It is not obligatory on part of trial court to permit cross-examination of PW-1 before summoning accused under Section 319 Cr.P.C. - No illegality in impugned order

ALLAHABAD HIGH COURT

Before :- Mrs. Ranjana Pandya, J.
Criminal Revision No. 1558 of 2007. D/d. 14.10.2014.

Ram Prakash Singh and Another - Revisionists
Versus
State of U.P. and Another - Opposite Party

For the Revisionists :- Abhishek Srivastava, Abhishek Tripathi, Akhilesh Srivastava, B.K. Tripathi, Advocates.
For the Opposite Party :- Govt. Advocate, P.S. Chauhan, Rajesh Yadav, Advocates.
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Cases Referred :
Babubhai Bhimabhai Bokhiria v. State of Gujarat, 2014 (2) JIC 523 (SC).
Brindaban Das v. State of West Bengal, 2009 (66) ACC 273.
Dharam Pal v. State of Haryana, 2013 Crl.L.J. 3900.
Harbhajan Singh v. State of Punjab, 2009 (5) Supreme Today page 779.
Hardeep Singh v. State of Punjab, 2014 (1) JIC 539 (SC).
Michale Machado v. Central Bureau of Investigation, 2000 (3) SCC 262.
Mohd. Shafi v. Mohd. Rafiq, 2007 (58) ACC 254.
Ram Pal Singh v. State of U.P., 2009 (1) Supreme Today page 649.
Ram Singh v. Ram Niwas, 2009 (65) ACC 971.
Sarabjit Singh v. State of Punjab, 2009 (66) ACC 32.
State of U.P. v. Shakti Singh, S.T. No. 01/2007.

Allahabad High Court Judgments

JUDGMENT
Mrs. Ranjana Pandya, J. - This criminal revision has been preferred against the order dated 17.05.2007 passed by Additional District and Sessions Judge (F.T.C. Court No. 2), District Maharajganj summoning the revisionists under Section 319 Cr.P.C. in S.T. No. 01/2007 (State of U.P. v. Shakti Singh & others), case crime no. 523 of 2006, under Sections 147, 148, 149, 302, 504 and 506 I.P.C., Police Station Pharenda, District Maharajganj.
2. Brief facts are that a first information report was lodged by the complainant Krishna Kumar Singh against accused Ram Prakash Singh, Shivendra Singh, Shakti Singh, Ranjeet Singh, Ram Awadh Yadav, and Kaushal @ Budhu Singh stating that the complainant was the resident of Parasia Buzurg, Police Station Pharenda, District Maharajganj. On 25.07.2006 at about 05:00 P.M., the complainant accompanied by his nephew Dhananjay Singh and Pradeep Singh were going to2 Loharpurva from his village. Suddenly one maruti car came from the front and went towards his village. After covering some distance the car turned back and was brought by the side of the complainant and others. Ram Prakash Singh was sitting beside the driver. The car was being driven by Shivendra Singh; Shakti Singh, Ranjeet Singh and Ram Awadh Yadav were sitting on the rear seat. As soon as the car stopped, Shakti Singh, Ranjeet Singh, Ram Awadh armed with weapons alighted from the car. Suddenly Kaushal Singh came from behind on a motorcycle. Ram Prakash Singh aforesaid exhorted. At this Ranjeet Singh, Ram Awadh Singh Yadav and Kaushal Singh caught hold of Dhananjay Singh and Shakti Singh fired point blank at Dhananjay Singh on the left side. Dhananjay Singh died on the spot. Ram Prakash Singh with intent to kill the complainant and Pramod Singh again exhorted but the complainant and Pramod ran towards the village. On hearing hue and cry Yaad Ali, Iqbal, Udaibhan Singh and two other villagers came running due to which the accused fled away on the maruti car and the motorcycle towards Maharajganj Farenda main highway.
3. After the report was lodged, investigation started. After the investigation, the I.O. submitted charge sheet against the accused Shakti Singh, 3 Ranjeet Singh, Shivendra Singh and Ram Awadh. Charge sheet were not submitted against accused Ram Prakash and Kaushal Kumar Singh. After the case was committed, charges were framed against accused persons and evidence of the complainant PW-1 Krishna Kumar Singh commenced in court.
4. Perusal of the file shows that after examination-in-chief of this witness namely complainant Krishna Kumar was concluded, the prosecution moved an application under Section 319 Cr.P.C.. While hearing this application under Section 319 Cr.P.C. on 17.05.2007, the trial court allowed the application under Section 319 Cr.P.C. and summoned the accused Ram Prakash Singh and Kaushal Singh @ Buddhu.
5. Feeling aggrieved, the High Court was approached and Criminal Revision No. 1558/2007 was filed.
6. This revision was decided on 1st June, 2007 by the High Court against which Criminal Appeal No. 1294 of 2007 was preferred through SLP No. 3807 of 2007 on which the Hon'ble Apex Court while setting aside the judgment of the High Court remitted the matter to the High Court for consideration on merits.
7. The matter was remitted back to the High Court who again decided this revision on4 11.01.2013. Again the revisionists preferred a SLP No. 5233 of 2013 along with Criminal Misc. Petition No. 15708 of 2013. In SLP (Criminal) No. 5233 of 2013, in which the Hon'ble Apex Court set aside the order dated 11.01.2013 passed by the High Court and remitted the matter for fresh consideration. Thus, this present revision was heard.
8. I have heard Sri V.P. Srivastava, Senior Advocate, assisted by Sri B.K. Tripathi, counsel for the revisionists and Sri P.S. Chauhan, counsel for the opposite party no. 2.
9. Learned counsel for the revisionist has argued that on the basis of evidence on record, learned lower court could not have summoned the accused under Section 319 Cr.P.C.
10. Perusal of the record shows that the complainant Krishna Kumar Singh was examined who has specifically said in his statement that Ram Prakash Singh exhorted due to which Ranjeet Singh, Ram Prakash and Kaushal Singh @ Buddhu caught hold of Dhananjay Singh and Shakti Singh fired on Dhananjay Singh. Ram Prakash again exhorted but the witnesses came on the spot and all the accused fled away. This statement is in corroboration with the first information report lodged by the complainant.5
11. Counsel for the revisionists has placed reliance upon 2007 (58) ACC 254 (Mohd. Shafi v. Mohd. Rafiq and another) in which it has been held that : "before the court exercises, its jurisdiction in terms of Section 319 Cr.P.C., it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted".
12. Further counsel for the accused revisionists has placed reliance on 2009 (66) ACC 273 (Brindaban Das and others v. State of West Bengal) in which it has been held that : "the exercise and powers under Section 319 Cr.P.C. should be exercised with great care and perspicacity."
13. Hon'ble Apex Court in 2009 (65) ACC 971 (Ram Singh and others v. Ram Niwas and another) has laid down that : "Mere existence of prima facie case not sufficient to exercise jurisdiction under Section 319 Cr.P.C. and the court must arrive at satisfaction that evidence adduced on behalf of prosecution if unrebutted would lead to conviction of the person sought to be added as accused."
14. Counsel for the revisionists has vehemently argued that the power conferred under Section 319 Cr.P.C. should be used very sparingly and the6 court must be satisfied that there was strong suspicion. An extraordinary case has to made out and sufficient and cogent reasons are required to be assigned by the court as has been laid down in 2009 (66) ACC 32, (Sarabjit Singh and another v. State of Punjab and another).
15. Counsel for the revisionists has also argued that mere suspicion of involvement of the accused for the offence is not enough as has been laid down in 2000 (3) SCC 262, (Michale Machado and Anr. v. Central Bureau of Investigation and Anr.).
16. Counsel for the revisionists has also contended that the role of the present revisionists is only that of instigation and they could not have been summoned under Section 319 Cr.P.C.
17. In reply counsel for the complainant has argued that PW-1 Krishna Kumar Singh while corroborating the first information report has given a vivid account of the prosecution case and has specifically stated the role of each accused and thus, the summoning order under Section 319 Cr.P.C. needs no interference. Counsel for the complainant has placed reliance upon 2009 (1) Supreme Today page 649 (Ram Pal Singh & Ors. v. State of U.P. & Anr.) in which it has been held that : "All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused."
18. The Hon'ble Apex Court has laid down that : "PW-1 in his evidence, had named applicants as persons who were involved in incident causing death of deceased and injuries to another - Despite that trial Court, on two separate occasions, rejected prayer made by Respondent No. 2 for summoning appellants under Section 319 Cr.P.C.-High Court, after considering evidence of PW-1, thought it necessary for appellants to be summoned - No error committed by High Court in directing that appellants be summoned to stand trial along with co-accused, in view of evidence of PW-1 during the trial itself."
19. Counsel for the complainant has further placed reliance upon 2009 (5) Supreme Today page 779 (Harbhajan Singh and Anr. v. State of Punjab & Anr.) in which the Hon'ble Apex Court has laid down that : "It may be true that appellants were not charge-sheeted but it is now well settled, that only because no charge-sheet had been submitted against certain persons, same by itself, would not be a sufficient ground to the court at a later stage, namely, upon consideration of the evidence adduced before it by the prosecution to decline to exercise its jurisdiction to add other persons as accused for trying him for offences which appear to it to have been committed by them."
20. Counsel for the revisionists has placed reliance upon 2014 (2) JIC 523 (SC) (Babubhai Bhimabhai Bokhiria & Anr. v. State of Gujarat & Ors.) in which Hon'ble Apex Court has laid down as under:-
    "Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher."
21. Similarly, counsel for the revisionists has further relied upon 2013 Crl.L.J. 3900 (Dharam Pal & Ors. v. State of Haryana & Anr.) in which it has been held that : "the Sessions Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record."
22. Section 319 Cr.P.C. reads as under:-
    "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 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 he10 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 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."
23. Perusal of the record shows that only examination-in-chief of the complainant PW-1 Krishna Kumar was recorded and before the accused persons could cross-examine the witness an application under Section 319 Cr.P.C. was moved. Whether the revisionists could be summoned only on the basis of examination-in-chief or not is a matter which has been set at rest by the Hon'ble Apex Court in Hardeep Singh v. State of Punjab & Ors., 2014 (1) JIC 539 (SC) in which the Hon'ble Apex Court has laid down as under:-
    "Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used11 as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.
    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 Cr.P.C.?
    This has to be understood in the context that Section 319 Cr.P.C. empowers only the court to proceed against such person. The word "court" in our hierarchy of criminal courts has been defined under Section 6 Cr.P.C., which includes the Courts of Sessions, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Sessions is defined in Section 9 Cr.P.C. and the Courts of Judicial Magistrates has been defined under Section 11 thereof. The Courts of Metropolitan Magistrates has been defined under Section 16 Cr.P.C. The courts which can try offences committed under the Indian Penal Code, 1860 or any offence under any other law, have been specified under Section 26 Cr.P.C. read with First Schedule. The explanatory note (2) under the heading of "Classification of Offences" under the First Schedule specifies the expression 'Magistrate of first class' and 'any magistrate' to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates.
    Section 319 Cr.P.C. 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 chargesheet filed under Section 173 Cr.P.C. 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."
24. It has further been laid down that :
    "Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. 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."
25. Thus, it was not obligatory on the part of the trial court to permit cross-examination of PW-1 before summoning the accused under Section 319 Cr.P.C.
26. The order passed by the trial court is well reasoned order who has discussed all the law on the point. The law laid down by the Hon'ble Apex Court in Hardeep Singh v. State of Punjab & Ors. (Supra) is that cross-examination of the witness before summoning the accused persons under Section 319 Cr.P.C. is not mandatory. Thus, the impugned order dated 17.05.2007 passed by the trial court does not suffer from any illegality, irregularity or impropriety and the revision is liable to be dismissed.
27. Accordingly the revision is dismissed.
Revision Dismissed.

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