Rajasthan High Court - Jaipur
Dalip Singh And Ors. vs State Of Rajasthan on 16 May, 1988
Equivalent citations: 1989CRILJ600, 1988(2)WLN366, 1989WLN(UC)194
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur
JUDGMENT Kanta Bhatnagar, J.
1. The petitioners, who have been chargesheeted for the offences under Sections 447, 364, 302 and 302 read with Section 34, I.P.C. by the Sessions Judge, Sri Ganganagar, in an application under Section 319 of the Code of Criminal Procedure (hereinafter to be referred as 'the Code') in that Court prayed for taking cognizance against six other persons alleged to have been named in the dying declaration of Kalwant Singh. The learned Sessions Judge following the principle enunciated in the Division Bench decision of this Court in the case of Sheo Ram Singh v. The State of Rajasthan 1982 Cri LR (Raj) 657 rejected the prayer on the ground that the word 'evidence' occurring in Section 319 of the Code means the evidence recorded by the Court during the course of inquiry into or trial of the case and not the statements recorded by the Police or the documents filed along with the chargesheet, The petitioners feeling aggrieved by the aforesaid order of the learned Sessions Judge filed petition under Section 482 of the Code with 'the prayer that the impugned Order be set aside and proceedings and charge-sheet against the petitioners be quashed. The correctness of the view taken in Sheoram Singh's case has been seriously assailed and it has been prayed that the petition be referred to a larger Bench of this Court for reconsideration of the view taken by the Division Bench in that case. The prayer for referring the petition to a larger Bench having been allowed, the matter comes up before this Bench.
2. In Sheoram Singh's case 1982 Cri LR (Raj) 657 the point under reference was as to whether the word 'evidence' used in Section 319 of the Code signifies and means the evidence recorded in the Court, or it can also include the evidence recorded by the Police both, oral and documentary. The learned Judges discussing the decisions of this Court and other High Courts and Hon'ble the Supreme Court regarding the power of the Court to take cognizance against persons not arrayed as accused in the charge-sheet or the Committal order, and construing the meaning of the 'evidence', and the implications of the term "inquiry into and trial or" held as under:
The term 'evidence' as used in Section 319 Cr. P.C. means the statements of witnesses recorded before the Court during an impairy or trial and does not include the statements recorded by the police under Section 161, Cr. P.C. or the statements recorded at the instance of the police by the Magistrate under Section 164, Cr. P.C. and the statements recorded by the Magistrate under Section 202(2), Cr. P.C. and the papers submitted by the police in the form of any other documents, simpliciter.
3. In view of that finding, the five revision petitions under reference before their Lordships, in which the cognizance against the various petitioners in the revision petitions was taken without recording of the statement of any witness by the Court were allowed and the impugned orders passed by the trial Court for taking cognizance under Section 319 of the Code were quashed.
4. The enactment of Section 319 of the Code is an expression of the desire of the legislature to vest power in the Courts to place in dock the persons against whom there appears to be evidence but who, either due to inadvertence of the Investigation agency or for any other reason, had not been arrayed as offenders and put up for trial before the Court. Just as it is a cardinal principle of criminal law that innocent persons should not be punished, it is also in the interest of society that the real offender may not be spared The vesting of the power in the Court for taking cognizance against persons not already there in the array of offenders on account of the anxiety of the Legislature that the offenders may be put in dock at whatever stage it may appear to the Court that in order to proceed against such persons it is necessary to add them in the array of the offenders already facing inquiry or trial.
5. Section 319 of the Code is not an altogether new provision in the New Code of Criminal Procedure. It is rather redrafting of Section 351 of the Old Code of Criminal Procedure. By virtue of the provision of Section 351 of the Old Code any Criminal Court, could detain any person attending a criminal Court for the purpose of inquiry into or trial of an offence which from the evidence appeared to have been committed and the Court could proceed against such person as if he had been arrested or summoned. The Court had however no power to summon or add a person not appearing in the Court, despite there being evidence indicating prima facie case against persons other than those already in the dock for inquiry or trial. Because of the restricted power under Section 351(1) of the Old Code and there being no express provision in that Section for summoning a person not present in the Court, against whom from he evidence prima facie case might appear, the Law Commission in its 41st report recommended comprehensive provision which led to the enactment of Section 319(1) which reads as under:
319. Power to proceed against other person 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.
6. There is conflict of judicial opinion regarding the construction of the meaning of the term 'evidence' appearing in Section 319(1) of the Code. In certain cases, the Courts have taken the material produced before the Court at the stage of charge to be evidence, while in other cases the word 'evidence' occurring in this Section has been narrowly interpreted and only statements recorded by the Court in the course of any inquiry into or trial of an offence has been taken to be evidence for the purpose of this Section. As stated earlier, the Division Bench of this Court in Sheo Ram Singh's case 1982 Cri LR (Raj) 657 has taken the word 'evidence' to mean only the statements recorded in the Court and that narrow construction of the term has been assailed and sought to be reconsidered in the petition referred to this Bench.
7. In Sheoram Singh's case while ' proceeding to consider the legal controversy regarding the interpretation of term 'evidence' for the purpose of adding persons not already before the Court as accused, a number of decisions were referred. One such case was Ajayab Singh v. State of Rajasthan 1978 Raj LW 9 wherein it was held that the term 'evidence' used in Section 319(1), Cr. P.C. includes the statements of witnesses recorded by the police under Section 161, Cr. P.C. and the documents submitted to the Court along with the challan. The principle enunciated in that case was followed in the case of Harji Ram v. State 1979 Cri LR (Raj) 248. Discussing in detail the provisions of Section 319, Cr. P.C. his Lordship observed that the word 'evidence' in Section 319 includes the statement recorded by the Police under Section 161, Cr. P.C. and the documents submitted in the Court along with the challan.
8. In the case of Laxminarayan v. State of Rajasthan 1980 Raj Cri C 46, deciding a petition under Section 482 of the Code, the learned Judge held that the order to proceed against a person, not an accused and for his trial along with the other accused, can only be passed, if from the evidence it appears during the trial that he too has committed an offence. In that case the prosecution witnesses have already been examined and the question for consideration was as to whether cognizance against the newly added person under Section 319, Cr. P.C. was justified in view of those statements. The learned Judge has referred to the definition of term 'evidence' given in Section 3 of the Evidence Act, 1872 and held that only on such evidence a Court can take action against a person not an accused during the inquiry into and trial of offence. Two witnesses had already been examined by the trial Court and as such the question as to whether without there being evidence recorded before the Court, new person can he added Under Section 319(1), Cr. P.C. was not the subject matter of discussion in the case.
9. In the case of Joginder Singh v. State of Punjab while discussing the scope and ambit of Sections 319(1), 193 and 209 and power under Section 319 it was held as under:
The expression 'any person not being the accused' occurring in Section 319 clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal court are included in the said expression.
10. In that case the power under Section 319 was exercised by the Sessions Court after two witnesses were examined by the Court and that order was challenged before Hon'ble the Supreme Court, discussing the provisions of Sections 193 and 209 of the Code and Section 207A of the Old Code, the order of the high Court confirming the order passed by the learned Additional Sessions Judge passed under Section 319, Cr. P.C. was approved. In that context, their Lordships used the term 'evidence coining during the trial'. However, the main point for consideration was whether a Sessions Court can add a person as an accused in the absence of any committal order having been passed against him.
11. In the case of Harish Chandra v. State of U.P. 1982 All LJ 331, the question of interpretation of Sections 319 and 193, Cr. P.C. came for consideration before the learned single Judge of the Court and the order summoning the person other than the accused passed by the Sessions Court before the commencement of trial was held to be without jurisdiction. According to his Lordship in Section 319(3) the word 'trial' relates to the Court of Session and the word 'enquiry' cannot relate to the Court of Session. As such, the learned Judge expressed that the word 'evidence' occurring in Sub-section (1) of Section 319 would not include the case diary and cannot mean anything except the evidence adduced during the trial of the case.
12. In the case of Gurnam Tanti v. State of Assam 1983 Cri LJ 289 (Gauhati) it was held that the word 'evidence' under Section 319 means the statements of the witnesses recorded by the Court and the same would not include a Police statement.
13. In the case of Mahaban v. State of U.P. 1986 Cri LJ 1454 (All) Police submitted charge-sheet against some accused and final report under Section 169, Cr. P.C. against the petitioners even though specific role was assigned to them in the report. At the stage of trial the informant was again examined and on his testifying about the active participation of the petitioners in the crime, the learned Sessions Judge summoned them under Section 319, Cr. P.C. The order of the Session Judge was upheld and reliance was placed on Joginder Singh's case 1979 Cri LJ 333 (SC) where in similar circumstances, persons not committed for trial were added as accused in exercise of power under Section 319, Cr. P.C.
14. Mr. R. K. Soni, learned Public Prosecutor and Mr S. R. Singhi. Intervener have emphasized that the above referred decisions indicate that power under Section 319 can be exercised only when the Court has before it the statements recorded in the Court during the course of inquiry into or trial of the offence.
15. Mr. Singhi has emphatically argued that the principle enunciated in Joginder Singh's case 1979 Cri LJ 333 (SC) has settled the position of law regarding the meaning of the term 'evidence' occurring in Section 319 and as the learned Judges deciding Sheoram Singh's case 1982 Cri LR (Raj) 657 have followed the law laid down in the case of Joginder Singh, an authoritative pronouncement of the Apex Court of the country, there remains nothing to be decided by this Court on the point.
16. Mr. N. L. Kukkar, learned Counsel for the petitioners on the other hand submitted that in the case of Joginder Singh evidence had already been recorded at the trial and for that reason their Lordships have used the term 'evidence" recorded at the trial and had no occasion to discuss the meaning of the term 'evidence' occurring in Section 319, Cr. P.C. As such Mr. Kukkar stressed that it is open to this Court to reconsider the view taken in Sheoram Singh's case.
17. It is pertinent to note that neither in Joginder Singh's case 1979 Cri LJ 333 (SC) nor in the subsequent decisions of the various High Courts referred to above, the meaning of the term 'evidence' was the subject-matter of discussion and decision. It is only in Sheoram Singh's case 1982 Cri LR (Raj) 657 that the learned Judges have elaborately discussed the meaning of the term' evidence' occurring in Section 319, Cr. P.C.
18. The Division Bench of this Court in Sheoram Singh's case 1982 Cri LR (Raj) 657 has held that the decision in Ajayab Singh's case 1978 Raj LW 9 as well as in Harji Ram's case 1979 Cri LR (Raj) 248 cannot be treated as good law so far as interpretation of Section 319, Cr. P.C. is concerned.
19. The learned Judges of the Division Bench were evidently of the view that there was no authoritative pronouncement regarding the interpretation or meaning of the term 'evidence' occurring in Section 319 of the Code.
20. In the case of Bagh Singh v. State of Rajasthan 1985 Cri LR (Raj) 417, the principle enunciated in the case of Sheoram Singh's case 1982 Cri LR (Raj) 657 was followed and the learned Judge held that the Magistrate considering Police report with record and taking cognizance against some offenders and after some time again taking cognizance against other accused on same evidence, had done so without jurisdiction.
21. The case of Sheoram Singh was followed by another Division Bench of this Court in the case of Mangilal v. State of Rajasthan 1986 (1) Judicial Surveyor 217 and it was held that the matter stands concluded by the Division Bench authority of Sheoram Singh's case laying down that statements collected by investigating agency under Section 161 or recorded by a Magistrate under Section 202(2) cannot form basis for taking cognizance under Section 319 and that the evidence must be taken during trial.
22. It is important to note that in Sheoram Singh's case the learned Judges were of the view that question of interpretation or meaning of the term 'evidence' as used in Section 319 was not the subject-matter of decision in the case of Joginder Singh (1979 Cri LJ 333) (SC). In para 36 of the judgment in Sheoram Singh's case 1982 Cri LR (Raj) 657 it has been observed as under:
Now coming to the various decisions referred to before us, it must be said at the very outset that the judgment of the Supreme Court in Joginder Singh v. State of Punjab is not a decision where there was any controversy about the interpretation or meaning of the term, "evidence" as used in Section 319, Cr. P.C. in order to find out whether it means the "police statement" recorded Under Section 161, Cr. P.C. or it can only mean the statements recorded by a Magistrate or a Court after filing of the challan. It is true that their Lordships have used the word "evidence recorded" at more than one place but although in Allahabad decision and Guj. decision and so also in the decision by Jammu and Kashmir High Court, reliance has been placed upon the use of the words, "evidence recorded" in Joginder Singh v. State of Punjab, we are of the opinion that Joginder Singh v. State of Punjab is not a decision which can clinch the issue as the question involved in the reference before us, was never raised, considered and decided by their Lordships of the Apex Court.
23. In para 62 of the judgment, the learned Judges have observed as under:
The result of the above discussion is that on a thorough examination of all the relevant provisions of the twin laws, the Indian Evidence Act and Code of Criminal Procedure, we hold that the term, 'evidence' as used in Section 319, Cr.P.C, means the statements of witnesses recorded before the Court during an inquiry or trial and does not include the statements recorded by the police under Section 161, Cr. P.C. or the statements recorded at the instance of the police by the Magistrate under Section 164, Cr. P.C. and the statement recorded by the Magistrate under Section 202(2), Cr. P.C. and the papers submitted by the police in the form of any other documents, simpliciter. However, it is made clear that the term, 'evidence' should not be confused with the term, 'proved' and the cognizance can be taken under Section 319, Cr. P.C. by a Magistrate or a Court of Session, as the case may be, even on the basis of single statement recorded before it, if the Court is of the opinion that the person against whom some material has come in that statement deserves to be called for facing trial and it would not be necessary at the stage to hold that the evidence proves the guilt against the accused as that would be the stage of final adjudication. In other words, like Section 190 or Section 228, Cr. P.C. if from the statement of single witness recorded by the Magistrate or the Sessions Judge during the inquiry or the trial, he is of the opinion that some person who has not been challaned or not committed or, both, still deserves to be called and summoned for facing trial as there is prima facie slightest evidence against him which may finally connect him with the crime then the Court would be empowered to summon him under Section 319, Cr. P.C. and put him into trial.
24. The observation in these two paras is a complete answer to the argument of Mr. R. K. Soni, learned Public Prosecutor and Mr. S. R. Singhi, Intervener, that the view taken in Sheoram Singh's case 1982 Cri LR (Raj) 657 that recording of statement before the Court is a pre-requisite of the exercise of power under Section 319(1), Cr. P.C. is based on Joginder Singh's case 1979 Cri LJ 333 (SC).
25. In the case of Lal Chand v. State of Haryana 1983 Cri LJ 1394, the Division Bench of Punjab and Haryana High Court and the Full Bench of the Patna High Court in the case of Sk. Latfur Rahman v. The State 1985 Cri LJ 1238 took the view that once a Court of competent jurisdiction, be it a Magistrate or Court of Session takes cognizance of the offence, it is not only within the Court's power to summon any one who, on the adequate material appears to it to be prima facie guilty of the said offence but indeed it is its duty to do so. It was further observed that a Magistrate trying a warrant case, when considering the question of the framing of the charge under Sections 239 and 240 can summon an offender as an additional accused without recording evidence, if he is satisfied on the basis of the report under Section 173 that a prima facie case is made out against him. Once it is so, there is no rationale whatsoever for holding that under identical and, in any case, similar power under Sections 227 and 228, the Court of Session would be denuded of the right to summon an additional accused. In that view of the matter their Lordships expressed that Section 319 of the Code is not a sole repository of power for summoning additional accused by a Magistrate or a Court of Session.
26. The question arising for determination in this reference is as to what is the meaning of the term 'evidence' occurring in Section 319(1) of the Code and whether a Court has power to add a person not being the accused for being tried together with other accused, without recording any statement in the Court, on the basis of the documents produced before it at the time of taking cognizance of an offence. As discussed above, in some cases the statements recorded by the Police and the documents filed along with challan and statements under Section 164 and Section 202(2) of the Code have been considered to be 'evidence' for the purpose of Section 319 of the Code. In certain cases the power of the Sessions Judge under Sections 227 and 228 of the Code has been discussed and it has been laid down that without resorting to Section 319 even, the Court is competent to add any person, not already an accused, in the array of the accused for trial. In Sheoram Singh's case 1982 Cri LR (Raj) 657 as stated earlier, the learned Judges have enunciated the principle that there is no power with the Court of Session to add an additional accused unless some statement is recorded in the Court. Their Lordships have drawn a distinction between the term 'evidence' occurring in Sections 226 and 319 of the Code. According to their Lordships the term "evidence" occurring in Section 226 is the proposed evidence which is to be taken into consideration for proceeding under Sections 227 and 228 of the Code, whereas in Section 319 the phraseology used is "where during the course of an inquiry into, or trial of, an offence, it appears from the evidence" meaning thereby that the evidence to be taken into consideration by the Court before proceeding under Section 319 should be the evidence recorded in the Court.
27. In order to understand whether the meaning of the term 'evidence' used in common parlance is not to be applied to the term 'evidence' used in Section 319 of the Code and a narrow interpretation of that word is required in the setting of that Section, we consider it necessary to discuss the meaning of the term 'evidence'. The dictionary meaning of the word 'evidence' is that which makes evident : means of proving an unknown or disputed fact : information in a law case. In common parlance, a matter of fact furnished in any legal proceedings is evidence. The attestation of the documents such as 'will' etc. is also evidence about the execution of the deed. So far as the term judicial evidence is concerned, there is no difficulty because it means the evidence received by the Court of Justice for the purpose of proving or disproving a fact. However, the term 'evidence' cannot in all cases be given a narrow and restricted interpretation so as to confine it to the phraseology of Judicial evidence. The reason is that in the criminal Code and other statutes the term 'evidence' has occurred and has to be interpreted with reference to the context. We, therefore, would try to understand the meaning of the term 'evidence' from the definition of the word given in Section 3 of the Evidence Act which is applicable to legal proceedings.
28. The definition of the term 'evidence' in Section 3 of the Evidence Act is as under : --
"Evidence" means and includes:
(1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters to fact under inquiry; such statements are called oral evidence:
(2) all documents produced for the inspection of the Court : such documents are called documentary evidence.
29. The learned Judges in Sheoram Singh's case 1982 Cri LR (Raj) 657 mostly dealt with the definition of oral evidence given in Clause (1) of Section 3 of the Evidence Act. The Police papers filed along with the challan and sent to the Court of Session when the case is committed fall within the ambit of documents produced for the inspection of the Court.
30. In the case of Ramnarayan Mor v. State of Maharashtra , meaning of the term 'evidence and documents' occurring in Section 207A of the Old Cr. P.C. was discussed and it was held that the opportunity contemplated by Section 207A(6) for the examination of the accused is for his benefit and solely for the purpose of enabling him, if he desires to do so, to explain circumstances against him from the oral evidence and also the documents referred to in Section 173(4). According to their Lordships the scheme of Section 251A which was brought on the statute book simultaneously with Section 207A by Act No. 26 of 1955 also furnished an indication that in the examination of the accused for enabling him to explain circumstances appearing in the evidence against him documents referred to in Section 173(4) cannot be excluded.
31. Discussing the provisions of the Sections their Lordships observed as under:
If opportunity may be given to an accused person before framing a charge under Section 251A(2) to explain circumstances appearing from the documents referred to in Section 173(4), it is difficult to see any ground on which the Magistrate holding an enquiry for commitment may be disentitled to do so under Section 207 A(6). It would be somewhat anomalous, if it were true, that in the enquiry before framing a charge against the accused in respect Of a charge for an offence which is triable by the Court of Session as well as by a Magistrate, two different rules relating to the examination of the accused would prevail, according as the accused is to be tried by the Court of Session, or by the Magistrate.
32. In Ajayb Singh's case 1978 Raj LW 9 statements recorded by the Police under Section 161 of the Code were taken to be documents falling in Clause (2) of the definition of the term 'evidence' in Section 3 of the Evidence Act. This proposition was followed in Harji Ram's case 1979 Cri LR (Raj) 248. Both these cases as stated earlier were not held to lay down correct proposition of law by the Division Bench decision in Sheo Ram Singh's case 1982 Cri LR (Raj) 657.
33. In Harji Ram's case, the learned Judge has opined that the term 'evidence' used in Section 319, Cr. P.C. includes the statements recorded by the Police under Section 161, Cr. P.C. and the documents submitted in the Court along with the challan. According to his Lordship while proceeding under Sections 226, 227 and 228 of the Code when the Sessions Judge has power to discharge the accused, he is equally empowered to proceed against those who are not before him as he is empowered to take cognizance under Section 193 when the case stands committed to him. The learned Judge has discussed the provisions relating to cognizance of offences by Court of Session and the principle enunciated in the case of Joginder Singh (1979 Cri LJ 333) (SC) relating to the provisions of Sections 193, 209 and 319, Cr. P.C. The power to proceed against an accused not before the Court emerges from the power to take cognizance of offence. Section 193 of the Code imposes a bar on the power of Sessions Court to take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. This section has undergone a significant change in the new Code. In the Old Code, the phraseology used in Section 193 was 'unless the accused has been committed to the Court of Session by a Magistrate duly empowered in that behalf. Under the new Code the case is committed to the Court of Session and not the accused. The whole case is thus before the Sessions Court and it is the duty of the Sessions Judge, to see who should actually be tried in the case.
34. The meaning of the term 'taking cognizance' under Sections 190(l)(b) and 251A of the Old Code was the subject-matter of discussion before Hon'ble the Supreme Court in the case of Raghubans Dubey v. State of Bihar where the learned Judges have explained the meaning of the term 'taking cognizance' as under:
In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.
35. The question of taking cognizance against persons not mentioned in the police report came for consideration in the case of Hareram Satpathy v. Tikaram Agarwala and following the principle enunciated in the case of Raghubans Dubey (1967 Cri LJ 1081) it was held as under:
Where the Magistrate after taking cognizance of the offence and perusal of the record and having been satisfied that there were prima facie grounds for issuing process against certain persons not mentioned in the police report, issued process against them, the Magistrate could not be said to have exceeded the power vested in him under law.
36. In Joginder Singh's case 1979 Cri LJ 333 (SC) their Lordships while referring to the case of Raghubans Dubey (1967 Cri LJ 1081) extracted the above referred observations and observed as under -
It will thus appear clear that under Section 193 read with Section 209 of the Code when a case is committed to the Court of Session in respect of an offence the Court of Session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused, the power under Section 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial Looking at the provisions from this angle there would be no question of reading Section 319(1) subject of subordinate to Section 193.
37. In view of the provisions of Section 319(1) the bar imposed by Section 193 goes away and the Sessions Court has power similar to that of a Magistrate to take cognizance of an offence.
38. It is significant to note that in Sheoram Singh's case 1962 Cri LR (Raj) 657 the main discussion is regarding the power of Sessions Court under Section 319(1) and the meaning of the word 'evidence' occurring in it. Section 319 in Chap. XXIV of the Code dealing with the General Provisions as to inquiries and trials. The procedure laid down in that Chapter is therefore, applicable to all criminal Courts and not restricted to the Court of Sessions. The arguments advanced by Mr. Singhi, the Intervener that, there is no inquiry in Sessions Court and, therefore, it is only after trial that the power under Section 319(1) can be invoked for the reasons to be presently given has no force.
39. The term 'inquiry' as defined in Section 2(g) of the Code means every inquiry other than a trial conducted under the Code by a Magistrate or Court. The term 'trial' had been the subject matter of discussion in a number of cases because of the difference of opinion regarding the stage when the trial begins.
40. In the case of Dagdu Govind set Wani v. Punja Vedu Wani AIR 1937 Bom 55 : 1937 (38) Cri LJ 250 it has been observed that in the Bombay Presidency 'trial' has always been understood to mean the proceeding which commences when the case is called on, with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and defence, if the accused be defended, present in Court for the hearing of the case.
41. In the case of R. R. Chari v. State there was a discussion regarding the provision of Section 271 of the Old Code relating to commencement of trial and it was held that Sub-section (1) of Section 271 is composed of the four ingredients, viz. (1) the Court being ready to commence the trial, (2) the accused appearing or being brought before the Court, (3) the charge being read out in Court and explained to the accused, and (4) the accused being asked whether he is guilty of the offence charged, or claims to be tried.
42. In the new Code it is Section 228 which provides the procedure for framing charge by the Sessions Judge. We, therefore, do not feel inclined to agree with Mr. Soni that the trial in the Sessions Court begins immediately after the case is committed and as such there being no evidence recorded in the Court provisions of Section 319(1) are not attracted.
43. In the case of State of Kerala v. Achutha Panicker 1975 Ker LT 703 a distinction between the term inquiry and trial has been drawn by observing that the trial of an accused person commences when he is called upon to plead to a charge and the proceeding up to the point of framing of the charge is in the nature of an inquiry. There is real distinction between trial and inquiry. The definition of inquiry in the Code puts it beyond doubt that an inquiry is different from trial and that the inquiry stops when the trial begins. The stage prior to the framing of the charge, be it in the Court of a Magistrate or the Court of Session is the stage of inquiry when the Court applies its mind to make out whether it should proceed with the trial or not. Under Section 227 of the Code a Court can discharge the accused. It is a pre-charge stage as after charge there would be no discharge rather it would be conviction or acquittal.
44. We are, therefore, of the opinion that in between the Sessions Court taking cognizance of the offence after committal of the case and the framing of charge, there is the stage of inquiry and the power under Section 319(1) can be invoked even prior to the Court proceeding under Section 228.
45. In Sheoram Singh's case 1982 Cri LR (Raj) 657, the learned Judges were of the view that the term 'evidence' in Section 226 is different from the term evidence used in Section 319(1) because in the former Section it is the proposed evidence which is stated by the Prosecutor while opening the case. That will not in our view mean that a narrow interpretation not in consonance with the definition of the term evidence given in Section 3 of the Evidence Act should be given to the term 'evidence' occurring in Section 319(1). It is important to consider that the whole record of the case and the documents submitted t herewith are to be looked into by the Court Under Section 227. If the Court can discharge an accused on the basis of the record of the case and the documents produced before it under Section 226, it would be anomalous to hold that those documents could not be taken into consideration by the Court for proceeding against a person not an accused in the committal order. Once the Court takes cognizance of the offence in a case reaching the Sessions Court on committal by the Magistrate, the whole case is before the Court and it is not only the power of the Court to find out the persons who should be tried for the offence but it is also its duty to make out from the record of the case and the documents submitted therewith as to who actually are the persons against whom there is material to suggest that prima facie they are involved in the offence and should be added and tried in the case. In other words, the case being committed to the Court of Session, the Sessions Judge takes cognizance of the offence and not of the offender mentioned in the committal order and there is wide power with the Court to proceed against persons not named in the committal order but against whom the record and the documents before the Court at the stage of proceedings under Sections 227 and 228 of the Code prima facie suggest their involvement in the matter.
46. To strengthen our view we may refer to the following observations relating to the provisions of Sections 193, 209 and 319 in Joginder Singh's case 1979 Cri LJ 333 at P. 337 (SC):
It is true that there cannot be a committal of the case without there being an accused person before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once 'the case in respect of the offence' qua those accused who are before the Court is committed then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of Section 193 would be out of the way and summoning of additional persons who appear to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it; otherwise the conferral of the power under Section 319(1) upon the Sessions Court would be rendered nugatory. Further Section 319(4)(b) enacts a deeming provision in that behalf dispensing with the formal committal order against the newly added accused. Under that provision it is provided that there the Court proceeds against any person under Sub-section (1) then 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; in other words, such person must be deemed to be an accused at the time of commitment because it is at that point of time the Sessions Court in law takes cognizance of the offence.
47. It is to be noted that in Joginder Singh's case their Lordships were dealing with a case where evidence had been recorded at the trial before proceeding under Section 319(1) and therefore, in the phraseology evidence led at the trial should be understood in that context.
48. In Sheoram Singh's case 1982 Cri LR (Raj) 657 definition of the term 'evidence' in Section 3 of the Evidence Act has been referred and made basis of the conclusion arrived at while construing the meaning of the term 'evidence' occurring in Section 319(1). But the whole discussion appears to be regarding the provisions of only Clause (1) only and not Clause (2) of that Section. Clause (2) brings all documents produced for the inspection of the Court in the ambit of documentary evidence i.e. the documents brought on record during the course of investigation and produced before the Court for consideration during the course of inquiry. The definition of the term 'investigation' in Section 2(h) of the Code is that it includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a magistrate in this behalf. The statements recorded under Sections 202(2) and 164 form part of the record submitted to the Court of Sessions Judge when the case is committed to it and we find no reason why that material would not be evidence by virtue of CL (2) of Section 3 of the Evidence Act.
49. If the term 'evidence' is narrowly construed then on the same reasonings the provisions of Section 313 would be nugatory because under Clause (a) of Sub-section (1) of that Section, in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstance appearing against him the Court may at any stage, without previous warning to the accused, put such questions to him as the Court considers necessary. The term 'at any stage' would include the stage prior to the recording of the statements of the witnesses and as such the term 'evidence' will have to liberally construed for the purpose of Clause (a) of Section 313(1) of the Code.
50. The submission of Mr. Soni and Mr. Singhi that the decision in Joginder Singh's case 1979 Cri LJ 333 (SC) has set at rest the controversy relating to the term 'evidence' occurring in Section 319 because their Lordships have used the word 'evidence' recorded at the trial in Para 8 of the judgment, is not appearing, because, as stated earlier, in the matter before their Lordships evidence of two witnesses had already been recorded by the Sessions Judge and their Lordships were looking to the case from that angle. The important part of the judgment throwing light on the question emerging for determination before us is the observation that once the Sessions Court proceeds as a result of the committal order against some accused, the power under Section 319(1) comes into play. As discussed by us above, the cognizance of the case is taken by the Sessions Judge as soon as the case comes before it on committal and the Court proceeds under Section 226, Even in Sheoram Singh's case in Para No. 36, reproduced by us earlier, the learned Judges were of the opinion that the judgment of the Supreme Court in Joginder Singh's case was not decision where there was any controversy about the interpretation or meaning of the term evidence as used in Section 319 of the Code.
51. Section 319 does not impose any restriction for the exercise of power by the Court under that Section during the course of trial only. It rather empowers it to proceed under that provision even during the course of inquiry into the matter. Sections 226, 227 and 228 of the Code relate to the inquiry stage before the Sessions Court. We respectfully disagree with the view taken by the Division Bench in Sheoram Singh's case that without there being any statement recorded by the Court, the Sessions Judge has no power to proceed against a person not an accused in the committal order, because, as discussed earlier, in our opinion while exercising powers under Section 227 relating to the discharge of an accused, the Court has not only the power but also a duty to embark on an inquiry by carefully perusing the documents coming before it and to search out from the record and the documents submitted before it as to whether any person other than those before the Court prima facie appears to be in any way involved in the crime and should be tried along with the accused already there before the Court. In doing so, the procedure laid down in Section 319 would be followed and by virtue of the deeming provision of Sub-section (4)(b) of that Section, the case would proceed as if such person had been an accused person when the Court took cognizance of the offence upon which inquiry or trial was commenced. Thus, the meaning of the term 'evidence' appearing in Section 319 would be construed as it is ordinarily done and would not be narrowly construed so as to mean only statements recorded before the Court. Restricting the scope of Section 319 would fetter the discretion of the Court with the limitation that despite there being material it cannot proceed against a person against whom there appears to be a prima facie case unless charge under Section 228 is framed and some evidence is recorded thereafter.
52. To strengthen our view we would refer to the discussion of aims and objects for the new provision of Section 319(1) of the Code being incorporated by redrafting the provision of Section 351 of the Old Code referred to in Joginder Singh's case 1979 Cri LJ 333 (SC). The relevant portion is that the Law Commission felt that the main purpose of this particular provision that the whole case against all known suspects should be proceeded with expeditiously and convenience required that cognizance against newly added accused should be taken in the same manner as against the other accused and the Law Commission, therefore, proposed that a new provision should be incorporated providing that there will be no difference in the mode of taking cognizance if a new person was added as an accused during the proceedings and that is how Clause (b) of Sub-section (4) of Section 319 came to be enacted which incorporated a deeming provision.
53. The cognizance against the accused already before the Court is taken on the basis of the material produced along with the challan or available to the Court from the statements under Section 202(2) and in Sessions cases from the record and documents coming before the Court along with the committal order. If the cognizance against the new person to be added may be taken in the same way as against those already before the Court, then there is no reason why the documents before the Court at the inquiry stage should not be taken into consideration. It would be a strange anomaly to expect the Court to wait for some statement, to be recorded despite its conclusion on application of mind to the record that it is necessary to proceed against some person not already before the Court.
54. Section 319(1) is to be pressed into service upon the prima facie satisfaction of the Court and if the Court is satisfied that there is material to proceed under Section 319(1) then there is no necessity for postponing action under that Section till some statement is recorded. Cases are not rare where at the initial stage after taking cognizance of the case. Court may think it necessary to summon a person in the dock and proceed against him under this Section. For example if the names of certain persons appear in the dying declaration of the victim or in the statement under Section 164 and the Court has to wait till the statements of witnesses relating to such document or evidence being recorded in the Court, it would be not only wasting the time of the Court and delay in the trial, but may also prejudice the interest of either party. In such a case waiting for some statement in the Court would frustrate the very purpose of the enactment of this Section. The requirement of first recording the statements of the witnesses in the Court before proceeding under Section 319(1) would only be in cases where from the statements recorded in the Court alone, the Court is in a position to make out that there is necessity for adding new person in the trial. When the Legislature while enacting Section 319(1) has used the term 'evidence' only and not the evidence recorded in the Court, the meaning of the word should be understood in its generic sense. Courts Should read and interpret the Section as it is. No canon of construction permits the Court to interpret a section in such a manner as to render it to some extent otiose. Section 319(1) vests in the Court power to correct the error of the investigating agencies if it appears that there is some flaw in proceeding only against come persons and dropping others. Such a power is meant to check the unbridled power of the investigating agency in determining the guilt or innocence of the suspects. The interpretation, of the word 'evidence' in Section 319(1), we are inclined to make, would help the Courts to put up the offender in the dock at the earliest stage possible.
55. In view of the above discussion, we regret to disagree with the view taken by the Division Bench of this Court in the case of Sheoram Singh (1982 Cri LR (Raj) 657) that recording of statement in the Court is a prerequisite for proceeding under Section 319(1) of the Code and adding a person as an accused. We would however like to add that the extraordinary power conferred on the Court by this Section should be sparingly used and of the Court intends to exercise such a power on the basis of documents placed before it prior to recording any statement there must exist compelling reasons for doing so. We, therefore, approve the view taken in Ajaib Singh's case 1978 Raj LW 9 and followed in Harjiram's case 1979 Cri LR (Raj) 248.
56. Regarding the prayer of the petitioners in the present petition for quashing the proceedings and charge-sheet against them, suffice it to say that this was neither the question involved before the Court while passing the impugned order nor has any ground been taken or argument advanced on the point in this Court and therefore, this prayer requires no consideration.
57. Resultantly, the petition is allowed in the way that the impugned order dated June 19,1986 passed by the learned Sessions Judge, Sri Ganganagar is set aside with the direction that the learned Sessions Judge shall rehear the parties on the application under Section 319 of the Code in accordance with the view expressed by us in this Order.