Allahabad High Court
Dipendra Kumar Singh Alias Bittu vs State Of U.P. & Anr. on 9 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 309
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 31 Case :- CRIMINAL REVISION No. - 1101 of 2019 Revisionist :- Dipendra Kumar Singh Alias Bittu Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Surendra Pratap Singh,Ajai Kumar Gupta Counsel for Opposite Party :- Govt. Advocate,Sushil Kumar Singh Hon'ble Vikas Kunvar Srivastav,J.
1. The present revision is moved to seek interference of court in the impugned order dated 31.7.2019 on the ground of illegality, irregularity and arbitrariness committed by the Trial Judge in S.T No.467/2016, Crime Case No. 299/2016 registered under Sections 147, 148, 149, 504, 506, 307 and 302 I.P.C. in Police Station-Jamo, District Amethi (State of U.P. Vs. Shivendra Pratap Singh & Anr.) allowing the application of informant of the case under Section 319 Cr.P.C. By the said order the revisionist, proposed accused is summoned for trial along with the other named accused in the First Information Report of the incidence and charge-sheeted by the police after investigation.
2. Heard learned counsel Sri S.P. Singh, Advocate appearing on behalf of the revisionist (the proposed accused), learned counsel Sri S.K. Singh, Advocate appearing on behalf of the complainant and for prosecution, learned A.G.A Sri Abhay Kumar, Advocate.
3. The crux of the argument delivered by learned counsel Sri S.P. Singh are that-
i. The presence of accused at the spot of the crime is not established satisfactorily by cogent and material evidence before the court.
ii. Though, the name of accused was given in FIR but so far as the materials and evidence collected by the Investigating Officer during the investigation, there is no evidence on record against the revisionist to show him committing any offence.
iii. The Investigating Officer dropped the name of revisionist and submitted the charge sheet to the Magistrate for cognizance of offence against remaining accused persons named in the FIR.
iv. That even the evidence recorded by the court is also not satisfactory and sufficient to establish the presence of the accused on the spot of the crime when it was committed.
4. In support of above arguments, learned counsel took reliance on the case laws propounded in Sunil Kumar Gupta & Ors. Vs. State of U.P. & Ors. with Khusbu Gupta Vs. State of U.P. & Ors. reported in 2019 (2) JIC 64 SC, Labhuji Amratji Thakor & Ors. Vs. The State of Gujarat & Anr. arising out of SLP (Crl.) No. 6392 of 2018, Hardeep Singh Vs. State of Punjab & Ors. with connected matters reported in 2014 (1) JIC 539 (SC), Raja Ram @ Raj Kumar & Ors. Vs. State of U.P. & Anr. reported in 2019 (2) JIC 139 (All), Rajol & Ors. Vs. State of U.P. & Anr. reported in 2010 (2) JIC 920 (All), Brijendra Singh Vs. State of Rajasthan reported in AIR 2017 SC 2839 and Sugreev Kumar Vs. State of Punjab. He argued that though a person may be called upon by trial judge in the course of trial and the court concerned is empowered by the statute itself to do so but this power is not arbitrary, it is to be governed by the provisions of Section 319 of Cr.P.C. strictly and under the guidelines laid down by the superior courts. He submitted that in the present case the learned trial judge resiled from the principle and norms laid down by the superior courts while exercising it's power under Section 319 Cr.P.C. to call upon the revisionist for participation in trial along with other accused.
5. Learned counsel prays that the impugned order under revision should be examined in the light of the above decisions and be set aside.
6. On the other hand, learned counsel for the complainant - Sri S.K. Singh, Advocate, drew the attention towards the averment made into first information report which clearly indicates not only the presence but the role assigned by the complainant to the proposed accused/revisionist. Secondly, so far as the evidence to be taken into consideration by the Court while exercising it's power under Section 319 Cr.P.C., it is well defined not only under Section 319 Cr.P.C. but also by the decisions even cited by the revisionist, that even the examination-in-chief is sufficient if it satisfactorily proves the presence and role of accused in the crime. Complainant himself got examined on oath as PW-1 and his statement recorded by the court itself in support of contents of the first information report along with the materials brought by the Investigating Officer is available on record. The said evidence and material are satisfactory and sufficient to show that the revisionist actively participated in the commission of crime by firing gun shot upon the deceased persons Pawan Kumar and Anirudha Singh.
7. Learned A.G.A. argued that in the facts, circumstances and evidences available before the Court commission of any irregularity, error or arbitrariness in exercise of power under Section 319 Cr.P.C. is not obvious as the evidence taken into consideration by the Court is much more than necessary for framing of charge and prima facie satisfactory for the court that a conviction would lead in case the said evidence remains un-rebutted.
Position of Law:-
8. Before discussing the arguments of the parties for and against the impugned order in revision it would be pertinent to go through the case laws cited by learned counsel for the revisionist in context of the facts involved in respective case before the Hon'ble Supreme Court. In the case of Sunil Kumar Gupta Vs. State of U.P. & Ors. along with Khusboo Gupta Vs. State of U.P. & Ors. (Supra). The case was of bride burning where the victim in her dying declaration specifically mentioned the name of only one accused and even the prosecution witnesses could not deposed about the role of proposed accused summoned by the trial court in exercise of power given to it under Section 319 Cr.P.C. in para 10 and 11 of the said judgment the Hon'ble Court held as under:-
"10. Observing that for exercising jurisdiction and its discretion in terms of Section 319 Cr.P.C., the courts are required to apply stringent tests, in Sarabjit Singh and Another vs. State of Punjab and Another (2009) 16 SCC 46, it was held as under:-
"21. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other persons(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
22. ....... Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied."
"11. Applying the above principles to the case in hand, in our considered view, no prima facie case is made out for summoning the appellants and to proceed against the appellants for the offence punishable under Section 302 IPC. As pointed out earlier, in the dying declaration, deceased Shilpa has only mentioned the name of Chanchal @ Babita; but she has not mentioned the names of others. In his complaint lodged before the police on the next day i.e. 20.08.2012, Sudhir Kumar Gupta-PW-1 has stated that his daughter Shilpa told him that Chanchal @ Babita and all other people set her on fire after pouring kerosene. PW-1 has neither stated the names of the appellants nor attributed any overt act. Likewise, in their evidence before the court, PWs 1 and 3 have only stated that Shilpa told them that Chanchal @ Babita and all others have set fire on deceased Shilpa. Neither the complaint nor the evidence of witnesses indicates as to the role played by the appellants in the commission of the offence and which accused has committed what offence. Under such circumstances, it cannot be said that the prosecution has shown prima facie material for summoning the accused for the offence punishable under Section 302 IPC."
9. Learned counsel further relied on the judgment of Hon'ble Supreme Court in Brijendra Singh Vs. State of Rajasthan reported in AIR 2017 SC 2839. Hon'ble Supreme Court in this judgment has elaborately discussed the power under Section 319 Cr.P.C., its object and when can such power be invoked by trial court. Hon'ble Supreme Court has further discussed about the degree of satisfaction i.e., required for invoking it. The situation under which power should be exercised in respect of persons named. in the FIR but not charge-sheeted. Hon'ble Supreme Court in para 13 of the judgment observed 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."
10. Learned counsel for the revisionist cited the case law in Labhuji Amratji Thakor & Ors. Vs. State of Gujarat & Anr., arising out of SLP (Crl.) No.6392 of 2018, the facts before the court was that the complainant of the case lodged an F.I.R. on 27.5.2015 under Sections 363 and 366 of the I.P.C. read with Section 3/4 POCSO Act, 2012 that her daughter aged about 14 years has been abducted by one Natuji Bachaji Thakor some time in the last night on 26.5.2015 in morning hours of 27.5.2015. It was however alleged that the aforesaid accused used to visit the victim, the aforesaid 14 years old girl and has given a mobile phone to her, when the complainant knew about this fact he had warned Natuji. After receiving F.I.R., the police investigated into the matter and submitted a charge-sheet under Sections 363, 366 of the I.P.C. and Section 3/4 of the POCSO Act, 2012 against Natuji Bachchuji Thakor, the accused. The statement of the victim was recorded by the investigating officer, she had taken the name of Natuji alone, trial proceeded against the accused in special court under POCSO Act. The statement of mother of victim was recorded, she also did not named any other person than Natuji, the accused. It is only when the statements were recorded by the Special Court of POCSO Judge of the victim who in her statement taken name of Labuji Amratji Thakor, Shashikant and Jituji also, who had taken the victim into 'morvi' in Jeep.
In the light of the said statement the prayer was made to proceed against the appellant Labuji Amratji Thakor etc., also by initiating appropriate legal proceedings.
11. Learned POCSO Judge after considering the statements rejected the application holding, prima facie it appears that with malafide intention, the names of the appellants have been disclosed. The complainant filed a criminal revision against the order dated 1.12.2016 aforesaid rejecting the application which has been allowed by the High Court. The order of POCSO Judge rejecting the application under Section 319 Cr.P.C. was reversed.
12. Before Hon'ble The Supreme Court, the said order passed in revision was challenged and it was submitted that there was no evidence on record on the basis of which it can even to be prima facie found that appellants had also committed the offence. Before Hon'ble Supreme Court the appellant took reliance on the judgment delivered by it earlier in Hardeep Singh Vs. State of Punjab & Ors. reported in 2014 (1) JIC 539 (SC)
13. Hon'ble The Supreme Court in para-6,7,8,9,10,11 of the aforesaid judgment of constitution bench in Hardeep Singh (Supra) observed as under:-
"6. Section 319 Cr.P.C. provides 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. The Court, thus, during the trial on the basis of any evidence is fully empowered to proceed against any person, whose name was not even included in the F.I.R. or the Charge Sheet. The parameters of exercise of power under Section 319 Cr.P.C has been explained by this Court time and again. It is sufficient to refer to Constitution Bench judgment in Hardeep Singh (supra), where this Court had considered the following issue amongst others:-
"6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?"
7. The Constitution Bench judgment in the above judgment has held that under Section 319 Cr.P.C. Court can proceed against any person, who is not an accused in a case before it. The Constitution Bench, however, has held that the person against whom the Court decides to proceed, "has to be a person whose complicity may be indicated and connected with the commission of the offence".
8. Answering the Issue No.(iv) as noticed above, in Paragraph Nos. 105 and 106 of the judgment, following was laid down by the Constitution Bench:-
"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."
9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is "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." The present is a case, where the trial court had rejected the application filed by the prosecution under Section 319 Cr.P.C. Further, in the present case, the complainant in the F.I.R. has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure.
After carrying investigation, the Charge Sheet was submitted in which the appellants names were also not mentioned as accused. In the statement recorded before the Police, the victim has named only Natuji with whom she admitted having physical relations and who took her and with whom she went out of the house in the night and lived with him on several places. The mother of victim in her statement before the Court herself has stated that victim girl returned to the house after one and a half months. In the statement, before the Court, victim has narrated the entire sequence of events. She has stated in her statement that accused Natuji used to visit her Uncle's house Vishnuji, where she met Natuji. She, however, stated that it was Natuji, who had given her mobile phone. Her parents came to know about she having been given mobile phone by Natuji, then they went to the house of Natuji and threatened Natuji.
After one month, Natuji gave another mobile phone to the victim, who had taken it. She stated that in the night at 12 'o' clock, Natuji alongwith his three friends had taken her to Morbi in a jeep. She further stated that she and Natuji stayed for three days at the said place and Natuji had intercourse with her at the said place. When Natuji came to know about lodging of complaint, he took her to Modasa in the jeep. The jeep was given by Labhuji and other two appellants were also in the jeep. She further stated that Labhuji, Shashikant and Jituji came in the jeep and took her and Natuji to the Police Station, where the police interrogated her and she recorded her statement. Natuji was charged with Sections 363 and 366 I.P.C. and Sections 3 and 4 of the POCSO Act.
10. In the present case, there are not even suggestion of any act done by appellants amounting to an offence referred to in Sections 3 and 4 of the POCSO Act. Thus, there was no occasion to proceed against the appellants under POCSO Act.
11. Now, we come back to the reasons given by the High Court in allowing the Criminal Revision and setting aside the order of the POCSO Judge. The judgment of the High Court runs into four paragraphs and the only reason given by the High Court for allowing the revision is contained in paragraph No.3, which is to the following effect:-
"3. On going through the depositions of the victim as well as her mother, some overtact and participation on the part of the respondent nos. 3 to 5 are clearly revealing. But, this Court is not inclined to opine either way as the said fact was not stated before the police at the time of recording of their statements. But, taking into consideration the provision of Section 319 of the Criminal Procedure Code, this Court deems it appropriate to summon them and put them to trial.............................."
14. On the basis of above discussion, the three Judges Bench of Hon'ble Supreme Court in aforesaid case of Labhuji (Supra) held that the mere fact that court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the FIR or the charge sheet does not mean that whenever in a statement recorded before the court, name of any person is taken, the court has to consider substances of the evidence which has come before it and as laid down by the Constitution Bench in Hardeep Singh's case, it should be more than prima facie case which is needed at the time of framing of charges, but short of satisfaction to an extent that evidence, if goes unrebutted would lead to conviction. Since, the High Court has not adverted to test laid down by the Constitution Bench nor has given any cogent reason in exercise of power under Section 319 Cr.P.C., then also Hon'ble Supreme Court for its own satisfaction examined evidence came before the trial court and held that the victim in her statement before POCSO Judge has only stated that Natuji, the accused had come along with his three friends i.e., the appellants and she was taken in the Jeep to 'morvi' she does not even alleged complicity of the appellants in the offence. Her further statement was that she was taken to morvi in the Jeep driven by Labuji and specifically was taken to the Modasa from 'morvi' in the Jeep. The mere facts of being in the Jeep wherein the victim was taken into modasa cannot be treated as to be any allegation of complicity of the appellants in the offence. For want of sufficient reason in the order of High Court reversing the order of POCSO Judge whereby application under Section 319 Cr.P.C. was rejected. The Hon'ble Supreme Court set aside the order of the High Court holding the same unsustainable and allowed the appeal.
15. Learned counsel for the revisionist has relied on the case of Raja Ram @ Raj Kumar & Ors. Vs. State of U.P. & Anr. reported in 2019 (2) JIC 139 (All). The case before Hon'ble The Supreme Court the case of bride burning registered under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act against the named accused persons. The additional accused persons were summoned by the court exercising the power under Section 319 Cr.P.C. whereas the investigating officer concluded all materials with regard to the facts of the case, had dropped the name of revisionist holding that their names were purposely dragged into the offence without any credible evidence. According to him it was established that the revisionist were not present on the date and time of the incident as alleged in the F.I.R. and thus there is no question of their participation in the commission of offence. The High Court observed that during investigation it was unearthed by the investigating officer that on the date and time of the incident the revisionist who is uncle-in-law of the deceased were at Aligarh in connection with the treatment of their own daughter-in-law and this fact is supported by the various CCTV footage, relevant affidavits, relevant attendance registered of revisionist no.3, the CCTV footage coverage of the Librarian where the revisionist no.3 is attend, statement under Section 161 Cr.P.C. of Arvind Kumar all these facts if taken together at least prima facie indicates that there possibility for participating in the offence are very sketchy and remote. The court further held that order of Sessions Judge impugned in the revision was virtually a mini trial instead of recording of his prima facie satisfaction while exercising extraordinary powers under Section 319 Cr.P.C. he has ventured into that arena which could be easily stated that he has tried and held the Hon'ble accused persons (the revisionist) guilty at the stage of 319 Cr.P.C., while discarding the defence of the revisionist which is not permissible in the ratio laid down in the Hardeep Singh's Case.
16. The underlying concept of Section 319 Cr.P.C. is there must be more than a prima facie case that is required at the time of framing of charge but short of satisfaction to an extent that evidence which if remains un-rebutted would lead to conviction.
17. In the light of the principle underlying the provision of Section 319 of the Cr.P.C. which confers power to a court in criminal jurisdiction, while in the course of any enquiry into, or trial of, an offence, when it appears to it 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, may proceed against such person for the offences which he appears to be committed, it could be relevant to examine the proceeding of investigation, trial and impugned order of the court below and impugned order involved in this revision.
18. As emerging out from the First Information Report made Annexure-1 to the revision petition, the incidence reported and registered in P.S. Jamo, District Amethi on 28 July 2018 Case Crime No.0299 of 2018 under Sections 147, 148, 149, 504, 506, 307 and 302 I.P.C., the accused persons are named therein namely Shivendra Pratap Singh @ Guddu, Dipendra Kumar Singh @ Bittu, Alok Pratap Singh @ Golu, Narsingh, Hari Bhan Singh and Ramnath Singh total six in number. The fact in brief is that on 28 July 2018 at about 8 a.m. in morning the complainant/informant, Rajkumar Yadav along with his brother Anirudh Kumar Yadav @ Daddan and a friend Pawan Kumar Singh @ Pappu were standing by the road, the accused persons Shivendra Pratap Singh, Dipendra Kumar Singh @ Bittu, Alok Pratap Singh, Narsingh, Hari Bhan Singh Fauji and Ramnath Singh, respondents of the same village appeared on the spot armed with fire arms began to abuse and threatened them either to ran away from the spot otherwise they will be killed. When the complainant and his companions refused to do so all the accused persons ran them, complainant and his companions ran away from the spot but when they reached in a field, Shivendra Pratap, Dipendra Kumar Singh @ Bittu, Alok Pratap Singh @ Golu fired from the rifle and Narsingh from a gun, the friend of the complainant namely Pawan Kumar Singh and brother Aniruddh Yadav got injured therein, thereafter accused persons fled away. When the victims were carried on to the hospital, Pawan Kumar Singh @ Pappu was declared dead. The brother of the complainant was referred to Trauma Center, Lucknow, when he reached to Trauma Center, he too died. The said incidence was seen by the Pradhan of the village Ravindra Pratap Singh @ Baby, Abhay Pratap Singh and Rajat Singh. This would be pertinent here to mention that the revisionist, Dipendra Kumar Singh @ Bittu had also been named in the aforesaid F.I.R. The investigation was done. While recording the statement under Section 161 Cr.P.C., Ravindra Pratap Singh one of the eyewitness though he named Dipendra Kumar Singh @ Bittu to be on spot but added he came after the commission of offence on the spot. Even the second eyewitness named by the informant Abhay Pratap Singh in his statement under section 161 Cr.P.C. did not state Dipendra Kumar Singh @ Bittu, the revisionist participating in the commission of offence. He named all the co-accused. When specific question was asked by investigating officer as to whether anyone else except 5 named by him was there, he answered after the incident Dipendra Kumar Singh @ Bittu was seen on the spot however he did nothing. One Rajat Singh whose statement was recorded under section 161 of the Cr.P.C. by the investigating officer had also named five out of six named accused committing the offence but stated that during his presence on the spot Dipendra Kumar Singh @ Bittu was not seen by him in the course of commission of offence, but he appeared on the spot thereafter. The charge sheet was prepared after completing the investigation which is made Annexure-2 to the petition. On perusal whereof it appears that the name of one of six named accused in the FIR, Dipendra Kumar Singh @ Bittu was omitted and same was submitted in the Court against the other five accused named in the FIR. A police report was submitted separately under Section 169 Cr.P.C. with regard to accused Dipendra Kumar Singh @ Bittu that he was wrongly named in the FIR as no evidence of his involvement was found.
19. During trial the complainant, Rajkumar when was examined on oath, during examination-in-chief he narrated the incidence happened on 28 July 2018 in between 7 to 8 a.m. morning. He named in his statement along with the charge sheeted five accused, Dipendra Kumar Singh @ Bittu also. The statement by trial court was recorded on 4.9.2018, he disclosed in his statement that the reason of dispute is with regard to land purchased by his grandfather and father in the year 1984, and the complainant continued in possession of the said land. The coparcener of the vendor was litigating with the complainant's family, wherein the decree was passed in his favour starting from C.O., S.O.C. and D.D.C. Litigation went up to the High Court and complainants' party was succeeded. Still civil suit and revenue suit are pending, since opponents in the said case wanted to dispossess them forcibly and accused persons are from their family, therefore, they had enmity and bitterness with the complainant's family which led them to commit the offence reported.
20. On 27 September 2019 an application under Section 319 Cr.P.C., was moved before the court with the prayer to summon the accused (not charge sheeted by the police) Dipendra Kumar Singh @ Bittu, the present revisionist for trial along with the other accused persons. The revisionist preferred objection against the said application on 10th September, 2018 alleging that there is no evidence on record with regard to his participation in the crime and even a plea that that while the police submitted a final report to this effect, no protest petition was filed, therefore, at the stage of trial or reason of police report under section 169 Cr.P.C. submitted before the court with regard to no evidences of participation in crime by Dipendra Kumar Singh @ Bittu. Application under section 319 CrPC is not maintainable. The court heard the parties in detail.
21. On perusal of impugned order dated 31.7.2019 the matter is found discussed quoting various decisions of the Honourable Supreme Court with regard to the power under Section 319 Cr.P.C. of the Court for the summoning of accused during trial under the circumstances given in the Section. The trial judge has observed that in the F.I.R. in unambiguous words the information has reported that "while the accused persons were abusing and threatening the complainant and his companions to run away from the spot otherwise they will be killed and when the complainant refused to do so, Shivendra Singh @ Guddu, Dipendra Kumar @ Bittu and Alok @ Golu from their rifle and Narsingh from his gun began firing wherein Pawan Kumar Singh, friend of the complainant had died on the spot and brother of the complainant to Trauma on reference from the local hospital and too died there".
22. The trial judge observed that the name of Dipendra Kumar Singh @ Bittu was given in the FIR assigning specific role of firing on the deceased and even stated in examination-in-chief before the court as PW-1. As such in the totality and circumstances, the proposed accused, Dipendra Kumar Singh @ Bittu whose presence at the time of incident is even established from the other material and statement taken prior to trial, should be summoned for trial.
23. So far as the observation made by the learned trial judge with regard to the motive is concerned. It is established by law that the FIR is not an encyclopedia mere information as to the incident the accused and the mode of committing offence is sufficient to start the machinery of investigation by the police after registering the report. So far as the police report under Section 169 of the Cr.P.C. by the investigating officer is concerned. It does not bar the court during trial to exercise power under Section 319 Cr.P.C., when it appears to it by evidences coming before it someone else not charge sheeted or not made accused has also role in commission of the offence and should be tried along with the accused persons. Section 319 Cr.P.C. 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 a fresh, and the witnesses re- heard;
(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."
24. The name of the revisionist, Dipendra Kumar Singh @ Bittu is reported in the F.I.R., even then disbelieving the FIR contents without trial and believing on the statement under Section 161 Cr.P.C. which is untestified the investigating officer submitted the report of no evidences under Section 169 Cr.P.C. However, the PW-1 when supported the F.I.R. lodged by him instantly after the incidence and named again the revisionist accused Dipendra Kumar Singh @ Bittu. The question is whether the trial judge was bound by the police report or had to satisfy itself from the evidences before it.
25. From the discussions made hereinabove with regard to fact in the FIR and materials collected by the investigating officer, it is undoubted that the complainant named categorically 6 accused persons namely Shivendra Pratap Singh @ Guddu, Dipendra Kumar Singh @ Bittu, Alok Pratap Singh @ Golu, Narsingh, Hari Bhan Singh and Ramnath Singh.
26. The trial judge recorded its satisfaction on the basis of evidence during the trial of PW-1 to summon the revisionist for trial along with the other accused, therefore, question arises whether the nature of his satisfaction was that as required to invoke the power under Section 319 Cr.P.C. to arraign the accused and whether it is necessary for exercise of power under Section 319 (1) Cr.P.C. when the court is satisfied that the proposed accused in all likelihood be convicted. In this context, it would be relevant here to quote para 82-86 of the judgment of Hon'ble Supreme Court Hardeep Singh (Supra):-
"82. Though the facts so received by the magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 Cr.P.C. it is an information of complicity. Such material therefore, can be used even though not an evidence in stricto sensuo, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved.
83. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material alongwith the charge-sheet 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.
84. 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 utilize 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.
85. 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.
86. 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 Cr.P.C. 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."
27. Para 96 of the Judgment of Hardeep Singh (Supra) is also material in this regard which reads as under:-
"96. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two- Judge Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons."
28. In the context of fact and materials available before the trial court it would be relevant to give the reference of finding given by Hon'ble Supreme Court in similar circumstances in the judgment in Municipal Corporation of Delhi Vs. Ram Kishan Rohatgi & Ors. reported in AIR 1983 SC 67 that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings quashed have also committed the offence, the court can take cognizance against them under Section 319 Cr.P.C. and try them along with the other accused.
29. Lastly, para-118-119 of the judgment in the case of Hardeep Singh's case which answered all the question arisen in the present revision learned, revisionist is being quoted:-
118. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet 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 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C.
119. We accordingly sum up our conclusions as follows:
Question Nos.1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. 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?
A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No. II Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
?A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. IV Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No.V Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?
A. 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 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of ?Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.
30. On the basis of above discussions, it is sufficiently clear that there was evidence of PW-1 as statement recorded in his examination-in-chief supporting the allegation against the revisionist accused, a named accused therein along with other accused persons. The said evidence in terms of Section 319 Cr.P.C. could very well be taken as evidence to satisfy the trial judge so as to summon the revisionist for trial along with other co-accused. The learned trial judge has committed no error of law, nor any irregularity while passing the order impugned in this revision.
31. The revision therefore has no force and there is no reason to interfere with the order of Trial Judge dated 31.7.2019 in S.T No.467/2016, Crime Case No. 299/2016 registered under Sections 147, 148, 149, 504, 506, 307 and 302 I.P.C. in Police Station-Jamo, District-Amethi (State of U.P. Vs. Shivendra Pratap Singh & Anr.) exercised its power under Section 319 Cr.P.C. to summon the revisionist, Dipendra Kumar Singh @ Bittu for trial along with the other accused.
32. With the aforesaid, the present criminal revision is dismissed.
Order Date :- 9.1.2020 Gaurav/-
(Vikas Kunvar Srivastav,J.)