis of
evidence of PW1.
3. The defacto complainant has lodged a report to the
police Edlapadu for appropriate action against the accused
alleging that on came to know the
he arrayed accused in the
charge sheet and the proposed accused has caused damage to
the property and set fire to house but for taking of Navya who
is the sister of Accused No.1 by Athota Syam Kumar.
4. LW3 and LW4 in their Section 161 Cr.P.C. Statements
categorically stated that the proposed accused were not
present at the time of incident and they are in search of
Navya.
5. Basing on the report of the defacto complainant and the
statements recorded under Section 161 Cr.P.C., the police
Edlapadu submitted the charge sheet against A1 to A4 who
are arrayed as accused in the charge-sheet by deleting the
proposed accused.
6. Now, the present Criminal Miscellaneous Petition No.5 of
2019 is filed to add the proposed accused as accused basing
on the statement of PW, (LW1/defacto-complainant) where the
defacto complainant has stated all the nine persons named in
the FIR went to her house and break open the locks of the
house, they set fire by pouring the kerosene and their names
were mentioned in the FIR by the prosecution.
7. The petitioners/proposed accused have filed counter
affidavit and stated that PW1 (LW1/defacto complainant) is
not the eye witness to the incident and LW3 and LW4 have
categorically stated that the proposed accused were not
present at the scene of offence and they are in search of Navya
who said to be love with A. Syam Kumar.
8. Learned Principal Assistant Sessions Judge, at
Narasaraopet, basing upon the Chief Examination of the PW1,
has allowed the petition filed by the State under Section 319
Cr.P.C. and added as accused, observing that the report
lodged to the police also reflects the name of the proposed
accused.
9. Assailing the order in allowing the petition filed under
Section 319 Crl.P.C., the present Criminal Petition is filed on
the grounds reiterating the counter averments that PW1 is not
the eye witness to the incident and the statements of LW3 and
4 categorically speaks that the propose accused are not
present at the scene of offence on the date of incident and they
are in search of their younger son and the discretionary and
extraordinary power vested in the Court has to be exercised
sparingly but in the present case, the learned Principal
Assistant Session Judge has exceeded his discretionary power
and the police have rightly filed the charge sheet and therefore
urged to set aside /quash the order dated 21.01.2019 in
Criminal Miscellaneous Petition No.5 of 2019 in S.C. No.262 of
2018.
10. Now, the point for consideration, whether the order
adding accused under Section 319 by the learned Magistrate
is sustainable and whether the learned Magistrate has
exceeded his discretion and extraordinary power while
allowing the petition in adding the accused ?
11. And it is well known principle and as held by the Hon'ble
Apex Court in several judicial pronouncements that the duty
of the Court is to know the real culprit and punish to do
justice to the victim. When, the investigation agency for any
reason does not array one of the real culprits, the Court is not
powerless in calling the accused to face trial and Section 319
Cr.P.C. is an enabling provision enables the Court to take
appropriate steps for proceeding not being arrayed as an
accused can be exercised after filing charge sheet and before
pronouncement of the judgment except during the stage of
Section 207/208 Cr.P.C., the committal etc, which is only a
pretrial stage intended to put the process into motion.
12. A Perusal of Section 319 of the Cr.P.C. would clearly
indicate that on the objective satisfaction of the Court a
person may be 'arrested' or 'summoned' as the circumstances
of the case may require, if it appears from the evidence that
any such person not being the accused has committed an
offence for which such person could be tried together with the
already arraigned accused persons. The Constitution Bench
in Hardeep Singh v. State of Punjab and others1 answered in
the following manner:
95. At the time of taking cognizance, the Court has to see
whether a prima facie case is made out to proceed against
the accused. Under Section 319 Cr.P.C., though the test of
prima facie case is the same, the degree of satisfaction that
is required is much stricter. A two-Judge Bench of this
Court in Vikas v. State of Rajasthan2, held that on
the objective satisfaction of the court a person may be
"arrested" or "summoned", as the circumstances of the case
may require, if it appears from the evidence that any such
person not being the accused has committed an offence for
which such person could be tried together with the already
arraigned accused persons.
105. Power under Section 319 Cr.P.C. is a discretionary
and an extraordinary power. It is to be exercised sparingly
1 (2014) 3 SCC 92
(2014) 3 SCC 321
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.
Emphasis supplied
13. The Hon'ble Apex Court after recapitulating held
in Brijendra Singh & Ors vs State Of Rajasthan 3 as follows:
The 'evidence' herein means the material that is brought
before the Court during trial. Insofar as the
material/evidence collected by the IO at the stage of
inquiry is concerned, it can be utilised for corroboration
and to support the evidence recorded by the Court to
invoke the power under Section 319 Cr.P.C. No doubt,
such evidence that has surfaced in examination-in-chief,
without cross- examination of witnesses, can also be
taken into consideration. However, since it is a
discretionary power given to the Court under Section
319 Cr.P.C. and is also an extraordinary one, same has
to be exercised sparingly and only in those cases where
the circumstances of the case so warrants. The degree of
satisfaction is more than the degree which is warranted
at the time of framing of the charges against others in
respect of whom charge sheet was filed. Only where
strong and cogent evidence occurs against a person from
the evidence led before the Court that such power
should be exercised. It is not to be exercised in a casual
or a cavalier manner. The prima facie opinion which is to
be formed requires stronger evidence than mere
probability of his complicity.
14. Learned counsel for the petitioners would rely on the
judgment of Hon'ble Apex Court in Sunil Kumar Gupta vs The
3 2017 (7) SCC 706
State Of Uttar Pradesh4, the Apex Court has referred the
judgment in Sarabjit Singh and Another vs. State of Punjab and
Another5, where the Apex Court has held in the following:
Whereas the test of prima facie case may be sufficient for
taking cognizance of an offence at the stage of framing of
charge, the court must be satisfied that there exists a
strong suspicion. While framing charge in terms of Section
227 of the Code, the court must consider the entire
materials on record to form an opinion that the evidence if
unrebutted would lead to a judgment of conviction.
Whether a higher standard be set up for the purpose of
invoking the jurisdiction under Section 319 of the Code is
the question. The answer to these questions should be
rendered in the affirmative. Unless a higher standard for
the purpose of forming an opinion to summon a person as
an additional accused is laid down, the ingredients thereof
viz. (i) an extraordinary case, and (ii) a case for sparingly
(sic sparing) exercise of jurisdiction, would not be satisfied."
[emphasis supplied]
15. Now, on the anvil of the above judicial pronouncements
whether the learned judge has exercised discretion and an
extraordinary power sparingly and only in those cases where
2019 (4) SCC 556
5 (2009) 16 SCC 46
the circumstances of the case so warrant. In my consider view
answer is negative. As seen from the report lodged to the
police, charge sheet and statements of LW's 3 & 4. In the
report lodged to the police the defacto-complainant stated that
she came to know that all the accused have set fire to the
house but she is not the witness to the incident and as per the
statements of LW's 3 & 4 that the proposed accused is not
present at the scene of offence or at the time of incident. When
the defector complainant is not present at the scene of offence
then statement of such witness amounts to hearsay evidence
which is not admissible in evidence and the learned judge has
taken in consideration the statement made in chief-
examination and allowed the application filed to add an
accused, no doubt that the real culprit should be punished to
do justice to the victim.
16. It is so weird or strange filing of the application by the
police when they have investigated the case and it has been
observed in the charge sheet there's no involvement of the
proposed accused on par with arraigned accused. No doubt,
such evidence that has surfaced in examination-in-chief,
without cross- examination of witnesses, can also be taken
into consideration, for adding of accused.
17. However, since it is a discretionary power given to the
Court under Section 319 Cr.P.C. and is also an extraordinary
one, same has to be exercised sparingly and only in those
cases where the circumstances of the case so warrants.
18. As held in the Constitution Bench judgment in Hardeep
Singh case (supra 1), for summoning an accused
under Section 319 Cr.P.C., it requires much stronger evidence
than mere probability.
19. As seen from the Chief examination of PW1, it is
specifically stated that she has seen the arrayed accused and
the proposed accused (1) Nagendla Silaja (2) Nagendla Rajyam
(3) Muppavarapu Venkateswararao and (4) Muppavarapu
Sridhar, came to the house of the defacto-complainant, they
have poured kerosene and set fire to the house and all the
above persons come out of the defacto-complainant's house
and went away.
20. As seen from the Chief Examination, it is specifically
stated that PW1 has seen the accused coming out of the house
of defacto complainant. Whether the defacto-complainant is
the eye-witness or not, has to elicit from the cross examination
or by way of marking the contradictions or omissions, if such
statement in the Chief Examination is contrary statement
made in FIR or under Section 161 Statements. And the duty
of the Court is to punish the real culprits to do justice to the
victim. As such, the order of the learned Assistant Sessions
Judge is sustainable under law and the contention raised by
the counsel for the petitioner sans merit.
21. Accordingly the Criminal Petition is dismissed.
As a sequel, interlocutory applications, if any pending in
this Criminal Petition shall stand closed.
________________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 01.03.2024
Harin
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO
Crl.P No. 2238 OF 2019
Date: 01-03-2024
Harin
