Allahabad High Court
Anand Gopal Pradhan vs The State Of U.P on 30 January, 2013
Author: Visnhu Chandra Gupta
Bench: Visnhu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD,
LUCKNOW BENCH, LUCKNOW
Criminal Misc. Case No. 4407(482) of 2012
Anand Gopal Pradhan, aged about 30 years, S/O Sri Krishna Kumar,
R/O Tamoriya, Police Station - Nagram, District - Lucknow.
------Petitioner -: Versus:-
State of U.P.
.............. Opposite Party
Petitioner's Counsel :- Sri Ram Dev Yadav , Advocate
Respondents' Counsel :- Govt. Advocate,
Hon'ble Visnhu Chandra Gupta,J.
J U D G M E NT (1) Challenge in this petition under section 482 of Criminal Procedure Code (for short Cr.P.C.) is an order dated 4.8.2012 passed by Addl. Sessions Judge, Court No. 2, Lucknow in S.T. No. 1041 of 2011 (State of U.P. Vs. Thakur Prasad and Ors.) relating to case Crime No. 16 of 2011 under section 147, 148, 149, 302/34 I.P.C., P.S. Nagram, District- Lucknow.
(2) By the impugned order learned trial court after exercising the jurisdiction conferred under section 319 Cr.P.C. summon the petitioner Anand Gopal Pradhan to face the trial alongwith other co-accused of this case.
(3) The brief facts of this case are that on 5.2.2011 at 9.30 PM Manjit Singh was murdered when he was going to leave her daughter Laxmi to School. The First Information Report of this incident was lodged by Dilip Singh brother of the deceased , against the petitioner and six others. Role of petitioner Anand Gopal Pradhan was attributed that he armed with sword assaulted Manjit Singh. However, during the course of investigation the present petitioner was exonerated. The other accused were challaned by the Police. After taking cognizance of the offence, the Magistrate committed the case to the Court of Sessions and ultimately the Addl. Sessions Judge Court No. 2 passed the impugned order on the basis of application u/s 319 Cr.P.C. moved by prosecution.
(4) During the course of prosecution evidence the complainant Dilip Kumar Singh was examined as PW.1. Whose examination-in-chief was recorded but cross-examination was deferred. On the basis of uncrossed testimony of Dilip Kumar Singh the present petitioner Anand Gopal Pradhan was summoned under section 319 Cr.P.C. to face the trial alongwith other co-accused.
(5) I have heard learned counsel for the petitioner and learned A.G.A.
(6) Learned counsel for the petitioner assailed the impugned order mainly on two grounds.
Ground no. 1 that uncrossed testimony of PW.1 not came within the meaning of term'evidence' as used in Sec. 319 Cr.P.C. so the impugned order could not be allowed to sustain.
Ground No. 2that while exercising the jurisdiction under section 319 Cr.P.C. it would not be enough for a court that a prima facie case is made out to summon an accused to face the trial with the other co-accused. For exercising jurisdiction under section 319 Cr.P.C. the court must satisfy itself that on the basis of evidence adduced during trial that the person summoned under section 319 Cr.P.C. in all likelihooh would be convicted? The learned trial Court did not examine the matter from this angle. Hence, the impugned order is not sustainable.
(7) In support of his contention the learned counsel relied upon the following judgments:-
I. AIR 2000 SC 1127 (Michal Machado & Others Vs. CBI and Ors.), II. 2001( JIC) 757(SC), (Rakesh & Ors. Vs. State of Haryana), III. 2002(2) JIC 143(SC) (Shashikant Singh Vs. Tarkeshwar Singh & Ors.), IV. 2007(2) JIC 490(SC) (Mohd Shafi Vs. Mohd. Rafiq & Ors.), V. 2009 Cr.L.J. 4429(SC) (Harbhajan Singh & Ors. Vs. State of Punjab & Ors.), VI. 2011(3) JIC 565(All.)(LB) (Smt. Sidheshwari & Ors Vs. State of U.P. & Ors.), VII. 2010(2) JIC, 920 (All.) (Rajol & Ors. Vs. State of U.P.), VIII. 2009(3) JIC 522 (SC) (Sarbjit Singh & Anr. Vs. State of Punjab & Anr.), IX. 2012(1) JIC 205 (Allahabad) (Navneesh Vs. State of U.P.) (8) In the latest judgment of Apex Court reported in 2011 (13) SCC, 316, (Sarojben Ashwin Kumar Shah Vs. State of Gujrat and Another) the Supreme Court had an occasion to consider several authorities of the Apex Court and drawn certain guidelines for exercising the jurisdiction by courts u/s 319 Cr.P.C.. The relevant portion of the judgment in Para 16 is reproduced herein below:-
" 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 ond 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 chargesheet 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 addition 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 be 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."
(9) In view of the above the matter could be scanned on the basis of judgment rendered by the Apex Court in Sarojben Ashwin Kumar's case (Supra) and other judgments of Hon'ble Supreme Court.
(11) The challenge to the order impugned is that uncrossed testimony in the form of examination-in-chief would not fall within the meaning of 'evidence' as used in Sec 319 Cr.P.C. and the court on the basis of that evidence summoned the petitioner only on the ground that prima facie involvement of the petitioner is established in this case.
(12) The learned counsel for the petitioner invited the attention of this Court towards a judgment reported in 2007(2) JIC 490 (SC) (Mohd Shafi Vs. Mohd. Rafiq & Ors.). On the strength of this authority it has been submitted that unless the entire cross examination is over the Court cannot exercise its discretion u/s 319 Cr.P.C.
(13) On the contrary judgment has been cited of the Apex Court reported in 2001 (JIC) 757, (Rakesh & Ors. Vs. State of Haryana) (Supra) wherein it has been held that even an uncrossed testimony would fall within the definition of word 'evidence' and therefore the order cannot be assailed on this ground.
(14) In Rakesh's case (Supra) while deciding the controversy the Apex Court has taken a view that for exercising the jurisdiction conferred under section 319 Cr.P.C., the court if satisfied that a prima facie case is made out for the trial of accused sought to be summoned along with other co-accused, he may be summoned under section 319 Cr.P.C. It was further observed that in view of the scheme of Section 319 Cr.P.C. the evidence in respect of the accused summoned under Section 319 Cr.P.C. would be taken denovo. Hence, the opportunity of cross-examination could not be afforded to the accused summoned under section 319 Cr.P.C. before passing an order.
(15) In Mohd Shafi's case (Supra) it has been held; while exercising jurisdiction under section 319 Cr.P.C. the court must satisfy himself that the person so summoned is in all likelihood would be convicted. Such satisfaction could be arrived at after completion of the cross-examination of the said witness. The relevant para 13 of the aforesaid judgement is reproduced here-in-below:-
"From the decisions of this Court, as noticed above, it is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. We are therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed."
(16). My attention, however, has been drawn to a Two-Judge Bench decision of Hon'ble Supreme Court in Hardeep Singh v. State of Punjab & Ors. [JT 2008 (12) SC 7] wherein doubting the correctness of Mohd. Shafi (supra), two questions have been referred to a larger Bench, which are as under:
(1) When the power under Sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court, whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete ?
(2) What is the test and what are the guidelines of exercising power under Sub- section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted ?"
(17) The extent of the power of a trial court to summon persons other than the accused to stand trial in a pending case came up for consideration before Apex Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi [(1983) 1 SCC 1]. Therein, the Supreme Court held that the provision under section 319 Cr.P.C. confers a discretionary jurisdiction on the court and held that "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."
(18) The Supreme Court in Lok Pal v. Nihal Singh [(2006) 10 SCC 192] held that there is no compelling duty on the court to proceed against a person under section 319 Cr.P.C. only for this simple reason that some evidence had been on record implicating the person sought to be added. The observations made by the Supreme court are as under :-
"...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.
(19) It was observed by Apex Court in Sarabjit Singh & Ans Vs. State of Punjab & Ans., 2009(3) JIC 522 (SC)in para 18, which is reproduced below;
"18. 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 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."
(20) In view of guidelines issued in Sarojben case (Supra) it would be incumbent upon the courts before exercising the jurisdiction conferred under section 319 Cr.P.C. that the court must satisfy itself that the involvement of the accused is established from the evidence adduced during trial.
(21) Case of Md. Shafi (Supra) has been considered in Lal Suraj @ Suraj Singh & Ors Vs. State of Jharkhand 2009 (JIC) Page 793 (SC) . The Apex Court by stating therein observed as under :-
".... The 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 charge would have before it all the materials on record which were required to be proved by the prosecution. In case where, however , the Court exercises its jurisdiction under section 319 of the Code, the power has to be exercised on the basis of fresh evidence brought before the Court. There lies a fine but clear distinction."
(22) In Shashikant Singh v. Tarkeshwar Singh [(2002) 5 SCC 738], the Supreme Court held:
" (9) The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross- examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court."
.............................
"(14) A Magistrate is empowered to take cognizance of an offence in the manner provided under Section 190 of the Code. Section 209 enjoins upon a Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Section 193 provides for the power of the Court of Session to take cognizance of any offence. It uses the expression "cognizance of any offence" and not that of "offender". These three provisions read with Section 319 make it clear that the words "could be tried together with the accused" in Section 319 are only for the purpose of finding out whether such a person could be put on trial for the offence"
(23) In Rakesh v. State of Haryana [(2001) 6 SCC 248], the Supreme Court held in para 13 as under:
"(13) Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term "evidence" as used in Section 319 of the Criminal Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross- examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. The section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross- examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. The word "evidence" occurring in sub-section (1) is used in a comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the court and from which the court can prima facie conclude that the person not arraigned before it is involved in the commission of the crime."
(24) In Ranjit Singh v. State of Punjab [(1998) 7 SCC 149], the Supreme Court opined:
"(20). Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.
(21). But then one more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to a miscarriage of justice), is the Sessions Court completely powerless to deal with such a contingency? One such situation is cited by the learned Judges through an illustration narrated in Kishun Singh's case as follows:
"[W]here two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challaned by the police, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34 IPC. If he cannot summon A, how does he frame the charge against B ?
(25) In Municipal Corporation of Delhi Vs. Ram Kishun Rastogi (1983) SCC page 1 which still hold a good law it has been observed that the power u/s 319 Cr.P.C. is an extraordinary power is required to be exercised springily and only when compelling reasons exist for taking cognizance against whom action has to be taken. This judgment has been considered in so many cases by the Apex Court and also considered in the latest judgment of Supreme Court in Sarojben 's case (Supra).
(26) In view of the aforesaid authorities it has to be considered by the court while exercising the jurisdiction u/s 319 Cr.P.C.that
(a) Only evidence adduced during enquiry or trial should be considered. The court could not proceed to take action under section 319 Cr.P.C. on the basis of materials available in the case diary against a person not included in police report as an accused.
(b) The evidence so adduced should be sufficient for the involvement of the person not being the accused has committed any offence and appears to be guilty for that offence as an accused .
(c ) And for that offence such person could be tried togather with the accused already facing trial as observed in Ranjit Singh's case supra.
(d) The court should also kept in mind full concepts of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then because in a case of newly added accused the proceeding in respect of such person shall be started as fresh from the beginning of the trial in view of Sec. 319 (4) Cr.P.C.
(27) Thus, the power conferred upon the courts u/s 319 Cr.P.C. is discretionary but should be exercised sparingly. Mere doubt about the involvement of other person on the basis of evidence let in before the court would not be enough. The court should also see and must be satisfied that circumstances justify and warrant that the other person be tried with the accused already facing trial.
(28) The question whether uncrossed testimony could be considered as "evidence" within the meaning of Section 319 Cr.P.C. though, has been referred to a larger Bench but in view of judgment rendered by the Apex Court in Harbhajan Singh's case (Supra) the matters pending before courts may not be left undecided. In this regard para 13 of Harbhajan Singh's case (Supra) is relevant and as such is reproduced here-in-below:-
"13. We would assume that in all cases the court may not wait till cross- examination is over for the purpose of exercising its jurisdiction. In the aforementioned decision, the learned Judges had referred to a judgment of this Court in the case of Rakesh & Anr. v. State of Haryana (2001) 6 SCC 248 wherein it was held that even without cross-examination on the basis of a prima facie material which would enable the Sessions Court to decide whether the power under Section 319 of the Code should be exercised or not stating that at that stage evidence as used in Section 319 of the Code would not mean evidence which is tested by cross- examination."
(29) In Rakesh Kumar case(Supra) the Apex Court decided the matter on the premises that prima facie the material would enable the Court to decided whether the power u/s 319 Cr.P.C. should be exercised or not. However, in later decisions the Apex Court say 'good by' to the theory of 'prima facie case' for exercising jurisdiction u/s 319 Cr.P.C.. However more stringent requirements were asked to be considered by the Courts while exercising the jurisdiction u/s 319 Cr.P.C.
(30) In Mohd. Shafi's case a different view has been taken by the Apex Court. However, in Harbhajan Singh's case (Supra) after considering the judgement in Rakesh's case (Supra) and in Mohd. Shafi's case (Supra) observed that if a judicious discretion has been exercised by the court to pass an order u/s 319 Cr.P.C. the High Court could not interfere in exercise a revisionary jurisdiction but where legal principles laid down by the Apex Court are not followed the High Courts may interfere.
(31) Now, in view of the principles of law discussed as above the fact of this case ought to be scanned.
(32) From perusal of the record and of the impugned order it reveals that the petitioner was dropped by the police after investigation though he was named in the first information report. In this case only the complainant Dilip Kumar Singh was examined, who lodged the F.I.R of this case. After recording the examination-in-chief the case was listed for cross-examination with this witness. But before conducting the cross-examination by the accused persons an application has been moved by prosecution u/s 319 Cr.P.C., which was allowed by the Trial Court. The Trial Court simply observed that from the statement of Dilip Kumar Singh (PW.1) the involvement of the present applicant is established, similarly as in respect of other accused facing trial. The trial court has also observed that the name of the petitioner was mentioned in the First Information Report, however, the Investigating Officer did not file charge sheet against the petitioner. Therefore, summoning the petitioner for trial is justified.
(33) From perusal of the impugned order it seems that the learned trial Court after recording evidence of Dilip Kumar Singh observed that he is implicating the present applicant and consequently, summoned him to face the trial. The trial court did not observe in its order whether his trial along with other accused is required for just decision of this case . It has also not been considered as to why the extraordinary jurisdiction under section 319 Cr.P.C. was exercised. It has also not been considered that the evidence relied upon is of such a nature that the same without testing on touchstone of cross examination would be sufficient to establish involvement of petitioner who appears to be guilty of the offence if evidence remains controverted in the light of statutory requirements of section 319 Cr.P.C., specially when the complainant (PW1) himself stated on oath that her daughter informed him about the incident at his house and thereafter he reached on the spot . These are the material questions which ought to have been considered and answered by the trial court while exercising the jurisdiction conferred upon it under section 319 Cr.P.C. Therefore, this court is of the firm view that impugned order passed by the Trial Court summoning the petitioner to face the trial u/s 319 Cr.P.C. is not sustainable and is liable to be set aside.
(34) However, it is provided that order passed by this court will not be an impediment to exercise the jurisdiction u/s 319 Cr.P.C. by the trial court if upon the evidence adduced during trial at any subsequent stage it is found sufficient after testing the same on the touch stone decided for exercising the jurisdiction, the same may be exercised by the Trial Court.
(35) The petition is allowed. The impugned order dated 4.8.2012 is set a side.
Order Date : 30th January, 2013 (Mr. Justice Vishnu Chandra Gupta)
S.Kumar