Bideshi Singh vs The State Of Jharkhand
2024 Latest Caselaw 804 Jhar

Jharkhand High Court

Bideshi Singh vs The State Of Jharkhand on 24 January, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

       IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr.M.P. No. 1758 of 2016
       1. Bideshi Singh
       2. Madan Singh
       3. Dharmendra Singh
       4. Biraj Singh
       5. Arun Singh
       6. Ram Baran Singh                            .....   ...    Petitioners
                                     Versus
      1. The State of Jharkhand.
      2. Upendra Singh                                ..... ...     Opposite Parties
                                --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

------

For the Petitioners : Mr. A.K. Kashyap, Advocate. For the State : Mr. Arup Kumar Dey, A.P.P.

------

04/ 24.01.2024 Nobody has responded on behalf of the O.P. No. 2, in view of that, this matter is being heard in absence of O.P. No. 2 on merits.

2. Heard Mr. A.K. Kashyap, learned senior counsel appearing for the petitioners and Mr. Arup Kumar Dey, learned A.P.P. for the State.

3. This petition has been filed for quashing of the order dated 16.06.2016, passed in S.T. No. 262 of 2015, whereby the petitioners have been called upon to face the trial under Section 319 Cr.P.C., arising out of Panki P.S. Case No. 39 of 2015 corresponding to G.R. No. 597 of 2015, pending in the court of learned Additional Sessions Judge-III, Palamau at Daltonganj.

4. Mr. A.K. Kashyap, learned senior counsel appearing for the petitioners submits that the said FIR was investigated by the police, wherein the petitioners have not been sent up for trial, however, in course of trial, the learned court after applying its mind under Section 319 Cr.P.C., has called upon the petitioners to face the trial by order dated 16.06.2016. He further submits that the other person, who has faced the trial has been acquitted in the present case. He submits that the said order has not been passed on the cogent material and the case of petitioners are fully covered in view of the judgment of the Hon'ble Supreme Court in the case of Hardeep Singh Versus State of Punjab & Ors., reported in (2014) 3 SCC 92. He further submits that the case of the petitioners is further covered in light of the judgment of the Hon'ble Supreme

Court in the case of Sukhpal Singh Khaira Versus State of Punjab, reported in (2023) 1 SCC 289. Relying on these two judgments, he submits that the impugned order may kindly be quashed.

5. Mr. Dey, learned A.P.P. appearing for the State submits that if in course of trial, if cogent materials have come in the evidence, anybody can be called upon under Section 319 Cr.P.C. to face the trial. He submits that the learned trial court after considering the evidences of P.Ws. 2, 3, 6, 8 and 9, in paras 1, 3, 5 and 6 and para-2 respectively, the name of these petitioners have been taken, in view of that, the learned court has rightly called upon the petitioners to face the trial under Section 319 Cr.P.C. and this petition is fit to be dismissed.

6. In the case of Hardeep Singh (Supra), as relied by Mr. Kashyap, learned senior counsel appearing for the petitioners, the Hon'ble Supreme Court in paras-108, 109 and 117 of the said judgment, held as follows:-

"108. In Anju Chaudhary v. State of U.P. [(2013) 6 SCC 384 : (2013) 4 SCC (Cri) 503] , a two-Judge Bench of this Court held that even in the cases where the report under Section 173(2) CrPC is filed in the court and investigation records the name of a person in Column 2, or even does not name the person as an accused at all, the court in exercise of its powers vested under Section 319 CrPC can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law.

109. In Suman v. State of Rajasthan [(2010) 1 SCC 250 : (2010) 1 SCC (Cri) 770 : AIR 2010 SC 518] , a two-Judge Bench of this Court observed that : (SCC p. 257, para 17) "17. ... There is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the court finds that such person has committed any offence for which he could be tried together with the other accused."

117. We accordingly sum up our conclusions as follows:

Questions (i) and (iii)

-- What is the stage at which power under Section 319 CrPC can be exercised?

AND

-- 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? Answer 117.1. In Dharam Pal case [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018] , the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 CrPC and the Sessions Judge need not wait till "evidence" under Section 319 CrPC becomes available for summoning an additional accused.

117.2. Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

117.3. In view of the above position the word "evidence" in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial.

Question (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?

Answer 117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question (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?

Answer 117.5. Though under Section 319(4)(b) CrPC 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 CrPC would be the same as for framing a charge [Ed. : The conclusion of law as stated in para 106, p. 138c-d, may be compared: "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". See also especially in para 100 at p. 136f-g.] . 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.

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

Answer 117.6. 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 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh."

7. In view of the above, the court has looked into the impugned order and finds that the learned court has found that there are materials against the petitioners in the evidence of P.Ws. 2, 3, 6, 8 and 9 and thereafter he has been pleased to call upon the petitioners to face the trial.

8. Section 319 Cr.P.C is discretionary and an extra-ordinary power to the court and it is required to be exercised sparingly as has been held by the Hon'ble Supreme Court. This aspect of the matter has also been considered by the Hon'ble Supreme Court in the case of Hardeep Singh (Supra), as has been relied by the learned senior counsel appearing for the petitioners.

9. In the case of Hardeep Singh (supra), which has also been relied by the learned counsel for the petitioner, the Hon'ble Supreme Court held 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 court is required to examine the version of the prosecution witnesses in light of this observation of the Hon'ble Supreme Court and if that requirement is fulfilled, the learned court is competent to pass an order under Section 319 Cr.P.C. In the impugned order even the paragraphs have been disclosed of the P.Ws. and thereafter the learned court has been pleased to call upon the petitioners to face the trial.

10. It is settled proposition of law that the trial Judge is not expected to allow mere evidence which has been placed on record and what has been stated by the witnesses. The Cr.P.C. and the Evidence Act confers vast and wide powers to the trial court to elicit all necessary materials by playing an active role in the evidence collecting process. In the criminal case, the court is required to find out the truth. Considering the evidences of the prosecution witnesses, the learned court has called upon the petitioner to face the trial under Section 319 Cr.P.C.

11. It is also well settled proposition of law that even a person is not named in the charge-sheet and has been made an accused, the trial court has adequate power to summon such named person as well. A reference may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Sunil Bharti Mittal v. CBI, reported in (2015) 4 SCC 609. Paragraph 50 of the said judgment is quoted herein below:-

"50. Person who has not joined as accused in the chargesheet can be summoned at the stage of taking cognizance under Section 190 of the Code. There is no question of applicability of Section 319 of the Code at this stage (see SWIL Ltd. v. State of Delhi). It is also trite that even if a person is not named as an accused by the police in the final report submitted, the court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (see Union of India v. Prakash P. Hinduja). Thus, the Magistrate is empowered to issue process against some other person,

who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer."

12. In the several judgments, it has already been held that if Section 319 Cr.P.C. is applied, even the de novo trial can be made.

13. As a cumulative effect of the above facts, there is no illegality in the impugned order. Accordingly, this petition stands dismissed.

14. It is made clear that this order has been passed considering the parameters of Section 319 Cr.P.C. and the case of the petitioners shall not be prejudiced and the trial court shall proceed in the matter in accordance with law.

(Sanjay Kumar Dwivedi, J.) Amitesh/-

[A.F.R.]