Jishan vs State Of Chhattisgarh on 19 November, 2024

[Cites 35, Cited by 0]

Chattisgarh High Court

Jishan vs State Of Chhattisgarh on 19 November, 2024

1. Heard Mr. Choudhary Ali Zia Kabir and Mr. Akram Akhtar, Advocates through Video Conferencing with Ms. Rajni Soren, Advocate learned counsel for the appellant as well as Mr. Prafull N. Bharat, Advocate General with Mr. Shashank Thakur, Dy Advocate General for the State/respondent. Also heard Ms. Annapurna Tiwari, learned counsel for the Union of India/respondent No.7.

2. The petitioners are seeking indulgence of this Court under article 226 3 / 21 of Constitution of India while praying for investigation by Special Investigation Team (in short SIT) in respect of death of 3 persons namely Tehseen @ Guddu, Chand Miya and Saddam respectively. According to the petitioners these 3 persons were assaulted and murdered in "Mob lynching" by the accused persons and an FIR has been lodged vide Crime No. 0421/2024, registered at Police Station - Aarang, District Raipur by the petitioner No.4 Shuaib Khan against unknown persons for the offence punishable under Sections 304, 307 read with 34 of IPC in which upon investigation the Police Station- Aarang has filed chargesheet on 08.07.2024 bearing chargesheet No.385/2024 for the offence punishable under Sections 304, 307 read with 34 of IPC. The aforesaid chargesheet has been filed against 5 accused persons who are respondent Nos.8 to 12 in the present petition, however, according to the petitioners, the near relatives of the deceased, there are many other accused persons who have not been caught by the concerned police and as such, the petitioners are praying for investigation in the matter by the SIT. According to the petitioners all the deceased persons who were indulge in transporting around 25 Buffaloes carrying in truck bearing number CG 07 CG 3929, were caught by the accused persons along with the Mob on an allegation that the transporting of buffaloes were for smuggling of the same to Odhisa for selling it to Buchar House.

3. The present writ petition has been filed by the petitioner with the following prayers :

"(i) Issue a writ of mandamus or any other appropriate writ directing the constitution of a Special Investigation Team (SIT), under the supervision of this Hon'ble Court, to investigate the mob lynching incident that took place on 4 / 21 07.06.2024 in Arang, Raipur Chhattisgarh registered as Crime No.421/24, Police Station Arang, District Raipur.

(ii) Issue directions to the respondent State Government to take immediate steps for the arrest and prosecution of all accused persons identified in connection with the incident, including the policemen.

(iii) Issue appropriate directions to ensure the implementation of this Hon. Supreme Court's guidelines laid down in the Tahseen Poonawalla v. Union of India, (2018) 9 SCC 501, regarding preventive and punitive measures against mob lynching.

(iv) Issue directions for periodic reports to be submitted before this Hon'ble Court regarding the progress of the investigation by the SIT and the action taken by the respondent authorities in the case.

(v) Issue a writ of mandamus directing the respondent to grant compensation of Rs.1,00,00,000/- to the families of the three deceased persons.

(vi) Issue any other writ, order, or direction which this Hon. Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice."

4. According to the petitioners the petitioner Nos. 1, 2 and 3 are the brother and father of the victims/deceased namely Tehseen @ Guddu, Chand Miya and Saddam respectively. Since the deceased persons were their near relatives as such, they are having locus and authority to file this petition. Likewise, the petitioner No.4 is the cousin brother of the deceased Saddam. The petitioner No.4 is the complainant upon whose instance FIR has been registered. It is further case of petitioner that the lynching of Saddam, aged about 22 years, S/o. Nausad, R/o. Village - Lakhnouti, PS Gangoh, District Saharanpur, Uttar Pradesh, 5 / 21 Tehseen @ Guddu, aged about 40 years, S/o. Anis, R/o. Banat, PS Adarsh Mandi Shamli, District Shamli, Uttar Pradesh and Chand Miya, aged about 20 years, S/o. Naushad, R/o. Village Lakhnouti, PS Gangoh, District Saharanpur, Uttar Pradesh was committed at about 1:30 a.m. on 07.06.2024 at the hands of a mob of about 15 people, on suspicion of cow smuggling, while they were transporting buffalos, in reality for reasons of them being Muslims.

5. It was alleged that on 7th June of 2024, in the early morning at about 12:45 am they were chased by some hostile men driving multiple vehicles viz. one grey Honda City numbered CG 04 HM 2111, one blue BMW numbered CG 04 LX 7080 and one Swift Desire numbered CG 24 M 6433. From 1 am onwards, Chand Miya made multiple calls to his employer Shanu and others updating about the ongoing ordeal. Meanwhile the chasing men were hurling anti-Muslim abuses, throwing stones and were threatening them with dire consequences. This chase started at about 12:45 am. Fearing for their life, the trio started driving back towards Raipur on wrong side. The pursuing vehicles soon overtook the truck and laid down a spiked belt on the road ahead with the purpose of puncturing their truck tyres. This worked at about 1:45 am near Mahanadi River place, the vehicle came to a stop at Mahanadi River bridge. Some of the phone conversations were recorded. The three persons were immediately captured by about 15 men. They were severely beaten up with rods, lathis other blunt weapons. The aim is taken at their heads and various organs. After beating them for several minutes the mob threw them from Mahanadi River bridge. The bridge is about 60 feet and at that time of the year the water level was quite low so that river is, but a stream let. Because of this the riverbed was exposed and it contained ragged sharp-edged 6 / 21 stones and boulders. The trio fell onto these stones and were further severely injured. The 15 men then were looking for them in the river- bed. By this time, they were joined by the police and two of the policemen also followed them to look for the victims in the river bed. These men came down the bridge to the place where the victims had fallen. They were dead, dying and/or severely injured. They are bloodied, with several visible grave injuries, including broken bones protruding from their arms and other areas. This search party, including the policemen, in seen absolutely apathetic to the plight of the victims. They are merely confirming whether they are dead or alive. They are offering no treatment whatsoever they are abusing the injured most abominably. Then few of the men go to one of the injured persons who could speak and, in an attempt to exonerate themselves, are repeatedly trying to force him to admit that he and the other jumped from the bridge out of their own volition. All this is happening in the presence of the police. This entire gruesome incident is captured in three different video clips by the murderers themselves. The police deliberately delayed any action with a view to ensure that the victims and any testimony from them extinguished on the spot. No protection, first aid or even water was provided to the injured and dying. The lone surviving victim Saddam, was admitted to the Mahasmand District Hospital only at about 6.30 am. After a delay of full 5 hours even though the hospital is merely 10 minutes away from the Mahanadi River bridge in question. While the kin of the victims reached the Aarng police station at about 5.30 am and informed them about the telephone calls they had received from the victims. They informed how the victims were murderously assaulted by the mob and the police did not respond on time. After much protest, the police recorded their statement and 7 / 21 took their signatures. But they did not file the FIR till 10 pm on 7.6.2024 after a delay on nearly 24 hours. FIR No. 421/2024 was registered against unknown persons u/s 304, 307, 34 IPC at P.S. Arang, Raipur District and while the kin disclosed that the victim described about 15 men, Police registered a case only against 5 people. It may be noted that there were three vehicles, each with a capacity to seat at least 5 people. Then no FIR was registered against the police officers seen casually walking about as the victims lay dying. The FIR was also registered under the most lenient sections of Indian Penal Code, u/s 304 Part II, i.e. culpable homicide not amounting to murder, instead of u/s 302. Then the police refused to recover the murder weapons, the said rods, batons and lathis from the crime scene. Not even a perfunctory search was made for them. this is despite the fact that the post- mortem report discloses the assault by blunt weapons. The police entirely changed the statement made by respondent no. 4 the complainant. Who had informed police in great details about the chain of events leading to the lynching of the three.

6. It was urged by the counsel for the petitioners that the mob lynching of the victims constitutes a gross violation of their fundamental rights under article 14 (Right to Equality), 15 (Prohibition of Discrimination), and 21 (Right to Life) of the Constitution of India. The inaction of the respondent authorities violates the victims' right to a fair investigation and justice.

7. The reason that police did not conduct even a cursory search for the murder weapons viz. rods, batons, lathis and other blunt weapons. This is despite the fact that the postmortem report discloses the ante mortem blunt instrument injuries. (Annexure postmortem). The reason 8 / 21 that only 5 persons have been made accused even though three vehicles with a combined seating capacity of 15 men are seized. And then the victims and their next of kin have informed that they were being chased by about 15 men. The reason that no FIR is registered against the policemen at the spot, including two policemen seen casually walking about at the crime scene even as the victims lay injured and dying. No action whatsoever has been taken against them in violation of Arumugam Servai v. Tamil Nadu reported in (2011) 8 SCC 405, and all in all none of the guidelines of the Tahseen Poonawalla v. Union of India, reported in (2018) 9 SCC 501 have been followed.

8. On these premises the petitioners have prayed that an investigation by the SIT may be directed and all the accused persons who are involved in the matter may be directed to be chargesheeted. The respondent State may also be directed to grant compensation of Rs.1,00,00,000/- to the family of the 3 deceased persons.

9. The learned counsel for the petitioners argued that the matter relates to mob lynching in which the 3 deceased persons were murdered by the mob on an allegation that they were transporting 25 buffaloes on a truck for smuggling them to Odhisha for selling them to Butcher house. It has been submitted by the counsel for the petitioner that upon 3 Cars the accused persons chased the truck and the truck was forcefully stopped by them and thereafter the deceased who were Driver, Helper and Cleaner respectively were abused and assaulted. When they tried to run away leaving their truck, the accused persons chased them. One of the deceased namely Chand Miya has informed to Shuaib Khan (petitioner No.4) regarding the incident and thereafter he died. The 9 / 21 conversation was recorded which has been annexed with this petition in order to show that the incident is of mob lynching. The counsel for the petitioners have argued that the statement of complainant Shuaib Khan recorded under Section 161 of CrPC has been deliberately changed. The mob lynching was done for targetting minor community to which the deceased belongs. They were murdered on an allegation of smuggling and consumption of beef. The concerned Police has one sided conducted the investigation and has stated that it was a cow smuggling though in the vehicle only healthy buffaloes are being transported for dairy business. It was further argued that time and again the Supreme Court in the case of Tahseem S. Poonawalla vs. Union of India reported in (2018) 9 SCC 501 has held vide para 17 as under :

"17. There can be no shadow of doubt that the authorities which are conferred with the responsibility to maintain law and order in the States have the principal obligation to see that vigilantism, be it cow vigilantism or any other vigilantism of any perception, does not take place. When any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society. Vigilantism cannot, by any stretch of imagination, be given room to take shape, for it is absolutely a perverse notion. We may note here that certain applications for intervention and written notes have been filed in this regard supporting the same on the basis that there is cattle smuggling and cruel treatment to animals. In this context, suffice it to say that it is the law enforcing agencies which have to survey, prevent and prosecute. No one has the authority to enter into the said field and harbour the feeling that he is the law and the punisher himself. A country where the rule of law prevails does not allow any such thought. It, in fact, commands for ostracisation of such thoughts with immediacy."

.....

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"42. We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set- up governed by rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become "the new normal". The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, "must ring with the voices of the people." The exigencies of the situation require us to sound a clarion call for earnest action to strengthen our inclusive and all-embracing social order which would, in turn, reaffirm the constitutional faith. We expect nothing more and nothing less"

10. Though the concerned police has requisitioned CDR which is a part of charge sheet, however, these phone calls were not investigated and without proper investigation charge sheet has been filed. It has been submitted that the Supreme Court in the case of Vinay Tyagi vs. Irshad Ali@Deepak & others reported in (2013) 5 SCC 762 has held that inappropriate cases in which the Court feels that the investigation by the police authorities are not in proper direction in order to do complete justice. It is always upon to the Court to hand over the investigation to a specialized agency. The counsel for the petitioners further relied upon the decision of the Supreme Court in the case of R.S. Sondhi, Advocate vs. State of Uttar Pradesh & others reported in 1994 SUPP (1) SCC 143 has held that when the accusations are directed against the local police personnel it would be desirable to entrust the investigations to an independent agency like the Central 11 / 21 Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter. It has been submitted that since the deceased persons were assaulted by the mob and they died due to mob lynching as such the investigation through SIT to identify and arrest all other accused persons connected with the incident including policemen to assure preventive and punitive measures agaisnt the mob lynching and further to issue writ of mandamus directing the respondent authorities to grant compensation to the tune of Rs.10 lakhs to the family members of the deceased persons would be appropriate, just and proper in order to console the family members of the deceased who died in mob lynching.

11. On the other hand learned State counsel for the respondent opposes the petition filed by the petitioners and it has been submitted that the case as projected by the petitioners are incorrect according to investigation done by the concerned police, it was found that the deceased persons were stopped and inquired them could not give satisfactory reply in respect to 25 buffaloes being transported by them and when the accused persons have inquired from them in order to escape from the place of incident all the deceased persons jumped into river Mahanadi where they fell down upon the rocks and stones lying there in the river by which they sustain serious injuries on their head and other vital parts of the body. The so called accused persons rescued them and they tried to save their lives, however, due to serious injuries sustain by them in their heads and other vital parts of the body the deceased persons were died. From the postmortem report it is apparent that two of them were found dead whereas one has been sent to hospital. The FIR has been lodged by the complainant who is 12 / 21 one of the petitioner in this case and on the basis of his complaint, the statement of the witnesses namely Gulab Sahu and Sadhu Ram Baghel were recorded and the statement of the complainant Shuaib Khan was also recorded and from the evidence of independent witnesses it appears that while running away from the scene the deceased persons fell down from the bridge over Mahanadi river and sustain serious injury. Merg was recorded by the complainant, in the said merg also the aforesaid facts are evident. The police after complete investigation has filed charge sheet and there is no any infirmity in the investigation. The petition filed by the petitioners are without any basis, there is no any evidence of mob lynching and accordingly the petition is liable to be dismissed.

12. We have heard the learned counsel for the petitioners as well as the counsel for the respondents and have also perused the record. From the bare perusal of the FIR lodged by the complainant Shuaib Khan who is petitioner No.4 herein, it seems that the merg was reported by him and thereafter his statement was also recorded, however, the allegation which are being made in this petition were could not find place in the said complaint as well as in the merg.

13. There is no evidence to show that mob lynching was done on the ground of the petitioner being related to a particular community. The police has completed detail investigation in which after considering entire aspects of the matter has filed charge sheet. While collecting the evidence in the present case which is in the shape of documentary as well as oral. From the statements of the independent witnesses recorded under Section 161 of the CrPC it transpires that on being enquired and on being chased the deceased persons in order to save 13 / 21 themselves jumped from the bridge over the Mahanadi river and have sustained serious injuries on their head and other vital parts. The police has conducted the enquiry and has filed chargesheet under Section 173 of CrPC. In the present case the concerned police has filed charge-sheet against 5 accused persons and all the accused persons were granted bail by the concerned Court. The concerned Magistrate has also committed the case to the concerned trial Court where the charges have been framed against the accused persons and the case is fixed for evidence before the concerned trial Court.

14. As per Criminal Procedure Code, 1973 - S. 173(8) - Power of further investigation has been dealt. The power under sub-section (8) of Section 173 should not ordinarily exercised therewith by directing that investigation to be made from a particular angle or by a particular agency. The relevant portion of para 173(8) of CrPC is quoted as below :

"173. Report of police officer on completion of investigation - (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

(i) Merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge-sheet could not be filed, C. Миnіарраn v. State of Tamil Nadu, AIR 2010 SC 3718.

(ii) When a power under sub-section (8) of section 173 is exercised, the court ordinarily should not interfere with the statutory powers of the 14 / 21 investigating agency. The court cannot issue directions to investigate the case from a particular angle or by a particular agency; Popular Muthiah v.

State. Represented by Inspector of Police, (2006) 7 SCC 296

(iii) The "police report" (result of investigation under Chapter XII of the Code of Criminal Procedure) is a conclusion that an investigating officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent court to take cognizance there upon under section 190(1)(b) of the Code and to proceed with the case for trial, and it cannot rely on the investigation or the result thereof: Kaptan Singh v. State of Madhya Pradesh. (1997) 4 Supreme 211.

(iv) Power of police to conduct further investigation, even after laying final report, is recognised under section 173 (8); Sri B.S.S.V.V.V. Maharaj v. State of Uttar Pradesh, 1999 Cr LJ 3661 (SC)"

15. As per decision of the Supreme Court in the case of Popular Muthiah vs. State represented by Inspector of Police reported in (2006) 7 SCC 296 under Criminal Procedure Code, 1973 - S. 173(8) - When power under sub-section (8) is exercised Court should not ordinarily interfere therewith by directing that investigation be made from a particular angle or by a particular agency. The relevant para 48 is quoted as below :

"48. The High Court while passing the impugned judgment did not bear the said principles in mind. It went beyond its jurisdiction in directing the prosecution of the appellant before us. In a case of this nature, where a superior court exercises its inherent jurisdiction, it indisputably should remind itself about the inherent danger in taking away the right of an accused. The High Court should have been circumspect in exercising the said jurisdiction. When a power under sub-section (8) of Section 173 of the Code of Criminal Procedure is exercised, the court ordinarily should not interfere with the statutory power of the 15 / 21 investigating agency. It cannot issue directions to investigate the case from a particular angle or by a particular agency. In the instant case, not only the High Court had asked reinvestigation into the matter, but also directed examination of the witnesses who had not been cited as prosecution witnesses. It furthermore directed prosecution of the appellant which was unwarranted in law."

16. In the present case since the charges have been framed against the accused persons and they were put on trial by the concerned trial Court. The evidence of witnesses are going to be recorded, hence is such situation, the petitioners are at liberty to record their statements along with materials which they are having so that concerned trial Court after considering the evidence of the witnesses may summoned other accused persons also under Section 319 of the CrPC. So far as the prayer for enquiry by the SIT is concerned it cannot be directed in the routine manner specially when the matter is subjudice before the concerned Court. The photographs filed from the social media is also a matter of evidence and the petitioners can very well file the same in an appropriate stage during the course of trial. Time and again the Supreme Court has held that the wheels of the investigation cannot be directed on the whims and wishes of the complainant. The concerned police is empowered to investigate the matter and to file chargesheet under Section 173 of the CrPC.

17. Now, so far as arrest of other accused persons are concerned even during the course of trial from the evidence of complainant or the witnesses, it seems that there are other accused persons involved in the case the trial Court can very well summoned the accused persons under Section 319 of CrPC now under Section 358 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 319 of CrPC for 16 / 21 ready reference is quoted as below :

"319. 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.

18. The Supreme Court in the matter of Suman v. State of Rajasthan reported in AIR 2010 SC 518 has held in paras 13, 14 and 15 as under :

"13. The scope of Section 319 Cr.P.C. was considered in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others (1983) 1 SCC 1, in the backdrop of the fact that the High Court had, in exercise of its power under Section 482 Cr.P.C., quashed the proceedings taken against respondent Nos.1 to 5 of whom respondent No.1 - Ram Kishan Rohtagi was the Manager of the company engaged in manufacturing Modern Toffees and respondent Nos.2 to 5 were its Directors. This Court reversed the order of the High Court insofar as respondent No.1 was 17 / 21 concerned, but upheld the same in respect of other accused and proceeded to observe:

"Although we uphold the order of the High Court we would like to state that there are ample provisions in the Code of Criminal Procedure, 1973 in which the Court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused. In the old Code, Section 351 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused. The Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and Section 319 of the present Code gave full effect to the recommendation of the Law Commission by removing the lacuna which was found to exist in Section 351 of the old Code."

The Court then referred to the judgment in Joginder Singh and another v. State of Punjab and another (supra) and held:

"In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add 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."

14. In Lok Ram v. Nihal Singh and another (2006) 10 SCC 192, the Court examined the correctness of the direction given by the High Court for impelading the appellant as an accused in terms of Section 319 Cr.P.C. The facts of that case were that two daughters of Nihal Singh (the complainant) were married to two sons of the appellant - Lok Ram. One of the daughters of Nihal Singh, namely, Saroj died on 14.9.2001. Soon thereafter, Nihal Singh filed complaint at Police Station Fatehabad (Haryana) alleging commission of offence under Section 406 read with Section 34 IPC. During investigation, the appellant claimed that he was serving in a school at the time of the death of Saroj. His plea was accepted by the Investigating Officer and he was not charge-sheeted. During trial, the complainant filed an application under Section 319 Cr.P.C. By an order dated 6.9.2002, the learned Sessions Judge rejected the application. That order was reversed by the High Court and a direction was given to the trial court to proceed against the appellant by summoning him. Before 18 / 21 this Court, it was argued that the appellant could not be summoned under Section 319 Cr.P.C. because even though he was named in the FIR as an accused, the police did not find any evidence against him and was not charge-sheeted. While rejecting the argument, the Court referred to the judgments in Joginder Singh and another v. State of Punjab and another (supra), Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others (supra), Michael Machado and another v. Central Bureau of Investigation and another (2000) 3 SCC 262, and observed:

"On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge- sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision in Sohan Lal v. State of Rajasthan, the position of an accused who has been discharged stands on a different footing."

Power under Section 319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. 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 the evidence of witnesses given in court. Under sub-section (4)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub- section (4)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned."

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(emphasis supplied)

15. In view of the settled legal position as above, we hold that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 Cr.P.C. if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. As a corollary, we hold that the process issued against the appellant under Section 319 Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge- sheet against her.

19. Recently the Supreme Court in the matter of Saeeda Khatoon Arshi v. The State of Uttar Pradesh reported in (2020) 2 SCC 323 has held in paras 18 and 25 as under :

"18. The decision of the Constitution Bench of this Court in Hardeep lays down the principles governing the exercise of the jurisdiction under Section 319. Observing that "it is the duty of the court to do justice by punishing he real culprit", the Court observed: (SCC p. 114, para 13) "13.... 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."

25. In Rajesh v. State of Haryana 10, this Court held that the court, while exercising its jurisdiction under Section 319, is not rendered powerless even in a case where the stage of furnishing an opportunity to the complainant to file a protest petition urging the trial court to summon other persons as well as those who are named in the FIR but not impleaded in the charge-sheet, has gone."

20. The allegation of the petitioners that it is a case of Mob lynching in which the three accused persons have died cannot be adjudicated in this writ petition as once the matter has been seized by the concerned trial Court where charges have been framed against some of the 20 / 21 accused persons against whom the trial is going to be started very soon as the matter is fixed for evidences. The Writ Court under Article 226 of Constitution of India cannot hold that the deceased persons died in a Mob lynching. Further when after investigation chargesheet has been filed and charges have also been framed against the accused persons, unless and until the trial Court during the course of evidence come to a conclusion that there are other persons involved in this case, anyone cannot be made as accused person. The petitioners are having opportunity to lead evidence before the trial Court and to reveal before the trial Court concerned that there are involvement of other persons and the trial Court will take care of the evidences adduced by the witnesses in order to come to the conclusion that other accused persons are also involved and they are also required to be tried along with the present accused persons. In this view of the matter, at this stage, we cannot hold that it is a matter of Mob lynching and there are several other persons involved in the matter with respect to murder of the three relatives of the petitioners.

21. So far as prayer regarding compensation part is concerned since the trial is at initial stage and it has not been proved that the deceased persons were died due to Mob lynching, it would be appropriate that the evidence of the prosecution witnesses may be recorded in the present case and after judgment passed by the trial Court petitioners or relative of the deceased persons can claim compensation on the basis of evidence of trial Court before the competent Court on appropriate time. At this stage when the trial is pending before the concerned trial Court it would be inappropriate either to allow or dismiss or to pass direction to this effect.

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22. In view of the aforesaid aspects of the matter, we are not inclined to allow this petition as per relief claimed by the petitioners. The petition being sans merit is liable to be dismissed and is accordingly dismissed.

                                Sd/-                                     Sd/-

                    (Amitendra Kishore Prasad)                      (Ramesh Sinha)
                             Judge                                   Chief Justice

Ravi Mandavi

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