H.K.L Bhagat vs State
1996 Latest Caselaw 103 Del

JUDGMENT

Jaspal Singh, J.

(1) Satnami Bai is a witness for the prosecution in Sessions Case No.51/95. Her husband was allegedly killed during what have come to be known as 1984 riots. On January 15, 1996 she stated in her testimony that besides the accused persons facing the trial two more persons were also involved in the rioting, looting and killing of her husband. And, what is more, she specifically earned them. This led the Prosecutor to move an application for proceeding against them too. The learned Additional Sessions Judge, taking note of the statement, came to the conclusion that there was a prima facie case of "rioting, killing and looting" against the said two. Consequently, taking recourse to section 319 of the Code of Criminal Procedure he directed them to be brought before the court to face trial. Since one of them was already before the court, he was taken into custody. As against the other non- bailable warrants were issued. That other person is H.K.L.Bhagat, who finding the order unpalatable, hassled this criminal revision.

(2) Out of the seventeen paragraphs of the petition, the first four are autobiographical. We are told that the petitioner was a brilliant law student, a successful lawyer, a freedom fighter, and a fulfillled (?) politician climbing one ladder of success after the other. The next six relate to the riots of 1984 and to the different Committees appointed and registration of some cases including the one relating to the death of Satnami Bai's husband. The remaining, however, relate to the impugned order. The summum bonum of the remaining paragraphs is that the learned Additional Sessions Judge had taken the matter "lightly and casually" and had acted only on the basis of the examination-in-chief which "was totally unconvincing and highly unbelievable in as much as she was making the statement against a person who was holding a very important portfolio (Union Minister of I & B) at the relevant time"

(3) Undoubtedly, the autobiographical account makes an impressive reading. The petitioner surely appears to have remained at the center-stage of Indian polity. But then statement of a witness does not become "totally unconvincing" or "highly un- believable" merely because it is made against a person who was at one time holding a "very important portfolio". However, one thing is certain and it is that, irrespective of the personalities involved, the power under section 319 of the Code of Criminal Procedure has to be exercised very sparingly.

(4) It was said, during arguments, that the learned trial judge ought to have analysed the statement of Satnami Bai more carefully. The grievance was that the entire approach to the statement, instead of being critical, was rather casual and that the Court ought to have taken note of the fact that neither in the First Information Report nor in her statements recorded under section 161 nor before any other forum had Satnami Bai ever named the petitioner, and that, in view of this, her statement ought to have been rejected as unworthy of reliance. However, the Supreme Court has held in Joginder Singh v. State of Punjab that it is the "evidence recorded at the trial" which is to be looked into. Same view has been expressed again by the Supreme Court in Kishun Singh & others v. State of Bihar Jt 1993 (1) Sc 1773 wherein it was observed at page 183 of the report that the power can be "exercised only if it so appears from the evidence at the trial and not otherwise" and this being the position the grievance of the petitioner cannot be taken to be of any substance more so because the learned trial Judge has confined himself within the limit prescribed. In any case, let me make one thing clear. The learned trial Judge, at the stage when he passed the impugned order, was not required to evaluate or appraise the evidence with a view to assess whether it was sufficient for petitioners ultimate conviction. Going back once again to the judgments of the Supreme Court referred to above, in Joginder Singh v. State of Punjab it was observed that .the court can add any person, not an accused before it, as an accused for the offence which such added accused "appears" to have committed. In Kishun Singh and others v. State of Bihar, the apex court said:

"THISpower, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person so arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police"

(EMPHASISsupplied))

AND that

"THUS on a plain reading of section 193, as it presently stands once the case is committed to the court of Session by a Magistrate under the Code, the restriction placed on the power of the court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted on the Magistrate committing the case under section 209 to the Court of Session the bar of section 193 is lifted thereby investing the court of session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record."

(5) The learned trial judge was thus only required to satisfy himself that the petitioner was also involved in the commission of the crime. A prima facie case is not the same thing as "proof". It only means that there is a ground for proceeding. And, if that be the test, I do say, and say it without hesitation, that the statement of that hopeless woman does show a ground, nay a strong ground for proceeding against the petitioner.

(6) It was contended that the offence is more than a decade old and commencing the prosecution at this distance of time would amount to persecution. What Satnami Bai has stated is something, dare I say it? simply shocking. If the allegations are proved they constitute serious offences and, therefore, they ought to be tried in the interest of justice. It matters not that a decade has passed by. It matters not also that the petitioner had at one time occupied a very important portfolio in the Indian Cabinet. The petitioner, we are told, has been a practicing lawyer also besides being a politician. Neither the robe which he once donned nor the chair which he once occupied can make him claim any sort of impunity, protection or a superior right. Let us remember what the Supreme Court has told us in Raghubans Dubey v. State of Bihar , Hariram Satpathy v. Tikaram Agarwala and Kishan Singh and others v. State of Bihar (supra). It is, that once the court takes cognizance of the offence it becomes the duty of the court to Find out the real offenders and if it comes to the conclusion that besides the persons put up for trial some others are also involved in the commission of the crime, it is the Court's duty to summon them to stand trial along with those already named.

(7) This, however, is not the end of the matter. It was contended on behalf of the petitioner that section 319 of the Code of Criminal Procedure was not available to the learned trial judge as the statement of Satnami Bai was not "evidence". Undoubtedly, the power under sub-section (1) of section 319 of the Code can be exercised only in those cases where involvement of persons other than those arraigned in the chargesheet comes to light "from the evidence" in the course of any inquiry or trial. Why is the statement of Satnami Bai recorded during the trial not "evidence"? As per the petitioner, it is not because she has not been cross-examined so far and action has been taken only on the basis of her examination-in-chief. This, we are told, renders the order illegal and in support reliance has been placed on four judgments. They are R.J.Lakhia v. State of Gujarat 1982 Cri Lj 1687; Amarjit Singh v. State of Punjab 1983 Cri Lj Noc 98; Gulam Mondal v. Nazam Hossain 1987 Cri Li 729 (Calcutta) and Mohan Lal v. State of U.P. 1990 U.P. Cr. R.254. With all respect and humility at my command, I not only .beg to differ, but feel that the First three judgments rather present a sad spectacle. As for the fourth, I reserve my comment for a while.

(8) The Calcutta High Court judgment in Gulam Mondal's case provides no reasons in support of its dictum that examination-in-chief of a witness alone without his cross-examination would be incomplete evidence. It merely feels content, if I may say so with respect, by referring and relying upon the above-noted two judgments, one from Gujarat and the other from Punjab. Interestingly, (and I am using this expression wondering still whether it is appropriate or not), the judgment from the Gujarat High Court in R.J.Lakhia's case nowhere lays down as a proposition of law that action under section 319(1) of the Code cannot be taken only on the basis of examination-in-chief of a witness. And, coming to judgment from the Punjab High Court, it is not reported in full and gives no reasons at all. Rather its reading gives an impression as if the added accused has a right to cross-examine the witness, a proposition which takes no notice of section 319(4)(a) of the Code. In short thus whereas the judgment in RJ.Lakhia's case does not support the proposition, the Punjab and Haryana judgment in Amarjit Singh's case contains no reason, and vet, the Calcutta High Court in Gulam Mondal's case tells us that the "reasons given in the decisions are sound." Pray, where are those "reasons"?

(9) Coming to Mohan Lal v. State of U .I (Supra) it surely says that it would be an error to summon a person "merely on the basis of the statement recorded in the examination-in-chief of the witness without waiting for the cross-examination to becompleted". However, it too provides no reason for the view. It merely, in support, refers to an unreported judgment of the Court in Barki and Prayaga v. State. Significantly, in Barki's case the court relied upon Gujarat High Court's judgment in RJ.Lakhia's case supra) and upon the judgment of the Calcutta High Court in Gulam Mondal's case (supra). I have already commented upon RJ.Lakhia and Gulam Mondal. The very fact that in Barki's case reliance was placed on those two judgments takes away the sting from the view taken therein and in turn saps away the strength of the judgment in Mohun Lal's case also as it is solely based on Barki. It may also not be out of place to mention that a contrary view has been taken by the same court in Margoobul Hasan v. State of U.P. 1988 Cri Lj 1467, and that in yet another case coming again from the Allahabad High Court in Sivrani v. Suryanarain 1994 Cri Lj 2026, it has been held that the word "evidence" includes statement of a witness which has not been tested on cross-examination. Incidentally, it not only discusses Mohan Lal v. State of U.P. (supra) but Barki v. State also which was relied upon in Mohan Lal's case and what appears from the discussion is that in Barki's case the order of summoning had been passed even while the examination-in-chief of the witness had not concluded. It is this " what distinguishes the present case from the facts in Barki's case.

(10) Reverting to Mohun Lal's case (supra) once again I may mention that in Virendra Singh v. State of U.P. 1992 Cri Lj 2825 not only that Mohun Lal's view was not followed, the view taken therein was also held to be "not in accord with the earlier decisions" of the Court in Chandra Pal Singh v. State of U.P. 1991 All Cri Cos. 332; Margoobul Hassan v. State 1988'Cri LJ1467 and Ram Niwas v. State of U.P. 1990 Cri Lj 460.

(11) The main purpose of section 319 of the Code appears to be that the whole case against all known suspects should be proceeded with expeditiously. The provision thus intends to serve a laudable purpose. Consequently, the word "evidence" must receive a liberal construction. To say that "evidence" as used in sub- section (1) of section 319 must necessarily mean examination-in-chief tested by cross-examination would neither further the purpose of the provision nor promote the cause of criminal justice. When the Supreme Court in Kishun Singh and others v. State of Bihar (supra) uses the words "from the material available on record", it, in my humble view, indicates that the word "evidence" is to be used in a comprehensive sense.

(12) SUB-SECTION (1) of Section 319 does not relate to evidence as between parties on record having the right to cross-examine the witnesses. It relates to a person who is ; not yet an accused and thus has no right to cross-examine the witnesses. He is a stranger to the proceedings and thus unconcerned with the question as to whether the witness in the proceeding has been cross-examined or not by the already arraigned accused. He would come into the picture only when process is issued. Even at the stage when the court is considering the question as to whether he should be summoned or not, he remains a stranger because that is a question which concerns the court and perhaps the complainant only. Looked at from that angle, one may think of provisions relating to complaints (Chapter Xv of the Code) whereunder the statements are only in the form of examination-in-chief and are not tested on the anvil of cross-examination. The Court under section 319(1)) acts likewise and thus may form its prima facie view on the basis of the examination-in-chief itself. This much with regard to the dispute raised around the word "evidence".

(13) Finding no infirmity with the impugned order, I hereby dismiss the revision petition.