Allahabad High Court
Sameer vs State Of U.P. And Another on 18 October, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:166423 Court No. - 86 Case :- CRIMINAL REVISION No. - 4999 of 2023 Revisionist :- Sameer Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ram Bhusan Diwakar,Ram Sumer Chaudhary Counsel for Opposite Party :- G.A.,Shyam Sunder Mishra Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard learned counsel for the revisionist, learned counsel for the respondent no. 2 and learned AGA for the State.
2. This criminal revision has been filed against the judgement and order dated 20.7.2023 passed by Additional District and Sessions Judge/ FTC-II, Fatehpur in Session Trial No. 574 of 2021 (State vs. Khurshid) arising out of Case Crime no. 122 of 2021, under section 307 IPC, P.S. Bakewar, District Fatehpur whereby learned trial court has summoned the revisionist as an accused in exercise of power under section 319 Cr.P.C. to face trial together with accused Khurshid, who was already facing trial.
3. Factual matrix of the case, in brief, are that the informant Shabbir Shah son of Shahjad Shah filed a written report at police station concerned with averment that his son Yaseen @ Aashu aged 19 years was working in his field. Khurshid- nephew of his co-villager Tiulal, who is resident of Akhilabad Bindaki, was staying at the place of his maternal uncle for so many days. He was having grudge with his son without any reason. On 12.6.2021 at around 4:00 pm, Khurshid came to his son Yaseen having knife in his hand and with intention to kill, stabbed him by knife in his abdomen. The injured was rushed to hospital from where he was referred to Kanpur by the doctor. The FIR was lodged on 12.6.2021 at 23:32 hours against named accused Khurshid. In injury report of injured Yaseen, stab injury on chest was found, which was caused by some sharp object. The investigating officer recorded statement of the informant and injured, in which, only name of the named accused accused Khushid surfaced for causing serious injury to the injured by knife. Police submitted charge-sheet against the named accused Khurshid after concluding the investigation. The court framed charge under section 307 IPC against the accused Khurshid on commencement of trial. At the stage of prosecution evidence, informant Sabbir and injured Yaseen were examined as PW-1 and PW-2 in which they deposed that one Sameer son of Tiulal @ Husain was also involved in the offence and on asking of Khurshid, Sameer caught hold of injured Yaseen and Khurshid stabbed him on left side of chest with intention to kill and when informant came to rescue him, both accused escaped from the place, after abusing the informant.
4. PW-2 also stated that the witness and maternal uncle of the accused Khurshid are relatives. Some altercation took place between Khurshid and him, who had visited his village and staying at the place of his maternal uncle Tuelal @ Hussain and had forwarded obscene photograph from his mobile phone to the injured on the mobile phone of sister-in-law of the injured. After recording statement of PW-1 and PW-2, an application under section 319 Cr.P.C. was filed by the informant with prayer to summon Sameer son of Tiulal as an accused in exercise of power under section 319 Cr.P.C. as his name surfaced during trial in the evidence of PW-1 and PW-2 as a person who had caught hold the injured then latter was stabbed by named accused Khurshid. Learned trial court by the impugned order has summoned Sameer to face trial for charge under section 307 IPC together with accused Khurshid. Newly added accused Sameer has assailed the impugned order before this Court by way of present revision.
5. Learned counsel for the revisionist submitted that as per prosecution version, incident occurred on 12.6.2021. The date of birth of revisionist is 15.11.2005 as per high school mark-sheet, which indicates that he was minor on the date of incident and was around 16 years of age. He further submitted that revisionist neither named in the FIR nor his name surfaced during statement of witnesses including injured in statement under section 161 Cr.P.C. and his name surfaced for the first time at the stage of prosecution evidence of PW-1 and PW-2 i.e. informant and injured, which is absolutely afterthought and witnesses have taken name of Sameer as a person, who facilitated Khurshid for commission of offence by catching hold of the injured. This false implication has been made by the witnesses only with malafide intention. Infact, revisionist was not present on the spot otherwise his name would have surfaced in the FIR and during investigation as an accused alongwith named accused who is already facing trial. He has been implicated only due to fact that he is relative i.e. cousin of main accused. He lastly submitted that the material facts, which are not found in the FIR or in the statement of witnesses recorded during investigation, cannot be permitted to be proved during trial.
6. Per contra, learned counsel for respondent no. 2 and learned AGA supported the impugned order and submitted that there is no illegality, irregularity or perversity in the impugned order passed by the learned trial court. The revisionist has been summoned to face trial in exercise of power under section 319 Cr.P.C. vested in trial court on the basis of evidence of informant and injured appearing during trial. In the evidence of witnesses, active role has been assigned to the revisionist and at this stage it cannot be held that the revisionist has been falsely implicated in the case. Learned counsel for respondent no. 2 further submitted that at the stage of exercising of power under section 319 Cr.P.C. only evidence adduced during trial can be considered and both witnesses have specifically named and attributed special role in the offence to the revisionist.
7. Learned counsel for respondent no. 2 placed reliance upon the judgement of Hon'ble Apex Court in Sartaj Singh vs. State of Haryana and another, 1010 0 Supreme (SC) 147 wherein Hon'ble Apex Court quashed and set aside the revisional order of Punjab and Haryana High Court and affirmed the order of trial court whereby respondents were summoned to face trial in exercise of power under section 319 Cr.P.C. The case pertains to sections 148, 149, 341, 323, 324, 307, 506 IPC. The Hon'ble Apex Court cited the judgement of Constitution Bench in Hardeep Singh vs. State of Punjab (2014) 3 SCC 92, Sukhpal Singh Khaira vs. State of Punjab (2019) 6 SCC 638 and placed reliance thereon. Learned counsel emphasized paragraph 6.1.3 to 6.4 of the judgement in Sartaj Singh (supra), which reads as under:-
6.1.3 While considering the aforesaid questions, this Court in Hardeep Singh (supra) observed and held as under:
12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.
13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?
14. The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of CrPC and the judgments that have been relied on for the said purpose.
The controversy centres around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised. xxx xxx xxx
17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.
18. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scotfree by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.
19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.
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22. In our opinion, Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018] .
47. Since after the filing of the chargesheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the chargesheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pretrial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Session.
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53. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 CrPC cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB) [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 :
AIR 2013 SC 3018] . The dispute therein was resolved visualising a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 CrPC is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 CrPC confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it.
54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC.
55. Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.
56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections 200, 201, 202, etc. CrPC applicable in the case of complaint cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded. 6.1.4 While answering Questions (iii), namely, whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial, this Court, in the aforesaid decision has observed and held as under:
"58. To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 CrPC, the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that come up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be "where ... it appears from the evidence" before the court.
59. Before we answer this issue, let us examine the meaning of the word "evidence". According to Section 3 of the Evidence Act, "evidence" means and includes:
"(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the court;
such documents are called documentary evidence." xxx xxx xxx
78. It is, therefore, clear that the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation.
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82. This pretrial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material along with the chargesheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge sheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges.
83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word "evidence" as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court.
84. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.
85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The "evidence" is thus, limited to the evidence recorded during trial. 6.1.5 While answering Question (ii) namely, whether the word "evidence" used in Section 319(1) CrPC means as arising in examinationinchief or also together with crossexamination, in the aforesaid decision, this Court has observed and held as under:
86. The second question referred to herein is in relation to the word "evidence" as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examinationinchief. In Rakesh [(2001) 6 SCC 248 : 2001 SCC (Cri) 1090 : AIR 2001 SC 2521] , it was held that: (SCC p. 252, para 10) "10. ... It is true that finally at the time of trial the accused is to be given an opportunity to cross examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not."
87. In Ranjit Singh [Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC 3148] , this Court held that: (SCC p. 156, para 20) "20. ... it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."
88. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] , it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the crossexamination is over and that there would be no illegality in doing so. A similar view has been taken by a two Judge Bench in Harbhajan Singh v. State of Punjab [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] . This Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2009) 16 SCC 785 : (2010) 2 SCC (Cri) 355] seems to have misread the judgment in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] , as it construed that the said judgment laid down that for the exercise of power under Section 319 CrPC, the court has to necessarily wait till the witness is crossexamined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC.
89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examinationinchief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.
90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] , all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination in chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words "such person could be tried" instead of should be tried. Hence, what is required is not to have a mini trial at this stage by having examination and cross examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross examination at all, for in light of sub section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination in chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination in chief untested by cross examination, undoubtedly in itself, is an evidence.
91. Further, in our opinion, there does not seem to be any logic behind waiting till the cross examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 CrPC, the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(es) is obliterating the role of persons already facing trial. More so, Section 299 CrPC enables the court to record evidence in absence of the accused in the circumstances mentioned therein.
92. Thus, in view of the above, we hold that power under Section 319 CrPC can be exercised at the stage of completion of examinationinchief and the court does not need to wait till the said evidence is tested on cross examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.
6.1.6 While answering Question (iv), namely, what is the degree of satisfaction required for invoking the power under Section 319 CrPC, this Court after considering various earlier decisions on this point, has observed and held as under:
105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.
6.1.7 While answering Question (v), namely, in what situations can the power under Section 319 CrPC be exercised: named in the FIR, but not chargesheeted or has been discharged, this Court has observed and held as under:
112. However, there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not chargesheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation, the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged.
Therefore, there must exist compelling circumstances to exercise such power. The court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 CrPC without resorting to the provision of Section 319 CrPC directly.
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116. Thus, it is evident that power under Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the chargesheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC. 6.2 Considering the law laid down by this Court in Hardeep Singh (supra) and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examinationinchief of the witness concerned and the Court need not wait till the crossexamination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examinationinchief of the witness concerned), it appears that such person can be tried along with the accused already facing trial. 6.3 In S. Mohammed Ispahani v. Yogendra Chandak (2017) 16 SCC 226, this Court has observed and held as under: (SCC p. 243) "35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the chargesheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the chargesheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."
6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC 368, after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in charge sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.
8. With above observations, Hon'ble Apex Court opined that learned trial court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant - injured eye witness. The aforesaid reasons assigned by the High Court are unsustainable in law and on facts. At this stage, the High Court was not required to appreciate the deposition of the injured eye witness and what was required to be considered at this stage was whether there is any prima facie case and not whether on the basis of such material the proposed accused is likely to be convicted or not and/or whatever is stated by the injured eye witness in his examination in chief is exaggeration or not. The aforesaid aspects are required to be considered during the trial and while appreciating the entire evidence on record. Even the observations made by the High Court referred to hereinabove are on probability. Therefore, the impugned judgment and order passed by the High Court is not sustainable in law and on facts and is beyond the scope and ambit of Section 319 CrPC.
9. Learned counsel for the revisionist placed reliance on judgement of Hon'ble Apex Court in Brijendra Singh and others vs. State of Rajasthan, 2017 AIR (SC) 2839 and emphasized paragraph 13, 14 and 15 of said judgement, which are reproduced as under:-
In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated:
Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.
This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny.
10. After giving thoughtful and respectful consideration on above observations in the judgement of Hon'ble Apex Court cited by the parties in the light of facts and circumstances of the case, I am of the considered opinion that this is admitted fact that neither revisionist is named in the FIR nor his name surfaced in the statement of witnesses during investigation, even his name has not surfaced in the statement of injured recorded by the investigating officer.
11. It is stated in the application under section 319 Cr.P.C. that informant had moved an application before S.P. concerned on 5.7.2021 after lodging the FIR that the revisionist Sameer was also involved in the offence alongwith accused Khurshid but no action was taken thereon. This is also admitted fact that name of revisionist surfaced on record only during course of trial of co-accused in statement of PW-1 and PW-2, informant and injured.
12. In Vimal Suresh Kamble vs Chaluverapinake Apal S.P. And Another, (2003) 3 SCC 175, Hon'ble Supreme Court held that if the prosecution witness has failed to mention certain facts in statement under section 161 Cr.P.C. and that fact has been introduced in sworn testimony before the court, it appears that fact sought to be proved through witness during trial was not stated by him in his statement recorded during the course of investigation and evidence of witness on such fact will not be significant.
13. In present case also the injured has tried to implicate the accused revisionist in his sworn testimony before the court, which is not supported and had not found place in his previous statement recorded under section 161 Cr.P.C.
14. This Court in Criminal Revision No. 1909 of 2023 (Dharmveer vs. State of U.P. and another) decided on 6.5.2024 has held that learned trial court has not recorded its satisfaction while summoning revisionist as an accused in the impugned order as required in the judgement of Hon'ble Apex Court in Hardeep Singh (supra). Learned trial court has not exercised its jurisdiction vested under section 319 Cr.P.C. while summoning the revisionist to face trial in proper and lawful manner. The impugned order cannot be sustained and is liable to be quashed.
15. In view of above, the present revision is allowed. The impugned order dated 20.7.2023 passed by Additional District and Sessions Judge/ FTC-II, Fatehpur is set aside.
Order Date :- 18.10.2024 Dhirendra/