Rajasthan High Court - Jodhpur

Smt Leelawati @ Leela Devi vs State And Ors on 9 September, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 32/2016

Smt Leelawati @ Leela Devi

----Petitioner Versus State And Ors.

                                                                ----Respondent


For Petitioner(s)        :     Mr. Hemant Jain & Mr. Rajesh Saharan
For Respondent(s)        :     Mr. Gaurav Singh PP
                               Mr. V.K. Bhadu
                               Mr. Anil Gupta

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 07/09/2022 Pronounced 09/09/2022

1. This criminal revision petition under Section 397/401 Cr.P.C.

has been preferred claiming the following reliefs:

"It is, therefore, most respectfully prayed that this Revision Petition may kindly be allowed and the order impugned dated 16.10.2015 (Ann.1) passed by the learned Special Judge (Electricity Act Cases) (Addl. Sessions Judge No.1), Sri Ganganagar, in Sessions Case No.1/2007 may kindly be quashed and set aside in the interest of justice."

2. The genesis of the dispute lies in the complaint submitted by

the Jodhpur Vidhyut Vitran Nigam Limited against accused Jagdish

s/o Lal Chand and Raju s/o Kishan under Sections 135 and 151 of

the Indian Electricity Act, 2003 (hereinafter referred to as 'Act of

2003'), before the learned court below, alleging therein that while

inspecting House No.112, Shiv Colony, on 24.06.2004 at about

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6:20 p.m., it was found that the said accused persons were

engaged in the theft of electricity; whereupon, cognizance was

taken by the learned court below and the proceedings accordingly

commenced.

2.1 During the course of the proceedings before the learned

court below, accused-Jagdish filed an application under Section

319 Cr.P.C. with the prayer that on the relevant date, he was

neither the owner of the house in question, nor the same was in

his possession. It was also alleged by accused-Jagdish that in

regard to ownership of the house in question, on 02.03.1999,

Smt. Leelawati @ Leela Devi (petitioner herein) had instituted a

civil suit against one Lal Chand s/o Surajpuri before the learned

Additional Civil Judge (Junior Division) No.1, Sriganganagar for

injunction; in the said suit, the petitioner herein had claimed that

she was the lawful owner of the house in question, but the said Lal

Chand was in an unauthorized possession of the house, and thus,

injunction was prayed by her in the suit; the said suit was stated

to be pending on the date of inspection in question i.e.

24.06.2004.

2.2 The said application under Section 319 Cr.P.C. was allowed

by the learned court below vide the impugned order dated

16.10.2015, while taking cognizance against the petitioner herein

under Section 135 of the Act of 2003, while ordering issuance of a

bailable warrant in a sum of Rs.500/- against her.

3. Learned counsel for the petitioner submitted that the present

petitioner was not present on the spot of inspection on the

relevant date, and neither her signatures were taken on the

documents alleged to have been prepared on the spot, nor she

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was given any notice in connection with the said theft of

electricity.

3.1 Learned counsel further submitted that the learned court

below, merely taking into account the factum of institution of the

aforementioned civil suit in regard to the house in question, took

cognizance against the present petitioner, vide the impugned

order dated 16.10.2015, for the offence under Section 135 of the

Act of 2003.

3.2 Learned counsel also submitted that as per the settled

proposition of law, civil proceedings cannot be read in evidence in

criminal proceeding, more particularly, when the civil suit

instituted by the petitioner has been dismissed by the concerned

civil court, and therefore, on that count alone, the impugned order

deserves to be quashed and set aside.

3.3 Learned counsel further submitted that the impugned order

passed by the learned Court below deserves to be quashed and

set aside, especially since the order is not reasoned nor is a

speaking order, failing to have duly considered the statutory intent

of the powers conferred upon the competent Court to array a

person as accused, in an ongoing trial, under Section 319 Cr.P.C.

3.4 Learned counsel, while harping upon the fact that the

petitioner herein is in no way connected with the alleged theft in

question, submitted that the learned court below, without taking

into consideration the overall facts and circumstances of the case,

has passed the impugned order of cognizance, and thus, the same

is not sustainable in the eye of law.

4. On the other hand, learned Public Prosecutor as well as

learned counsel for the other respondents, while opposing the

aforesaid submissions made on behalf of the petitioner, submitted

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that a bare perusal of the impugned order and the factum of

institution of the civil suit by the petitioner herein clearly proves

the fact that though the said civil suit was dismissed by the

learned civil court, but institution thereof is a clear admission on

the part of the present petitioner, in regard to her ownership of

the house in question.

4.1 They thus, submitted that the learned trial court has rightly

passed the impugned order after taking into due consideration the

overall facts and circumstances of the case and the evidence

placed on record before it.

4.2. Learned counsel for the complainant submitted that the

learned Court below has rightly allowed the application under

Section 319 Cr.P.C., as preferred by the present-respondent no. 3,

in the ongoing trial in the Session Case bearing No. 1/2007, while

exercising its powers under Section 319 Cr.P.C. and therefore, the

impugned order does not merit interference by this Court.

5. Heard learned counsel for the parties as well as perused the

record of the case.

6. This Court observes that the issue that arises in the present

case is whether the competent Court, while exercising its powers

under Section 319 Cr.P.C. and allowing the application so preferred

by the present-respondent no. 3 under the said provision of law,

ought to have considered the evidence at a higher standard than

that required at the stage of framing of charge or, of taking

cognizance.

6.1 Section 319 Cr.P.C., for the sake of brevity, is reproduced as

hereunder:-

319. Power to proceed against other persons appearing to be guilty of offence.--

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(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 together 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 subsection (1), then--

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

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

7. This Court further observes that the position of law regarding

the issue herein has already been settled, through the judgments

of the Hon'ble Apex Court rendered in the cases of Sarabjit

Singh and Ors. Vs. State of Punjab and Ors. (2009) 16 SCC

46, Hardeep Singh and Ors. Vs. State of Punjab and Ors.

(2014) 3 SCC 92, Periyasami and Ors. Vs. S. Nallasamy

(2019) 4 SCC 341, Sagar Vs. State of U.P. and Ors. (2022) 6

SCC 389 and Sartaj Singh Vs. State of Haryana & Ors.

(2021) 5 SCC 337.

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7.1. In Sarabjit Singh (supra), it was held as follows:-

"The extent of the power of a Sessions Judge to summon persons other than the accused to stand trial in a pending case came up for consideration before this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi 1983 CriLJ 159. Therein, this Court while holding that the provision confers a discretionary jurisdiction on the court added "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.

Interpretation of the aforementioned provision, in the light of the said decision, came up for consideration before various courts from time to time. We may take note of some of them.

This Court in Lok Pal v. Nihal Singh 2006CriLJ2366 observed:

...The court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors, including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.

In Mohd. Shafi v. Mohd. Rafiq and Anr. 2007CriLJ3198 , this Court held:

7. Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appears to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.

The decision of this Court in Mohd. Shafi (supra), however, has been explained in Lal Suraj @ Suraj Singh and Anr. v. State of Jharkhand (2009)2SCC696 , stating: ...The

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principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction. We have noticed hereinbefore that Mohd. Shafi (supra) has been explained in Lal Suraj (supra) holding that a power under Section 319 of the Code can be exercised only on the basis of fresh evidence brought before it and not on the basis of the materials which had been collected during investigation particularly when a final form was submitted and the same had been accepted by the Magistrate concerned. There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi (supra) is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken.

The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question' Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.

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We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. (2007) 4 SCC 773 , this Court opined: ...

Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court...

An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. 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

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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 exercise of jurisdiction, would not be satisfied.

We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to the learned Sessions Judge for consideration of the matter afresh."

7.2. In Hardeep Singh (supra), it was observed as under:

"In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Code of Criminal Procedure.

Power under Section 319 Code of Criminal Procedure is a discretionary and an extra-ordinary 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

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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.

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 Code of Criminal Procedure In Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure to form any opinion as to the guilt of the accused."

7.3. In Periyasami (supra), it was held thus :

"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.

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Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the Complainant is a husband and has initiated criminal proceedings against family of his in-laws and when their names or other identity were not disclosed at the first opportunity."

7.4. In Sagar (supra), it was held as under :

"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."

8. This Court, therefore, observes that the position of law is

settled and is clear as crystal, and at the cost of repetition

reiterates the same being that the power under Section 319

Cr.P.C. is a discretionary and extraordinary power, one which must

not be exercised in a casual and cavalier manner, but only when

there is strong and cogent evidence, and an accused may be so

summoned if there is more than a prima facie case as is required

at the stage of framing of charge but less than the satisfaction

required at the time of conclusion of trial, convicting the accused.

Such powers enjoined upon the competent Courts under Section

319 Cr.P.C. are to be exercised sparingly and after duly

appreciating the factual matrix of each case, and with regard to