Rajasthan High Court - Jaipur
Abdulla vs State Of Raj Asthan Through Pp on 11 April, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT ABDULLA VS. STATE OF RAJASTHAN AND ORS. S.B. Criminal Revision Petition No. 381 of 2011 under section 397 read with section 401 Cr.P.C. against the order dated 3.3.2011 of Additional Sessions Judge Fast Track No.2 Jhunjhunu in Sessions Case No. 41/2010 (25/2010) rejecting the application of the complainant through APP under section 319 Cr.P.C. Date of Order : April 11 , 2012 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. M.K.Jain, for the petitioner Mr. Shailendra Balwada for the non-petitioners 2 to 4 Mr. Pradeep Shrimal, PP for the State. --- REPORTABLE BY THE COURT :
This criminal revision has been filed under section 397 read with section 401 Cr.P.C. by the complainant petitioner against the order dated 3.3.2011 of Additional Sessions Judge Fast Track No.2 Jhunjhunu in Sessions Case No. 41/2010 (25/2010) rejecting the application of the complainant through APP under section 319 Cr.P.C.
2. Brief facts of this criminal revision petition are that on 30.12.2009 the complainant petitioner lodged a written report at Police Station Kotwali Jhunjhunu against four accused persons namely Mohd. Altaf, Naajra, Mohd. Usman and Mohd. Ramzan regarding an incident of committing murder of daughter of complainant namely Rukaiya and her three minor children in the night of 29/30.12.2009. On the basis of this report, the police registered a criminal case bearing FIR No. 428 of 2009 for offence under sections 302, 306/34 IPC and investigation commenced. The police conducted investigation and after completion of investigation, submitted challan only against three accused persons namely Mohd. Altaf, husband of deceased, Mehrunisha and Rani @ Noorjaha. In the FIR the complainant petitioner has specifically mentioned the names of Usman, Naajra and Ramzan and there is allegation also against these accused persons that these persons were also involved and these accused persons alongwith others have committed murder of daughter of complainant alongwith her three minor children. In the statements recorded under section 161 Cr.P.C. during investigation there were allegations against these three accused persons about their involvement in the crime but the police has not properly and fairly investigated the matter and in collusion with these accused persons has not filed charge sheet against these accused persons. The case being exclusively triable by the Court of Sessions, hence the case was committed to the court of Sessions Judge, Jhunjhunu and ultimately the case came to be tranfsered in the court of Additional Sessions Judge Fast track No.2 Jhunjhunu for trial. The trial court after hearing the arguments on charge, framed the charges against the charge sheeted accused persons namely Mohd. Altaf, husband of deceased, Mehrunisha and Rani @ Noorjaha and the said accused persons denied the charges and claimed to be tried. During trial, statements of two prosecution witnesses namely PW.1 Abdulla and PW.2 Farukh Ahamed were recorded. It has been stated in the petition that in their statements PW.1 and PW.2 have specifically and clearly stated that the deceased Rukaiya and her three minor children have bgeen murdered by the accused persons namely Altaf, Usman Naajra and Ramzan and stated that he accused persons namely Usman, Naajra and Ramzan have been fully involved and have also fully participated in the incident. On 2.8.2010 the complainant petitioner through APP moved an application under section 319 Cr.P.C. before the trial court stating therein that from the statements of the prosecution witnesses PW.1 and PW.2 recorded during trial as well as other material available on record there is ample evidence against the accused persons namely Usman, Naajra and Ramzan therefore they may be impleaded as an accused alongwith co-accused persons, who are already facing trial and prayed for taking cognizance of offence against these three persons for offence under sections 302 and 120 B IPC. The trial court heard the arguments and after considering the material and the evidence of PW.1 and PW.2 illegally and wrongly dismissed the application under section 319 Cr.P.C. vide order dated 3.3.2011.
3. The learned counsel for the petitioner has argued that the court below has committed serious error of law as well as fact in dismissing the application under section 319 Cr.P.C. It is stated that in the court statements the prosecution witnesses PW.1 and PW.2 there was specific evidence that the accused persons namely Usman, Naajra and Ramzan were also involved in the incident of committing murder of daughter of the petitioner Rukaiya and her three minor children. In the FIR the complainant petitioner has specifically mentioned the names of Usman, Naajra and Ramzan and there is allegation also against these accused persons that these persons were also involved and these accused persons along with others have committed murder of daughter of complainant along with her three minor children. The learned counsel for the petitioner has argued that section 319 Cr.P.C. clearly goes to show that 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. It is further stated that during trial ample evidence has come on record which clearly shows the involvement of the accused persons namely Usman, Naajra and Ramzan in the incident.
4. Mr. Pradeep Shrimal, Public Prosecutor for the State and Mr. Shailendra Balwada, learned counsel appearing for the non-petitioners 2 to 5 have categorically opposed the arguments of the learned counsel for the complainant. They have stated that the trial court after considering the material and the evidence available on record, rightly rejected the application of the complainant petitioner under section 319 Cr.P.C. There is no direct evidence against the non-petitioners 2 to 5 so as to connect them with the crime.
5. I have heard Mr. M.K. Jain, learned counsel for the petitioner, Mr. Shailendra Balwada, learned counsel appearing for the non-petitioners No.2 to 5 and Mr. Pradeep Shrimal, Public Prosecutor appearing for the State of Rajasthan and have also gone through the order dated 3.3.2011 and the material placed on the record of this case.
6. Before proceeding further it would be necessary to have a look at section 319 Cr.P.C., the same reads as under :
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 the witnesses reheard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.
The ambit and scope of the power of the court under Section 319 of the Code has come up for consideration before the Apex Court in Joginder Singh v. State of Punjab (1979) 1 SCC 345 : 1979 SCC (Cri) 295 the Apex Court held that the power conferred under Section 319(1) of the Code is applicable to all courts including a Sessions Court and the court has power to add any person, not being the accused before it, against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.
In MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1 : 1983 SCC (Cri) 115 the Apex Court held as under: (SCC para 19)
19. 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. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against Respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.
In Michael Machado v. CBI (2000) 3 SCC 262 : 2000 SCC (Cri) 609 the Apex Court on extensive consideration of the provision contained in Section 319 stated as follows: (SCC paras 11-12 & 14)
11. The basic requirements for invoking the above section are that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.
12. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.
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14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.
In Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738 : 2002 SCC (Cri) 1203 the Apex Court considered the scope of Section 319 of the Code at p. 743 of the Report in the following words: (SCC para 9)
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.
In Krishnappa v. State of Karnataka (2004) 7 SCC 792 : 2004 SCC (Cri) 2093 the Apex Court reiterated what has been repeatedly stated that: (SCC p. 794, para 6)
6. the power to summon an accused is an extraordinary power 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.
In Palanisamy Gounder v. State 2005) 12 SCC 327 : (2006) 1 SCC (Cri) 568 this Court referred to two earlier decisions of this Court in Michael Machado (supra) and Krishnappa (supra) and observed that power under Section 319 of the Code cannot be exercised so as to conduct a fishing inquiry.
In Guriya v. State of Bihar (2007) 8 SCC 224 : (2007) 3 SCC (Cri) 521 most of the above decisions were referred to and it was observed that the parameters for dealing with an application under Section 319 of the Code have been laid down in these cases.
7. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of Apex Court is this:
(i) The court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.
(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.
(iii) The phrase any person not being the accused occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.
(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word evidence in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.
(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The court must also be satisfied that circumstances justify and warrant that 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 the constraints imposed in Section 319(4) that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial.
(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.
8. In the light of the principles enunciated by the Apex Court, I have looked into the order of the Addl. Sessions Judge dated 3.3.2011 and the evidence of PW.1 and PW.2 statements recorded before the court.
In his statement before the court PW.1 Abdulla stated thus -
"?????? ?? ??????? ????? ?? ???? ???? ????? ?? ????? ?? ??????? ?? ???? ??? ????? ?? ?? ?????? ??? ??? ??? ?? ????? ???? ???? ?? ???? ???? ??? ?? ????? ?? ???? ?? ????? ?? ?? ???? ??? ????? ??? ???? ?????? ?? ??? ??? ?? ?? ?? ?? ??? ????? ???? ???? ???? ? ??? ??, ???? ??? ???? ?? ??? ??????? ?? ???? ?????? ?? ???? ??????? ? ??? ?? ?? ?? ??? ???? ?? ?? ?? ?? ?????? ??????? ?? ??? ?? ?? ???? ?? ?????? ?? ??? ??????, ????, ????, ?? ???? ?? ???? ???? ?? ???? ??? ?? ? ?????? ?? ?? ???? ?? ????? ?? ?????? ?? ?????? ?? ?? ?? ?? ?????? ?? ?? ??? ?? ???? ?? ?? ?? ???? ??? ?? ????? ????? ??? ??? ?? ???? ???? ???? ??? ?? ?? ?? ???? ??? ?? ????? ????? ????? ??? ?? ???? ???? ???? ??? ?? ???? ????? ?? ??????? ?? ?? ???"
??? ???? ?? ?? ?? ??????, ????? ,(?????? ?? ????) , ????? (?????? ?? ???) ????? ?? ??????? ?? ???? ?? ??????? ???? ????? ?????? ?? ?? ?? ?? ?? ?????? ?? ???? ??? ?? ??? ?????? ??????? ???"
In his statement before the Court PW.2 Farooq Ahmed stated thus -
29.11.09 ?? ?????? ???? 1 ?? 2 ??? ???? ?????? ???? ?????? ?? ???? ?? ??? ????? ?? ??? ??? ?? ?? ?????? ?? ????? ?????? ???? ?? ?? ?????? ? ???, ?? ?? ??????? ?????? ?? ???? ???? ?????? ?? ?? ?? ??????? ?? ???? ???? ???? ??? ????? ?????? ?? ??? ??? ?? ?? ????? ?? ??? ??? ???? ???? ??? ?? ????? ??? ??? ???? ??? ???0 ????? ?? ???????? ????? ??? ???? ?????? ??? ???? ?? ???? ??? ???? ??? ??? ?? ???? ????? ?? ?????? ?? ??? ???? ??? ???????? ?? ?? ?? ????? ?? ??? ???? ??? ???? ??, ?? ?? ?? ?????????? ?? 3-4 ??????? ???? ????? ??? ?? ?????? ??????? ??? ??????, ??????? ?? ???? ?????? ?? ???? ?????? ????? ?? ?????? ?? ?? ?? ????? ??? ?????????? ?? ?? ?? ???? ??? ???? ??? ?? ?? ???? ?? ????? ???? ?? ????? ?? ???? ???
In relation to the statements of PW.1 and PW.2, the Addl. Sessions Judge observed as under :
???????? ?? ????? ???????? ???? ??0?0-1 ??????? ? ??0 ?0-2 ????? ???? ?? ?????? 29.12.09 ?? ??? ?? ???? 1 ??? ??????? ?? ????? ?????? ?????? ??? ???? ?? ??? ?? ?????? ?? ???? ????? ?? ??0?0-1 ??????? ???? ???? ?????, ?????? ?? ?? ???? ?? ?????? ??????? ?? ??? ????? ???? ?? ?? ??0?0-1 ?? ?????? ?? ?????? ?????? ?? ??????? ?? ??????? ?? ????? ?????? ????? ???? ?? ?? ?????? ? ???? ??? ????? ?? ?? ??????? ??? ??? ??? ??? ??? ?????? ?? ?? ???? ?? ????? ?? ?????? ?? ??????? ?? ?? ? ? ???? ?????? ?? ??? ???? ??? ???? ?? ?? ?? ???? ??? ?? ????? ????? ??? ??? ?? ???? ???? ???? ??? ?? ? ?? ?????? ???????? ?? ????? ?????? ?????? ??? ?? ?????? ? ???? ?????? ?? ??????, ????? ? ????? ?????? ??? ?? ???? ??? ?? ?? ????? ??? ?? ?????? ? ?? ?? ???? ?? ?????? ?????? ??? ?? ??? ???? ?? ?????? ??? ?? ???? ?? ???? ?? ?? ??? ??? ?? ????? ?? ?????? ?? ???? ??? ??? ?? ?? ??? ???? ?? ?? ?? ??????,??????, ????? ??? ????? ??????? ???? ????? ?? ??? ???? ???? ??? ???? ?? ???????? ?? ?? ????? ????? ????????? ??? ????? ?????? ?? ???? ?? ??? ?????? ??? ?? ?? ???? ?? ?? ?????????? ?? ??? ?? ??? ?? ?? ??? ??????? ??? ?? ?????? ?? ???? ?? ????? ??? ?? ???? ????? ????? ????????? ?? ????? ??? ???? ?? ?????????? ???? ???? ?? ?? ??????? ??-1 ??? ???? ???? ?? ????? ??? ???, ????? ????? ?? ??????? ??-1 ??? ???? ???? ???? ???? ??? ????? ???? ???? ?? ???? ??? ????? ?? ?????? ????? ????? ????????? ??? ???? ????? ?? ?? ??? ?? ??? ?????? ???? ???? ??? ?? ????? ????? ???? ???? ??? ????? ????? ?? ??? ???? ????? ?? ??? ???? ?? ???? ????? ??? ?? ?? ?????? ??????? ???
???? ?? ??0?0-2????? ???? ?? ?????? ?? ?? ????? ??? ?????? ?? ????,? ???? ???? ?????? ??? ?????? ??? ???? ?? ????? ?????? ??? ???? ?????? ??? ???? ?????? ?? ????? ?? ??? ?? ???? ????? ??? ?? ?????? ?? ???? ????? ?? ?? ???? ???? ??? ??? ???? ??? ??0 ????? ?? ???????? ??? ???? ?? ???? ??? ??? ???? ????? ?? ?????? ?? ???? ?? ????? ? ?? ???????? ?? ??? ???? ??? ???? ??? ?????? ?? ?????? ?? ???? ??????? ?????? ???? ????? ?????? ?? ?? ?????? ??????? ?? ?????? ?? ??? ???
I am in agreement with the findings arrived at by the Addl. Sessions Judge and in my view on a bare perusal of the statements of the PW.1 and PW.2 there is no direct evidence against the non-petitioners 2 to 5 to connect them with the crime and the Addl. Sessions Judge has rightly rejected the application under section 319 Cr.P.C. as per the principles enunciated by the Apex Court quoted above.
9. For these reasons, the criminal revision petition filed by the complainant petitioner is rejected being devoid of merit. The stay application also stands dismissed.
(M.C. SHARMA )J. OPPareek/ All corrections made in the judgment/order have been incorporated in the judgment/ order being emailed (O P Pareek) PS-cum JW