Karnataka High Court
Abdul Khader vs State Of Karnataka on 25 November, 1998
Equivalent citations: 1999(1)ALT(CRI)558, 1999CRILJ1801, ILR1999KAR1243, 1999(2)KARLJ311
Author: B.K. Sangalad
Bench: B.K. Sangalad
ORDER
1. The petitioner being aggrieved by the order dated 20-11-1997 passed by the learned Prl. Sessions Judge, Raichur, in Special Case No. 10 of 1996, on LA. II this revision is filed.
2. One person by name Sri Kristappa, son of Siddramappa of Aran-sanagi Village lodged a complaint on 24-12-1994, on the allegation that the accused by name Amjad Ali, working as a village accountant at Kadlur Village, demanded illegal gratification of Rs. 300/- from him for change of katha. According to the complainant he paid a sum of Rs. 300A and there was again demand by the accused for further amount of Rs. 300/-. But the complainant told the accused that as he had already paid Rs. 300/- he could do the needful. However, the case came to be registered in Crime No. 13 of 1994 by the Inspector, Lokayuktha, Raichur, for offence punishable under Sections 7 and 130(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The police recorded the statement of the complainant and other witnesses. The petitioner is also examined as C.W. 13. Ultimately, the police filed the charge-sheet against the said Amjad Ali and the case came to be registered as Special Case No. 10 of 1996 on the file of the learned Principal Sessions Judge, Raichur.
3. The learned Public Prosecutor filed an application LA. II under Section 319 of the Cr. P.C. to implead the petitioner as one of the accused in the said case, on the ground that there are allegations against him for having participated in the commission of the offence. This application was allowed by the Court and the summons were issued to the petitioner to appear before the Court on 8-10-1998. Being aggrieved by this order, the present revision arises.
4. Mr. V.T. Rayareddy, learned Counsel for the petitioner submitted that this order is not sustainable as no evidence is commenced by the Court. According to him under Section 319 the Court can exercise its jurisdiction only after the commencement of the evidence. On the basis of the statements recorded by the police under Section 161 of the Cr. P.C., the Court cannot act and issue the summons to the additional accused and also relied upon a decision in case of Pukhraj v State of Rajasthan and in case of Mrs. Nachal v State of Tamil Nadu . On the other hand Mr. Pavin, learned Government Advocate supported the order.
5. In the light of these submissions now it is to be seen whether there are any grounds to interfere with the order of the lower Court. The lower Court has raised this point namely, "Whether the Court has got power to summon the additional accused only on the basis of the statement of the witness recorded by the police, or whether the evidence of the witness is necessary to issue summons to the additional accused". The lower Court has taken into consideration the decisions namely, in case of Smt. Minati Das v Radhakanta Patra and Kishan Singh v State of Bihar . Relying upon these decisions the impugned order is passed.
6. According to Mr. V.T. Rayareddy, the Court can issue summons to the additional accused only after commencement of the evidence and after being satisfied that there are grounds to proceed against the additional accused. The plain reading of Section 319 of the Cr. P.C. makes it clear. According to the Evidence Act, the definition of "Evidence" is as follows:
"(1) All statements which the Court permits or required to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence".
On this aspect, the Madras High Court has elaborately dealt with in the case of Mrs. Nachal, supra. In case of Pukhraj, supra, it is clearly held that Section 319 is attracted only after the commencement of the evidence. It has also referred the decision in case of Municipal Corporation of Delhi v Ram Kishan Rohtagi and Others and it has come to the conclusion that the power under Section 319 should be sparingly used only if compelling reasons exist for taking cognizance against the other person against whom the action has not been taken.
7. It is manifestly made clear in the case of Mrs. Nachal-petitioner. It is stated as follows.-
"Complicity of petitioner as mentioned in Statements under Section 161 and FIR cannot be taken into consideration as evidence. The "evidence" under Section 319(1) of the Cr. P.C. for the formation of opinion for proceeding against a person not being an accused is the evidence brought on trial. Therefore the "evidence" produced at the inquiry or trial will not include statements made to police under Section 161 of the Cr. P.C., and the materials collected during the investigation. It is true that the word "evidence" is used in Sections 173(8) and 226 of the Cr. P.C. But the evidence mentioned in those sections is not the evidence recorded during inquiry or trial and it refers only to materials collected during investigation. They are not described as evidence during the enquiry or trial as contemplated under Section 319(1) of the Cr. P.C., but states otherwise. The use of the word "evidence" in Sections 173(8) and 226 of the Cr. P.C. could only be the result of legislative inadvertance, and the evidence is available, or materials collected during investigation are not items of evidence coming within the scope of Section 319(1) of the Cr. P.C. Those provisions cannot have the effect of including police statements within the meaning of "Evidence" in the course of any inquiry or trial mentioned in Section 319(1) of the Cr. P.C. Therefore, the complicity of the petitioner, as mentioned in the statement under Section 161 of the Cr. P.C. and FIR cannot be taken into consideration as evidence as mentioned in Section 319(1) of the Cr. P.C.".
Further it is observed in paras 11 and 12 as follows:
"11. The "evidence" under Section 319(1) of the Cr. P.C. for the formation of opinion for proceeding against a person not being an accused is the evidence brought on trial. Therefore the "evidence" produced at the enquiry or trial will not include statements made to police under Section 161 of the Cr. P.C. and the materials collected during the investigation. It is true that the word "evidence" is used in Sections 173(8) and 226 of the Cr. P.C. But the evidence mentioned in those sections is not the evidence recorded during inquiry or trial and it refers only to materials collected during investigation. They are not described as evidence during the enquiry or trial as contemplated under Section 319(1) of the Cr. P.O., but states otherwise. The use of the word "evidence" in Sections 173(8) and 226 of the Cr. P.C. could only be the result of legislative inadvertance, and the evidence available, or materials collected during investigation are not items of evidence coming within the scope of Section 319(1) of the Cr. P.C. Those provisions cannot have the effect of including police statements within the meaning of "Evidence" in the course of any inquiry or trial mentioned in Section 319(1) of the Cr. P.C.
12. Thus, it is clear that Section 319 of the Cr. P.C. which is an enabling provision, can be invoked only if the evidence surfaces, in the course of inquiry or trial disclosing the complicity of a person or persons other than person or persons already arrayed as accused before Court. So in the light of the above principles, I have no hesitation, to hold that the complicity of the petitioner, as mentioned in the statement under Section 161 of the Cr. P.C. and FIR cannot be taken into consideration as evidence as mentioned in Section 319(1) of the Cr. P.C.".
In case of Kishan Singh, their Lordships have held that in the absence of any evidence led before the Sessions Court Section 319(1) though not attracted, Sessions Court can summon additional accused by invoking Section 193 of the Cr. P.C. But in the case on hand the case is not committed by the Magistrate to the Court of the Sessions. Pointedly, in this case it is held as follows:
"Court has got power to issue summons to the additional accused, even though no evidence was led before the Court and trial was not commenced. Even the persons not shown in the police report as all accused, cannot be summoned under Section 319 but the Court has got power to do so under Section 193 on the basis of documents on record. It has been held that there is no necessity for the Court to issue summons to the additional accused, only after recording the evidence or during trial. In view of the said ruling, it can be said that the summons can be issued to the additional accused only on the basis of statement of the witness recorded by the police under Section 161 of the Cr. P.C.".
In the case of Nisan and Another v State of Uttar Pradesh, it is held as follows:
"(B) Criminal Procedure Code (2 of 1974), Section 319(1) --Power under--To proceed against other persons appearing to be guilty of offence -- Can be exercised only when involvement of such persons comes to light in course of evidence recorded during enquiry or trial and not prior to that stage".
It is further made clear in para 8 as follows:
"8. As regards the second contention of the appellants it must be said that in view of the plain and unambiguous language of Section 319 of the Code, the earlier quoted reason which weighed with the High Court in sustaining the order of the learned Judge is patently incorrect. The power under Section 319(1) can be exercised only in those cases where involvement of persons other than those arraigned in the charge-sheet comes to light in the course of evidence recorded during the enquiry or trial. As that stage has not yet reached the appellants could not have been summoned invoking Section 319 of the Code".
After perusal of these decisions it boils down to this point namely, that the Court is empowered to take cognisance and issue summons to the additional accused only after the commencement of the evidence and that too if there is any evidence to proceed against this accused. The statement recorded under Section 161 of the Cr. P.C. by the police cannot be made use of. In the case on hand, the evidence is not yet commenced. Even the charge is not framed. Before framing of the charge the Public Prosecutor has filed an application under Section 319 of the Cr. P.C. and the Court has made use of the statements recorded under Section 161 of the Cr. P.C. This is patently illegal and uncalled for. However, the Court is not prevented from proceeding to issue summons to the additional accused if it has. transpired after recording the evidence. In the light of this observation, the following order is passed:
In the result, the revision is allowed and the impugned order is set aside.