Vipin Kumar Jain vs State Of Uttarakhand And Others
2023 Latest Caselaw 2074 UK

     HIGH COURT OF UTTARAKHAND
            AT NAINITAL

     Criminal Misc. Application No.1570 of 2023
                 (U/s C482 Cr.P.C.)

Vipin Kumar Jain                                  ... Applicant

                               Vs.

State of Uttarakhand and Others                  ... Respondents


Advocate:   Mr. Himanshu Pal, learned counsel for the applicant.
            Mr. V.K. Gemini, learned Deputy Advocate General for the
            State.


Hon'ble Sharad Kumar Sharma, J.

The applicant to the C482 Application puts a challenge to the interim orders, the first being that of 13.08.2019 as it was passed by the Court of Additional Chief Judicial Magistrate in Criminal Case No.237 of 2015, "State Vs. Jaspal Singh and Others" and consequently, it's affirmation by the judgment of 11.07.2023 as it was passed by the Court of learned 1st Additional District Judge, Haridwar in Criminal Revision No.640 of 2019, "Vipin Kumar Jain Vs. State of Uttarakhand & Others".

2. The consequential effect of the two orders would be, that the application as preferred under Section 319 of the Cr.P.C. by respondent no.3 has been allowed and, as a consequence thereto, the present applicant has been summoned to be tried in

Criminal Case No.237 of 2015, "State Vs. Jaspal and Others".

3. While putting a challenge to the aforesaid two orders, the learned counsel for the applicant has summarized his first argument from the following perspective - that the application under Section 319 of the Cr.P.C., at the behest of respondent no.3, would not be maintainable, because he is not a party to the proceedings and as such has got no locus standi to file the same.

4. To answer the said argument, this Court is of the view that, if the provision as contained under Section 319 of the Cr.P.C. is taken into consideration, it does not speak about the source of filing of an application. The said provision under Section 319 of the Cr.P.C. has been interpreted by the Hon'ble Apex Court in the judgment, which has been relied upon by the learned counsel for the applicant himself as reported in (2012) 1 SCC (Cri) 867, Sarojben Ashwinkumar Shah and Others Vs. State of Gujarat and Another, that the Court itself if requires can exercise its powers under Section 319 of the Cr.P.C. suo moto or an application of 'someone'.

5. The reference of the word 'someone' under Sub-clause 1 of paragraph no.16 of the said judgment, it does not specifies, clarifies, categorises or identifies the person on whose

behest, the application under Section 319 of the Cr.P.C. could be preferred, for summoning of an accused person, to be tried for the offences. Paragraph no.16 of the aforesaid judgment is extracted hereunder:-

"16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this:

(i) The court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.

(iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word "evidence" in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The court must also be satisfied that circumstances justify and warrant

that the other person be tried with the already arraigned accused.

(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

(vii) Regard must also be had by the court to the constraints imposed in Section 319(4) that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion."

6. In relation to the argument as it has been extended by the learned counsel for the applicant, the learned Government Advocate has submitted that this contention of the applicant's counsel about the non-sustainability of the application at the behest of respondent no.3, would not be tenable, for the reason being, that his wife i.e. respondent no.4 - Neelam Bakshi was the principal purchaser, who was also a beneficiary of the transaction, coupled with the fact, that respondent no.2 himself had appeared as a witness before the Investigating Officer, who had submitted the Chargesheet No.268 of 2014 on 23.12.2014.

7. Thus, in view of the aforesaid dictum of the Hon'ble Apex Court, and the provision itself, it cannot be said that respondent no.3 was alien to the proceedings, whose application under Section 319 of the Cr.P.C. would not have been maintainable. Thus, this question is answered against the applicant for the reasons given above.

8. The second argument as placed is with regards to the probability of an applicant to be involved in the commission of offence and, particularly, that too, in the context of the time period, since when his initial involvement was reflected, as per the pleadings raised by the learned counsel for the applicant in the C482 Application itself.

9. It is an admitted case that the applicant was a property dealer and, on 16.10.2006, when the applicant had acted as a mediator, for introducing Jaspal Singh and Pyola Devi, who were owners of the property i.e. plot no.13, which was allocated with it as per the rehabilitation policy of the Tehri Hydro Dam Project, to respondent no.3 and 4, had ventured for entering into a sale transaction of the property. Thus, the knowledge of the sale transaction, from its genesis ever since 2006, was there to the applicant and rather it would not be inappropriate to say that, in fact, he was the fulcrum of the entire controversy as it has been complained of in the FIR.

10. The third argument as raised by the learned counsel for the applicant is that, for the purpose of invoking the powers under Section 319 of the Cr.P.C., the Court has had to apply its mind and assign reasons to justify the summoning of an accused person under Section 319 of the Cr.P.C., particularly, in the context of the observations

made in sub-paragraph no. (iv) and (v) of paragraph no.16 of the judgment of the Hon'ble Apex Court in Sarojben Ashwinkumar Shah (Supra), as already referred to hereinabove.

11. The only caution, which has been provided therein to be adhered to, is that the Court's power is not changed by circumstances of a case that it cannot be exercised by the Courts for summoning of an accused, when the Court feels that, he could have been one of the necessary persons, who is necessarily required to be tried for an effective adjudication of the criminal proceedings.

12. But, the only precaution, which has been given therein, is to the effect that the Courts must be rationally and judiciously satisfied that a case for addition of a person as an accused is made out from the evidences or additional evidences led by the parties.

13. As regard to this aspect, first of all, since the very fact that the applicant was the husband of the purchaser of the property, who was the ultimate beneficiary, it cannot be said that the applicant was an alien to the proceedings and so would be the case, also because the present applicant cannot said to be an alien because he was named in the FIR but later on he was excluded by the Investigating Officer from being charge- sheeted.

14. So far as the aspect pertaining to assigning of the reasons would be after considering the additional evidence, if at all required, the said aspect could be specified and derived from the finding, which has been recorded by the impugned order of the Court of Additional Chief Judicial Magistrate, Haridwar, as given in the concluding part of the judgment, that for the purposes of justifying the necessity to summon the present applicant under Section 319 of the Cr.P.C., is on the ground that after the appreciation of evidence of PW1 Neelam Bakshi and PW2 Rajendra Kumar Bakshi i.e. applicant to the application under Section 319 of the Cr.P.C.

15. A prima facie allegation was shown to have been established as against the present applicant because he was the person, who introduced Jaspal Singh and Pyola Devi, for entering into a sale transaction on 16.10.2006 and, thereafter, Jaspal Singh and Pyola Devi subsequent to deed of convenience executed in favour of Chaccharlal.

16. It was observed by the learned trial Court, that in the sale deed, thus executed in favour of Chaccharlal, that there were two witnesses to the deed of convenience - Ram Dayal and Brajbhushan, who, in their respective statements as recorded before the trial Court had submitted that, prima facie, the present applicant is also engaged in the

commission of offence which has been complained of in the FIR, being FIR No.340 of 2014, as it was registered on 27.09.2014.

17. The argument as extended by the learned counsel for the applicant, that there happens to be no specific role which has been assigned to the present applicant, which could have at all necessitated allowing of an application under Section 319 of the Cr.P.C., is a fact which is not acceptable to this Court, owing to the observations and the finding as recorded by the witnesses to the deed of convenience made to Chachharlal, who has submitted, that the present applicant was actively engaged in conspiracy with regard to the sale transaction ever since 2006, when the land deal was executed in favour of Chachharlal. Hence, it cannot be said that the present applicant was an outsider to the proceedings and his presence was not at all required for an effective adjudication.

18. Even otherwise also, this Court is of the view, that when a suo moto power has been vested with the Court by the legislature, which could be exercised by it under Section 319 of the Cr.P.C. it basically intends that any person, who could be said to be directly or indirectly involved in the commission of offence for which the trial is being conducted, he could be summoned by the Court, either on an application by someone not being accused or in a suo moto manner. The basic

intention behind the provisions as contained under Section 319 of the Cr.P.C., is to ensure an effective adjudication of the trial, because, if at the advance stage of proceedings, when it reveals that there was a third person, who was working as a catalyst to the proceedings, it would be difficult to summon an accused under Section 319 of the Cr.P.C. and as such summoning of a person at the stage when the proceedings have been initiated and cognizance has been taken by the Court, too when before actually entering into a trial, would be rather facilitating an effective adjudication and thus, the observation made in paragraph no.16 of the judgment, the part of which has been already extracted above, it rather goes against the arguments which has been extended by the learned counsel for the applicant, pertaining to necessity of summoning the present applicant as an accused person for being tried for the offence in the Criminal Case No.640 of 2019.

19. The learned Government Advocate, in response to the argument extended by the learned counsel for the applicant, has made a reference to a judgment of the Hon'ble Apex Court, as reported in (2021) 5 SCC 337, Sartaj Singh Vs. State of Haryana, which was dealing with the vitalities, as to what appropriate stage and under what circumstances, a person could be summoned under Section 319 of the Cr.P.C. and the basic guidelines necessitating the summoning of an accused person

has been laid down by the Hon'ble Apex Court in paragraph no.13 of the said judgment, which is extracted hereunder:-

13. Heard the learned counsel for the respective parties at length. What is under challenge in the present appeals is the impugned judgment and order [Manjeet Singh v. State of Haryana, 2020 SCC OnLine P&H 2782] passed by the High Court allowing the revision applications filed by the private respondents herein and quashing and setting aside the order passed by the learned trial court summoning the accused in exercise of powers under Section 319 CrPC and to face the trial.

13.1. While considering the rival submissions, the law on the scope and ambit of Section 319 CrPC is required to be considered and for that few decisions of this Court are required to be referred to.

13.1.1. In Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , this Court had an occasion to consider in detail the scope and ambit of the powers of the Magistrate under Section 319 CrPC, the object and purpose of Section 319 CrPC, etc. It is observed in the said decision that the entire effort is not to allow the real perpetrator of an offence to get away unpunished. It is observed that this is also a part of fair trial and in order to achieve this very end the legislature thought of incorporating the provisions of Section 319 CrPC. It is further observed that for the empowerment of the courts to ensure that the criminal administration of justice works properly, the law has been appropriately 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. It is also observed that it is the duty of the court to find out the real truth and to ensure that the guilty does not go unpunished. In paras 8 and 9, this Court observed and held as under :

(Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC pp. 112-13) "8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also

gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovative methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished.

9. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 CrPC. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject-matter of trial."

13.1.2. In the said case, the following five questions fell for consideration before this Court : (Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC p. 112, para 6) "6. ... 6.1. (i) What is the stage at which power under Section 319 CrPC can be exercised?

6.2. (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?

6.3. (iii) 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?

6.4. (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?

6.5. (v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"

13.1.3. While considering the aforesaid questions, this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] observed and held as under : (SCC pp. 114-17, 123 & 125-26, paras 12-14, 17-19, 22, 47 & 53-56) "12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.

13. It is the duty of the court to do justice by punishing the real culprit. 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. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?

14. The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of CrPC and the judgments that have been relied on for the said purpose. The controversy centres around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.

***

17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge-sheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.

18. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.

19. 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. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.

***

22. In our opinion, 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. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159] .

***

47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time 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. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC

is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session.

***

53. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 CrPC cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159] . The dispute therein was resolved visualising a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 CrPC is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 CrPC confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it.

54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature 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 CrPC.

55. Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.

56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections 200,

201, 202, etc. CrPC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act, 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded."

20. The Hon'ble Apex Court in paragraph no.13, particularly, while making an observation in paragraph no.13.1.3, has drawn its logic from yet another judgment of the Hon'ble Apex Court as reported in (2014) 3 SCC 92, Hardeep Singh Vs. State of Punjab and while referring to paragraph no.12, 14, 17, 19, 22, 47, 53 to 56 of the judgment of Hardeep Singh's judgment (supra), the Hon'ble Apex Court has culled out its logic for summoning of an accused person under Section 319 of the

Cr.P.C., particularly, placing reliance on paragraph no.17 and 22 of the said judgment, which is extracted hereunder:-

"17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge-sheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence."

"22. In our opinion, 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. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159] ."

21. In fact, the judgments impugned are put to test, in the light of the observations made, in paragraph no.13.1.3 of judgment of the Sartaj Singh (supra), as relied by the Government Advocate.

22. The sole repository of justice for the purpose of exercising powers Under Section 319 of the Cr.P.C., is for the purpose of an effective adjudication, but only precaution is that there has had to be substantial material, which is required to be considered by the trial Court, to justify the

summoning under Section 319 of the Cr.P.C. and that too, is with an intention to ensure providing with a procedural affirmity to the criminal justice system, for delivering an effective judgment in relation to the allegations as levelled against an accused person.

23. For the aforesaid reasons, I do not find any merit in the C482 Application. Thus, the C482 Application is, accordingly, dismissed.

24. It is clarified that whatsoever observations, which has been made by this Court in this judgment, it is only for the purpose of meeting out the argument as extended by the learned counsel for the applicant, while putting challenge to the impugned orders. It may not be treated by the Court as to be any expression given by this Court on the merits of the set of allegations inter se between the parties to the proceedings of Criminal Case No.640 of 2019.

(Sharad Kumar Sharma, J.) 04.08.2023 Sukhbant/