Allahabad High Court
Rajesh Kumar Singh vs State Of U.P. & Others on 4 April, 2012
Author: Kalimullah Khan
Bench: Kalimullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Final AFR Court No. - 45 Case :- CRIMINAL REVISION No. - 4982 of 2011 Petitioner :- Rajesh Kumar Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- Vinod Singh Respondent Counsel :- Govt. Advocate,A.K.Awashthi,Manish Tiwari Hon'ble Kalimullah Khan,J.
1. This criminal revision has been preferred against the order dated 20.8.2011, passed by learned Additional Sessions Judge (Court No.3), Varanasi, in S.T. No.448 of 2006, State Vs. Kharag Bahadur Singh, under Sections 304-B, 498-A IPC and 3/4 D.P. Act, Police Station K, District Varanasi, whereby learned Sessions Judge has rejected the application made by prosecution under Section 319 Cr.P.C. to summon additional accused, respondent nos. 2 to 5.
2. Legality, correctness and propriety of the impugned order has been challenged in this revision.
3. Heard learned counsel for the revisionist, learned A.G.A., learned counsel for respondent nos. 2 to 5 and perused the record.
4. Sessions trial No.448 of 2006, State Vs. Kharag Bahadur Singh, under Section 302 IPC was pending before learned trial court, wherein prosecution witnesses were examined. During the course of trial, alternate charge against the accused was framed, under Sections 304-B, 498-A IPC and 3/4 D.P. Act. On the basis of the evidence of complainant/revisionist, Rajesh Kumar Singh P.W. 1 (brother of the deceased), Kalpnath Singh P.W.3 (father of the deceased) and Smt. Amrapali Singh P.W. 4 (mother of the deceased) an application 141 kha was made by complainant under Section 319 Cr.P.C. with a prayer to summon respondents, Kailash Singh, Smt. Parvati Singh (in-laws of the deceased), Smt. Suman (sister-in-law of the deceased) and Km. Pooja , sister in law of Smt. Suman as additional accused. Objection 142 kha was filed on the ground that prosecution has already examined almost all the witnesses. The evidence of the aforesaid prosecution witnesses are hearsay, which has been recorded after four years of the incident. Almost 13 prosecution witnesses have been examined. Accused, Kharag Bahadur Singh, is already behind the bar for about four years. Kalpnath Singh, father of the deceased, Sanjay Kumar Singh and Rajesh Kumar Singh, complainant, who are brothers of the deceased, were present there at the time of inquest of the deceased, but they did not utter even a single word that it was a case of dowry death or the main accused, Kharag Bahadur Singh or proposed accused has ever tortured or practiced cruelty upon the deceased in connection with demand of dowry. Initially, the FIR was registered under Section 302 IPC on the basis of report lodged by the Sub Inspector, a police personnel, against unknown person. During the course of investigation, it transpired that Kharag Bahadur Singh, the husband of the deceased, was her murderer, therefore, the case proceeded against him under Section 302 IPC. The incident took place in between the night of 6/7-4-2006. The report was lodged on the same day, but the theory of dowry death was brought on 13.4.2006, therefore, the application was made under Section 156 (3) Cr.P.C. against Kharag Bahadur Singh and proposed accused. Against objection 142 kha, another application 164 kha was made by the complainant, Rajesh Kumar Singh, wherein, he reiterated the same thing, which was contained in his earlier application 141 kha. Application 141 kha was rejected by the trial court, vide order dated 21.4.2011. This said order was challenged before this Court, who set it aside with a direction to the trial court to decide application 141 kha afresh. The trial court, therefore, decided the said application made under Section 319 Cr.P.C. afresh, vide impugned order dated 20.8.2011, whereby he has rejected the same and refused to summon respondent nos. 2 to 5.
5. Learned trial court after appraisal of the evidence opined that he was not satisfied from the oral and documentary evidence adduced on record that proposed accused are likely to be convicted in this case and, therefore, the evidence available on record against them are below standard to exercise his jurisdiction vested under Section319 Cr.P.C. and there is no substance in the contention of prosecution that simply because accused, Kharag Bahadur Singh already charged for an offence punishable under Section 302 IPC has subsequently been alternatively charged under Sections 304-B, 498-A IPC and 3/4 D.P. Act, proposed accused are also liable to be summoned and charged accordingly. Likewise, he refused to accept the contention of prosecution that direction of this Court to decide application 141 kha afresh means to allow the same and he rejected applications 141 kha and 164 kha made under Section 319 Cr.P.C.
6. Feeling aggrieved, this criminal revision has been preferred.
7. Learned counsel for the revisionist has argued that once the earlier order dated 21.4.2011, passed by the trial court was set aside by the High Court with a direction to decide the application under Section 319 Cr.P.C. afresh, the trial court was left with no option except to allow application 141 kha made under Section 319 Cr.P.C. He further argued that accused, Kharag Bahadur Singh, who was charged under Section 302 IPC has now alternatively been charged under Sections 304-B, 498-A IPC and 3/4 D.P. Act. The evidence, on the basis of which, alternate charges have been framed or alike against all the accused including the proposed accused respondent nos.2 to 5, therefore, they must be summoned under Section 319 Cr.P.C.
8. On the other hand, learned counsel for the accused has argued that prosecution has already examined 13 prosecution witnesses. The trial is at the verge of its conclusion. Accused, Kharag Bahadur Singh, facing trial is behind the bar for about four years. All the prosecution witnesses on facts including complainant, his father and brother were present at the time of inquest on the day of incident, but they did not whisper anything about the demand of dowry or torturing to the deceased, but after about a week, they attempted to falsely implicate accused, Kharag Bahadur Singh and proposed accused persons in a case of dowry death by making a false accusation that in connection with demand of dowry of Rs.5,00,000/-, Kharag Bahadur Singh, the husband of the bride and his relations, tortured and practiced cruelty upon her, soon before her death, who received unnatural death by gun shot injury in the house of her in-laws. Complainant (P.W.1) made application under Section 156 (3) Cr.P.C, which was allowed, but since a case under Section 302 IPC was already pending investigation and no evidence of demand of dowry and torturing to the bride, deceased, soon before her death was found, Investigating Officer submitted charge sheet against Kharag Bahadur Singh alone under Section 302 IPC. He further argued that there is no evidence on record to probabalizse the conviction of the proposed accused, under Sections 304-B, 498-A IPC and 3/4 D.P. Act.
I have applied my judicial mind on the facts, circumstances, evidence and legal aspects involved in this matter. Section 319 Cr.P.C. reads as under :-
"319 Cr.P.C. 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 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 had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.
The ambit and scope of power of the Court under Section 319 Cr.P.C. has come up for consideration before Hon'ble Supreme Court on more than one occasion.
In Michael Machado and Another v. Central Bureau of Investigation and Another, Hon'ble Apex Court on extensive consideration of the provision contained in Section 319 stated (at pages 267-268) as follows :-
"11.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.
12. 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 other 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. 3 (2000) 3 SCC 262.
14.The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action"
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 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.
10. In view of the aforesaid legal position, the order of learned trial court does not suffer from any illegality, incorrectness or impropriety. Learned trial court has applied his judicial mind in the light of the legal position of his power vested under Section 319 Cr.P.C. and has given clear finding that the evidence of dowry death against the proposed accused besides being belated having no convincing reason is below standard. There is no additional evidence on record to satisfy the court that proposed accused appears to be guilty for dowry death or cruelty to the deceased for or in connection with demand of dowry. The learned trial court is absolutely right that the setting aside of the order dated 21.4.2011, earlier passed by the trial court with a direction to decide application already made under Section 319 Cr.P.C. does not mean that the said application is to be allowed by the trial court ignoring all the settled principles of law on the issue. Similarly, he has given a correct finding on the point that merely framing of alternate charge under Sections 304-B and 498-A IPC and 3/4 D.P. Act against accused, Kharag Bahadur Singh, who was already facing trial under Section 302 IPC is enough to summon the proposed accused to face the trial.
11. The extraordinary powers of Section 319 Cr.P.C. should be used cautiously especially when the trial has proceeded to an advanced stage. An accused under Section 319 Cr.P.C. should be summoned only when it is evident that conviction is probable.
Merely for the sake of dragging an accused to face the trial and undergo the ebb and flow of a tedious trial procedure is not the true spirit of legal system.
Power under Section 319 Cr.P.C. cannot be exercised so as to conduct a fishing inquiry. It is an extra ordinary power conferred on the court and should be used very sparingly and only if compelling reasons exist for taking congnizance against the other person against whom action has not been taken. Before summoning additional accused under this section court should be fully satisfied that a case for taking cognizance against such accused has been made out on the additional evidence led before it.
Revision is devoid of merit and deserves dismissal. It stands dismissed, accordingly.
Order Date :- 4.4.2012 m.a.