Kerala High Court
Paulose And Ors. vs State Of Kerala on 28 September, 1989
Equivalent citations: 1990CRILJ100
JUDGMENT S. Padmanabhan, J.
1. Cognizance, whether it be under Section 190(1) of the Code of Criminal Procedure or under any other Statute, is only of the offence and not the offender or offenders. Whether on complaint or on police report or upon other information or knowledge, what is required for taking cognizance" is only reception of facts which constitute offence. It can be against known or unknown persons or both as the definition of 'complaint' in Section 2(d), Cr.P.C. indicates. All the offenders or their identities may not be before court when cognizance is taken. In such cases court has not only the right but also the duty to find out the persons involved. That is one of the purposes of compliance of Section 200 or if necessary 202 and the power to order investigation under Sections 156(3), 202(1) or further investigation under Section 173(3). Even before framing charge the court can summon an offender as an additional accused if it is satisfied of a prima facie case against him from the records. Section 319, Cr.P.C. is not the sole repository of the power of court in that respect. Section 319 operates only in a narrow field where trial has proceeded or enquiry commenced. Section 319 is designed to meet the specific and limited situation of a court discovering in the midst of a trial or enquiry from the evidence recorded that some additional accused should also be tried together with the persons already before it. It has no relevance to the pre-trial or pre-enquiry stage (Sk. Latfur Rahman v. State, 1985 Cri LJ 1238 (Pat) (FB).
2. Section 319 really confers an extraordinary power on criminal courts. It should be used only very sparingly if compelling reasons exist for taking cognizance against one who was not brought to limelight even though elaborate investigation was over (Joginder Singh v. State of Punjab, AIR 1979 SC 339 : (1979 Cri LJ 333), S.S. Khanna v. Chief Secretary, Patna, AIR 1983 SC 595 : (1983 Cri LJ 1044) and Naryanan Nambiar v. State of Kerala (1987) 1 Ker LT 871 : (1989 Cri LJ NOC 8). In normal cases a complainant may also be aware of the identity of persons who perpetrated the crime against him. Resort to Section 319(1) in a complaint case or police report may arise only when involvement of new persons for the first time come to light by the evidence brought in during inquiry or trial. In such cases no question of a fresh cognizance will arise because cognizance of the offence was already taken and what is involved is only identifying new offenders. In order to proceed against such new persons it must appear from the evidence collected during inquiry or trial that such person also committed the offence. What is involved is only the judicial satisfaction to proceed against him and not the satisfaction that he is guilty. Guilt or innocence is a matter to be decided on the materials collected during trial. What is required is only that he 'appears' to have committed the offence. That is only the satisfaction which is equivalent to the one for issuing process or framing charge and not for conviction. But that satisfaction must be received from the 'evidence' collected during inquiry or trial.
3. The provision is only enabling. The discretion is always with the court. It is for the court to decide whether the new person has to be tried along with others already before it in the same trial or to be tried separately. The satisfaction required for proceeding to try him along with the accused already on record is that he has committed any offence for which he could be tried together with others. That means what is required is not satisfaction of the commission by him of any offence, but his involvement in the same offence along with others or a connected offence for which he could be tried with them in the same trial. If the offence disclosed by the evidence against the new person is a distinct one for which his trial along with the other persons is not warranted by the provisions of the Code, Section 319 has no application. So also the proviso to Section 132 of the Evidence Act will have to be borne in mind. The answers which a witness shall be compelled to give while examined in court cannot subject him to any prosecution or proved against him in any criminal proceeding except a prosecution for giving false evidence by such person. In deciding what is said is 'compelled', his liability under Section 132. Evidence Act will have to be taken into account. Placing a man on trial for an offence on his own evidence alone is contrary to the traditions of justice in criminal courts as they now stand. (Easatulia Mian, In Re AIR 1925 Cal 104: (1924-25 Cri LJ 311).
4. Once an order is made under Section 319(1) the person against whom the order is made becomes an accused at the trial of that very case in which the order is made. All that is required is that proceedings will have to commence afresh and witnesses re-heard so that the person may not suffer because of any proceeding taken in his absence and before he is arraigned as an accused. It is not however the object of the law that the aforesaid person should have a trial separate from the one is which the order against him is made. The addition of the new accused does not necessitate fresh proceedings in initiation. Evidence must be recorded de novo. That is in order that witnesses whose evidence was already recorded may not be used against the new accused. Even though proceeding against the newly added person alone need be commenced afresh under Section 319(4) and witnesses re-heard, in effect in most cases it will be proceeding afresh against all persons with the difference that evidence already on record could be used against those who were already accused then. Even though a fresh charge against the newly added person alone may be sufficient, a common charge against all may become necessary depending on facts. Section 319(4) is in furtherance of the object of fair trial. Contravention of the provisions of de novo trial is not a curable irregularity. When a person is newly impleaded it cannot be said that evidence already recorded remains as against him. Permission to cross-examine witnesses will not amount to compliance of Section 319(4) which requires commencing proceeding afresh and rehearing witnesses (State v. Lekh Raj, AIR 1967 Punj 35 : (1967 Cri LJ 248) and Delhi Municipality v. Y. K. Kapoor, 1981 Cri LJ 223 (Delhi).
5. In effect what happens in a de novo trial is a fresh trial against all the accused because there is only one trial and not separate trials. Proceedings will have to commence afresh Annamma Cherian v. State of Kerala (1988) 2 Ker LT 259. Evidence already recorded cannot be used against the newly added person. It is a fundamental rule of criminal jurisprudence that evidence shall be taken in the presence of the accused except in cases specially permitted or where he is exempted from appearance and permitted to be represented by pleader. That rule gained statutory recognition in Section 273 Cr. P.C. with the exceptions contained in Sections 205, 291, 292, 293, 299 and 317. Evidence recorded at trial cannot be used against a person who was not an accused at the time of recording. That defect cannot be cured by reading the evidence or permitting cross-examination. Trial against him has to commence and witnesses re-heard. Non-compliance will vitiate trial. M.C.D. v. Amar Lal (1977) 2 FAC 283 (Delhi).
6. Accused 2 to 5 are the appellants. They were charge-sheeted and tried along with accused 1 and 6 for having possessed large quantities of petrol and kerosene in violation of Clauses 6 and 7 of the Motor Spirits and High Speed Diesel Oil (Maintenance and Regulation of Supplies) Order, 1979 (for short 'the Motor Spirit Order') and Clause 16 of the Kerosene Control Order. Accused 1 and 6 were acquitted and appellants were convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/- each. Case was charge-sheeted originally against accused 1 to 5 alone alleging that in the property belonging to the 6th accused petrol and diesel were stored and possessed by the first accused as lessee of the land and transacted through the appellants employed by him. Trial started and P.Ws. 1 to 3 were examined. Among them, P.W. 1 is the sixth accused. He turned hostile. While admitting his ownership over the property and the fact his lessee is in possession he refused to admit the identity of the first accused as his lessee. For this reason alone he was made an accused under Section 319( 1) and trial proceeded. P.Ws. 1 to 3 were recalled and examined and P.W. 4 was also examined.
7. Either at the time of impleading the sixth accused or even now there is no evidence at all to connect P.W. 1 (sixth accused) with the crime even remotely. The trial Judge not only overlooked the requirements of Section 319( 1), Cr.P.C. but violated the prohibition contained in the proviso to Section 132 of the Evidence Act also. The extraordinary power given under Section 319(1) in deviation of the normal mode of cognizance is not intended as a punishment to a prosecution witness who turns hostile. If the court is satisfied that he has given false evidence, appropriate action will have to be taken against him. The prosecution had no case and no item of oral or documentary evidence including the testimony of P.W. 1 revealed his complicity in the crime. What the Special Judge did was evidently an illegality.
8. That illegality reached to climax in convicting the appellants. Evidence used for the satisfaction to invoke Section 319(1) cannot be used for convicting a person made an accused under that provision. Evidence taken with him as an accused alone could be used against him. Though the said principle is not applicable to the appellants, the evidence used against them is still more interesting. There is no oral or documentary evidence even remotely suggesting their involvement. P.W. 2 is hostile. His evidence is absolutely of no use to the prosecution. P.W. 3 only said that he transported the petrol and kerosene to the police station after seizure by P.W. 4. P.W. 1 also did not implicate the appellants to any extent. What remains is only P.W. 4 who detected the crime and investigated the case. He said that at the time of seizure the appellants were in the premises near the petrol and kerosene and they told him on questioning that they are the employees of the first accused who was possessing and dealing in these items through them. Accepting these items of evidence the Special Judge said that burden is on the appellants to prove their lack of involvement in these circumstances and they have not discharged that burden. If presence near the scene of occurrence spoken to by the investigating officer without anything more is sufficient to discharge the burden of the prosecution and shift the burden to the accused it will be a sad plight in the dispensation of criminal justice. It is still more pitiable if an alleged confession made to a police officer spoken to by him is accepted as substantive evidence in violation of Section 25 of the Evidence Act to convict him. There is not even a single item of oral or documentary evidence on the side of the prosecution to show that appellants are responsible for the crime. Without adverting to any of these aspects, the Special Judge elaborately quoted State of Gujarat v. Raghunath, 1985 Cri LJ 1357 : (AIR 1985 SC 1092) and State of Maharashtra v. P. K. Pathak, AIR 1980 SC 1224 : (1980 Cri LJ 923) dealing with the acceptability of uncorroborated evidence of official witnesses and convicted the appellants ignoring the evidence of P.W. 4 that he has no direct knowledge regarding involvement of appellants.
9. Criminal appeal is allowed. Conviction and sentences are set aside. Appellants are found not guilty and acquitted. Their bail bonds are cancelled.