Subhash Chand Kakkar vs State
2005 Latest Caselaw 291 Del

JUDGMENT

Manju Goel, J

1. The petitioner has been summoned under Section 319 of the Code of Criminal Procedure, 1973 (in short the `Code') vide an order dated 26.3.2001 in case FIR No. 141/84 police station Rajouri Garden and he is assailing that order in the present petition.

2. The petitioner was named in the column No. 2 of the charge sheet as a person not arrested and not sent up for trial. The incident of shoot-out is dated 27.3.1984 in which two persons expired. One was the brother of the petitioner called Suresh Kakkar, who was killed by the bullet fired by the complainant, Rattan Lal Verma. The other was Vijay Kumar who died on account of a shot fired by Suresh Kakkar. The petitioner has been named in the challan as S.C. Kakkar and Suresh Kakkar has been referred as the brother of S.C. Kakkar. The site of the accident was the showroom of M/s. Delhi Scooters at property No. 31A. On that date the court bailiff had arrived with orders to evict the petitioner who was the owner of the showroom of M/s. Delhi Scooters. The petitioner, his brother Suresh Kakkar and the manager of the showroom Panna Lal Chopra, the accused in this case were present. The complainant, Rattan Lal Verma who is the husband of the owner was also present with Vijay Kumar, the deceased and certain other persons. As the efforts of the bailiff were resisted and the bailiff withdrew from the spot a quarrel started which led to this shoot-out. The person who actually fired at Vijay Kumar, viz., Suresh Kakkar having himself died in the incident was not an accused in the challan. Panna Lal Chopra, the manager has been challaned as the accused by invoking Section 34 of the Indian Penal Code. The petitioner was admittedly present at the spot and was himself the owner of Delhi Scooters. The accused, Panna Lal Chopra, as per the challan, allegedly exhorted Suresh Kakkar to open fire, although the allegations do not otherwise show any active involvement in the incident. The reason why the petitioner was named in column No. 2 is the statement of Rajiv Verma recorded on 19.6.1984 in which it was stated that the petitioner had exhorted his brother Suresh Kakkar to open fire. It is clear from an inspection of the trial court record which is available before this court that the challan was ready to be presented on 7.6.1984 and the statement of Rajiv Verma was recorded thereafter on 19.6.1984 The challan was actually presented on 4.7.1984. The learned Metropolitan Magistrate before whom the challan was presented issued summons only to the accused named in the challan. An application under Section 319 Cr.P.C. was filed on 14.9.1984. The learned M.M. found that he did not have the jurisdiction to decide that application as the case had to be committed to Sessions and directed that the application be also sent to the court of Sessions for disposal. The court of Sessions did not take any action on that application and perhaps the prosecution never mentioned it till 28.11.2000 when a fresh application under Section 319 Code was filed by the prosecution. The application was opposed by Panna Lal Chopra, the accused under trial on the ground that the trial had already consumed a lot of time and in case the petitioner was summoned to stand trial for the offence, the trial will have to commence de novo causing prejudice to him. Before the Sessions Court the evidence against the petitioner was available in the form of statements of the complainant PW-3, statement of witness Rajiv Verma PW-13 and the statement of Sunil Verma PW-18. As already stated above, the complainant in the FIR had not named the petitioner as having taken any part in the conflict. The complainant squarely blamed his brother Suresh Kakkar for the offence of murder. The complaint makes no allegation that the petitioner exhorted anyone to take any extreme steps. The complaint was that it was Suresh Kakkar who himself threatened that in case anyone dares to evict the petitioner or Delhi Scooters he would be killed. Therefore, when the complainant comes in the witness box and says that Suresh Kakkar opened fire on the exhortation of the petitioner the same has to be taken with a pinch of salt. Rajiv Verma made his statement under Section 161 of the Code, as has been stated above, when the challan had already been prepared and was about to be submitted. By then three months had passed. Therefore, one has to be very cautious in acting upon the statement of Rajiv Verma although he came in the witness box and supported his statement under Section 161 of the Code. There is another witness PW-18, Sunil Verma. Obviously this witness never stated during investigation anything against the petitioner or otherwise the prosecution would not have waited till 19.6.1984 for naming the petitioner in column No. 2.

3. On the testimony of the complainant, PW-3, Rajiv Verma, PW-13 and that of PW-18 the court of Sessions has found it appropriate to summon the petitioner under Section 319 of the Code to stand trial for the offence of murder by virtue of Section 34 of the Indian Penal Code. It may be stated at the cost of repetition that the order was passed after almost 17 years of the incident. It has also to be kept in mind that although some amount of delay in the trial could be attributed to the accused, Panna Lal Chopra, but no part of the delay could be attributed to the petitioner who had not been summoned by any court till then. This leads this court to examine the purpose of Section 319 Cr.P.C. and the propriety of summoning this petitioner on the basis of the evidence narrated in paragraph No. 2.

4. It will be proper to commence this discussions by quoting Section 319 of the Code, which reads as under:

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

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

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

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

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

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

5. What is necessary to invoke the power under Section 319 is evidence that any person not being the accused has committed any offence. The section does not require the court to give a definite finding that the person required to be summoned under this section had actually committed any offence. Nor does this section requires the court to hear the person sought to be summoned under this section. How much evidence is necessary to take action under this section is also not available herein. Yet the most important word in this section is `may'. The court may proceed against such person for the offence which he appears to have committed. Since this power is discretionary the court must discharge the responsibility of being judicious in exercising this discretion. The court is not bound to summon a person as soon as some evidence against any person, not being an accused, comes to the notice of the court.

6. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. , the Supreme Court had occasion to deal with the nature of court's obligation under Section 319 and the Supreme Court had following to say:

"In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken......"

7. The judgment in the case of Ram Kishan Rohtagi (Supra) was noticed by the Supreme Court in the case of Michael Machado and Anr. v. Central Bureau of Investigation and Anr. reported as 2000 (1) JCC (SC) 294. The question that was posed before the Supreme Court in this case has been stated in the very opening paragraph of the judgment. I find it necessary to quote this paragraph for the circumstances in which the Supreme Court had to go into the nature of the duty of the court under Section 319 were very similar to the facts in the present case.

"When the trial in a criminal case against four accused persons proceeded to the penultimate stage (after examining 54 witnesses by then) the Metropolitan Magistrate, before whom the case was being tried, ordered two more persons to be arrayed as accused. If the order of the Magistrate is to sustain, the proceedings in respect of the newly added persons are to be re-commenced afresh, which means that the entire massive evidence thus far collected and the time which the Court has thus far spent for recording the evidence of such a large number of witnesses, besides the cost involved for all concerned to reach up to the present stage, would all become, for all practical purposes, a waste - a colossal waste. Is it so very necessary at this belated stage to bring such two more additions to the array of the accused at the cost of such a de novo trial?"

8. The Supreme Court after examining all the pros and cons, of court's power under Section 319 found that the power conferred upon the court was only a discretion which could be discerned from the words "court may proceed against such person". Explaining how this discretion has to be exercised the Supreme Court said:

"10. The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

11. But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons."

9. The Supreme Court eventually allowed the appeal by the person summoned by the M.M. It found that the statement of three witnesses which gave the evidence to summon the person created some suspicion but was not sufficient to hold that there was reasonable prospect of convicting the appellants of the offence of criminal conspiracy. The court found that in the situation before it a situation had not reached as to waste the whole massive evidence already collected by the trial court that far against the four accused arrayed in the case and found that the order of the trial court in exercise of power under Section 319 of the Code was required to be interfered with by enabling the trial to proceed to its normal culmination.

10. Despite having examined this judgment, the learned trial court in its zeal has summoned the petitioner. I have already observed the nature of evidence that was available before the court of Sessions to exercise the power under Section 319 of the Code. The complainant had not named the petitioner in the complaint at all. The witness Rajiv Verma gave the name of the petitioner in a statement which was recorded after the challan was prepared. The situation, therefore, is almost similar to the situation that obtained before the Supreme Court in the case of Michael Machado (Supra). The testimonies of the witnesses may give rise to some suspicion but it cannot be said that there was any reasonable prospect of the petitioner being convicted for the offence of having entertained common intention with the actual killer, Suresh Kakkar. It was not necessary at all to summon the petitioner in this situation and to force a de novo trial after 18 witnesses had already been examined by the court. Not only because the evidence gave rise nothing more than a faint suspicion but also because 17 years had passed between the incident and the order of summoning.

11. I find myself unable to agree with the court of Sessions. In my opinion, the interest of justice demands that the trial in this case which has been held up from 2001 on account of the trial court file having been obtained by this court for the purpose of hearing of the present petition to re-commence immediately.

12. It is not at all required that the petitioner be summoned to stand trial under Section 319 of the Code for the offence under Sections 302/307/323/34 of the Indian Penal Code and thereby waste the evidence collected so far and further cause prejudice to the accused, Panna Lal Chopra, who has already suffered the indignation of being an under-trial accused for all these years. I, therefore, allow the revision petition and set aside the impugned order. A copy of this order be sent to the trial court immediately with records. The trial court shall proceed with the trial on a day-to-day basis and take all steps for expeditious disposal of the case.