Chattisgarh High Court

Kunti Bai Markande vs State Of Chhattisgarh on 27 September, 2022

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                                                                                              NAFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                            Writ Petition (Cr.) No.480 of 2022

        Kunti Bai Markande, W/o Shankar Dayal, Aged about 34 years, R/o
        Village Dodopar, Thana City Kotwali, Balodabazar, District
        Balodabazar-Bhatapara (C.G.)
                                                           ---- Petitioner

                                              Versus

    1. State of Chhattisgarh, through the Secretary, Department of Home,
        Mahanadi Bhawan, Atal Nagar, Raipur, District Raipur, Chhattisgarh.

    2. Superintendent     of Police, Balodabazar-Bhatapara, Office                                 of
        Superintendent of Police, District Balodabazar-Bhatapara (C.G.)

    3. The Station House Officer, City Kotwali, Balodabazar, District
        Balodabazar-Bhatapara (C.G.)

    4. Public Prosecutor, Sessions' Court Balodabazar, Tahsil Balodabazar,
        District Balodabazar-Bhatapara (C.G.)
                                                                               ---- Respondents

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For Petitioner: Mr. N.K. Malaviya, Advocate. For Respondents No.1 to 3 / State: -

Mr. Animesh Tiwari, Deputy Advocate General.

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Hon'ble Shri Justice Sanjay K. Agrawal

Order On Board

27/09/2022

1. The petitioner herein / complainant has filed this writ petition calling in

question the impugned order dated 27-11-2021 passed by the 2 nd

Additional Sessions Judge, Balodabazaar in Sessions Trial

No.10/2021 by which the learned Additional Sessions Judge has

rejected the application filed by the petitioner / complainant under

Section 319 of the CrPC for arraigning Dayaram, Chotu, Shashi and

Hemant as co-accused in S.T.No.10/2021, finding no merit.

2. Mr. N.K. Malaviya, learned counsel appearing for the petitioner, would

submit that the learned Additional Sessions Judge is absolutely

unjustified in rejecting the application by recording a finding perverse

to the record. He would further submit that Parasram (PW-3) in his

statement recorded before the Court on 27-8-2021 has clearly stated

that the aforesaid four persons Dayaram, Chotu, Shashi and Hemant

have assaulted deceased Jayasurya by hands & fists and therefore in

view of the statement of Parasram (PW-3), the application under

Section 319 of the CrPC deserves to be allowed. He would rely upon

the decisions of the Supreme Court in the matters of Manjeet Singh v.

State of Haryana and others1 and Sagar v. State of Uttar Pradesh and

another2 in support of his submission. As such, the impugned order

deserves to be set aside.

3. Mr. Animesh Tiwari, learned State counsel, would submit that in view

of the decision of the Supreme Court in the matter of Hardeep Singh

v. State of Punjab and others3, which has been followed in Sagar

(supra), the order being discretionary, the writ petition deserves to be

dismissed.

4. I have heard learned counsel for the parties and considered their rival

submissions made herein-above and also went through the record

with utmost circumspection.

5. Parasram (PW-3) was examined on 27-8-2021 before the Court in

which he has stated that Dayaram, Chotu, Shashi and Hemant have

also caused injury to deceased Jayasurya by hands & fists and on that

basis, the said four persons were sought to be arraigned as accused

which the trial Court rejected by holding that in the statement of the

said witness recorded under Section 161 of the CrPC, he has not

stated the names of the proposed accused persons which has been

1 2021 SCC OnLine SC 632 2 (2022) 6 SCC 389 3 (2014) 3 SCC 92

sought to be challenged in this writ petition.

6. The scope and ambit of Section 319 of the CrPC was considered in

the Constitution Bench decision of the Supreme Court in Hardeep

Singh (supra) and it has been authoritatively laid down by their

Lordships in paragraphs 105 & 106 of the report as under: -

"105. Power under Section 319 CrPC 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."

7. The Constitution Bench decision of the Supreme Court in Hardeep

Singh (supra) has further been followed in Sagar (supra) in which their

Lordships have held that power under Section 319 of the CrPC is

discretionary and extraordinary, it should be exercised sparingly and

only in cases where the circumstances of the case so warrant, and

observed in paragraph 9 as under: -

"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. The learned Single Judge of the High Court has even failed to consider the basic principles laid down by this Court while invoking Section 319 of the Code, which has been considered by the learned trial Judge under its order dated 30-1-2018."

8. Similarly in Manjeet Singh (supra), the Constitution Bench decision of

the Supreme Court i.e. Hardeep Singh (supra) and other decisions

have been noticed and it has been held in paragraph 34 as under: -

"34. The ratio of the aforesaid decisions on the scope and ambit of the powers of the Court under Section 319 CrPC can be summarized as under:

(i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;

(ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly;

(iii) the law has been properly 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;

(iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished;

(v) 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;

(vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it;

(vii) 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;

(viii) 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;

(ix) the power under Section 319(1) CrPC can be exercised at any stage 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;

(x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence;

(xi) 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;

(xii) 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;

(xiii) 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);

(xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised;

(xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross-examination;

(xvi) 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 the charge- sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses);

(xvii) while exercising the powers under Section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial."

9. Reverting to the facts of the present case in the light of the principles

of law laid down by their Lordships of the Supreme Court in Hardeep

Singh (supra), Manjeet Singh (supra) and Sagar (supra), it is quite

vivid that jurisdiction under Section 319 of the CrPC being totally

discretionary and it is extraordinary, it has to be exercised sparingly

only in those cases where the circumstances of the case so warrant.

In that view of the matter, if the facts of the present case are examined

and the statement of Parasram (PW-3) before the Court is examined

in the light of his statement recorded under Section 161 of the CrPC, it

is quite vivid that Parasram (PW-3) has omitted to state anything

about Chotu, Shashi and Hemant and no overt act has been stated to

have been caused by Dayaram in his statement under Section 161 of