Gauhati High Court
Md. Ali Akbar vs The State Of Assam on 19 April, 2012
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
Crl. Rev. (P) No. 552 of 2004
Petitioner:
Md. Ali Akbar, Resident of village-Dakhin
Lawgaon, P.S- Nagaon, Dist. Nagaon,
Assam.
By Advocates :
Mr. K.H. Choudhury, Sr. Adv.
Ms. P. Lahkar, Adv.
Respondent :
The State of Assam.
By Advocate :
Mr. K. Munir.
Addl. P.P, Assam.
BEFORE THE HON'BLE MR. JUSTICE UJJAL BHUYAN.
Date of hearing : 30th January, 2012
Date of Judgment : 19-04-2014
J U D G M E N T AND O R D E R
This revision petition has been filed challenging the legality and validity of the order dated 29-03-2004 passed by the learned Sessions Judge, Nagaon in Sessions Case No.110(N)/2002 adding the petitioner as an accused in the said case and deciding to proceed against him alongwith the accused persons already on record.
2. The facts of the case may be briefly noted.
Crl. Rev. Pet. No. 552 of 2004 Page 1 of 1 2
3. One Md. Hussain Ali as the informant had lodged a first information before the Officer-in-charge of the Nagaon Sadar Police Station alleging that Md. Giasuddin and his wife Musstt. Ashiya Khatun, who are his relatives and residents of the same village, had a quarrel with his sister-in- law (younger brother's wife) on 31-03-2002 at about 7:30pm over a family matter. On the next day i.e., on 01-04-2002 at about 6:30am when he went to his paddy field, the above two persons (named as accused) chased him with a dagger. Fearing for his life, he went home and informed his father Hazarat Ali about the incident. Later on, Hazarat Ali informed the father of the accused No.1 Md. Ali Akbar about the same. Then, Hazarat Ali, Md. Ali Akbar and the informant together went towards the paddy field to confront the accused persons. They came across the accused persons on the road whereupon, the accused No.1 Md. Giasuddin stabbed Hazarat Ali in the chest with the dagger and fled away. Hazarat Ali died on way to the hospital.
4. On the basis of the said information, the police registered a case, being Nagaon P.S. Case No.190/2002 u/s 302 of the Indian Penal Code (IPC). On completion of the investigation, the police submitted the charge- sheet only against Md. Giasuddin u/s 302 IPC. On committal, the case was registered as Sessions Case No.110/2002. The learned Sessions Judge, Nagaon formally framed charge against the accused Md. Giasuddin on 30-07- 2002 u/s 302 IPC to which he pleaded not guilty and claimed to be tried. Subsequently, the learned Sessions Judge also framed charge against Musstt. Ashiya Khatun u/s 302/34 IPC to which she pleaded not guilty and claimed to be tried.
5. The learned Sessions Judge examined the following witnesses- Crl. Rev. Pet. No. 552 of 2004 Page 2 of 2 3
1. PW 1 ---- Md. Hussain Ali (informant)
2. PW 2 ---- Jamina Khatoon
3. PW 3 ---- Majibur Rahman
4. PW 4 ---- Ajgar Ali
5. PW 5 ---- Md. Ibrahim Ali
6. PW 6 ---- Md. Nazrul Islam
7. PW 7 ---- Dr. Keshabananda Goswami
6. On 29-03-2004, another witness Shri Dhrubajyoti Baruah, Executive Magistrate was present before the Court to give evidence. At that stage, after hearing a petition filed by the prosecution, the learned Sessions Judge passed an order adding the petitioner Md. Ali Akbar as accused in the case and issued summons to him for appearance. The petition filed by the petitioner for recall of the said order was thereafter rejected by the learned Sessions Judge by the order dated 12-07-2004.
7. Aggrieved, the petitioner is before this Court. This Court by order dated 14-09-2004 had issued notice and had stayed the operation of the order dated 29-03-2004 as well as the subsequent order. On 28-09-2004, rule was issued and the LCR was called for.
8. I have heard Mr. K.H. Choudhury, learned Senior Counsel for the petitioner as well as Mr. K. Munir, learned Additional Public Prosecutor, Assam for the respondent state.
9. Learned counsel for the petitioner submits that though u/s 319 of the Code of Criminal Procedure, 1973 (Cr.P.C.), the Court has the power to proceed against a person, not being the accused, for the offence which he appears to have committed, in the present case, the exercise of the said power is not justified. He contends that the materials on record does not warrant addition of the petitioner as an accused in the case. He also submits Crl. Rev. Pet. No. 552 of 2004 Page 3 of 3 4 that the petitioner is an old man of about 80 years of age now and, therefore, the Court should interfere in the matter by quashing the order dated 29-03- 2004.
10. The learned Public Prosecutor on the other hand submits that the learned trial Court has exercised its discretion on examination of the evidence adduced and, therefore, this Court should not interfere in the matter at this stage in exercise of its revisional powers.
11. I have considered the submissions made by the learned counsel for the parties.
12. Since the learned Court below had exercised power u/s 319 Cr. P. C. and added the petitioner as an accused in the case, the said provision may be examined. The said section empowers the Court to proceed against person(s) other than the accused person(s), who appear to be guilty of the offence. For ready reference, the said section is extracted below :-
"319. Power to proceed against other persons appearing to be guilty of offence - (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1) then-
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;Crl. Rev. Pet. No. 552 of 2004 Page 4 of 4 5
(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".
13. The said provision was examined by the Apex Court in the case of Joginder Singh -Vs- State of Punjab; reported in AIR 1979 SC 339 wherein their Lordships observed that u/s 319(1) Cr.P.C. the Court has the power to add any person, not being the accused before it, as an accused and direct him to be tried alongwith the other accused provided there appears against him during the trial sufficient evidence indicating his involvement in the offence.
14. In Municipal Corporation of Delhi -vs- Ram Kishan Rohtagi and others; reported in AIR 1983 SC 67, the Hon'ble Supreme Court while acknowledging that this provision of section 319 Cr.P.C. gives ample power to any Court to take cognizance and add any person, not being an accused before it, as an accused and try him alongwith the other accused, however, struck a word of caution by stating that this is really an extra- ordinary power and should be used very sparingly and only if compelling reasons exist.
15. Again in Michael Machado and another -vs- Central Bureau of Investigation and another; reported in (2000) 3 SCC 262, the Apex Court on a close scrutiny of the said provision observed that the basic requirement for invoking section 319 Cr.P.C. is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, other than the person(s) arraigned as accused in that case, has committed an offence for which that person could be tried together with the Crl. Rev. Pet. No. 552 of 2004 Page 5 of 5 6 accused already on record. As against some doubt or suspicion, the Court must have reasonable satisfaction from the evidence on record that the other person has committed an offence and that for such offence, the other person could as well be tried alongwith the already arraigned accused. Their Lordships have held that the power conferred on the Court u/s 319 Cr.P.C. is only discretionary which should be exercised only to achieve criminal justice and that before exercising that power, a judicial exercise is called for keeping in mind that there is no compelling duty on the Court to proceed against such other person(s).
16. From a careful consideration of the said provision and the judgments of the Apex Court, the following broad legal principles emerges :-
1. From the evidence on record, it should appear to the Court that some other person, not arraigned as accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned.
2. As against entertaining of some doubt or suspicion, the Court must have a reasonable satisfaction which is to be deduced from the evidence on record; in other words, there must be sufficient evidence indicating his involvement in the offence and a reasonable prospect of his conviction.
3. Such reasonable satisfaction of the Court should be arrived at after a judicial exercise keeping in mind the various aspects of the case and must be reduced in writing indicating two things;
firstly, that the other person has committed an offence and secondly, for such offence, that other person could as well be tried alongwith the accused already arraigned.
4. The power conferred on the Court u/s 319 Cr.P.C. is only a discretionary power.
5. This is an extra-ordinary power conferred on the Court and should be used very sparingly and only if compelling reasons exist.
Crl. Rev. Pet. No. 552 of 2004 Page 6 of 6 7
17. On the basis of the broad legal principles as noticed above, let us now examine the impugned order of the learned Sessions Judge, which is quoted hereunder :-
"P.W.1 and P.W.3 have mentioned one Ali Akbor. He is the father of the accused Md. Giasuddin. The evidence shows that Ali Akbor was very much present at the time of murderous assault on Hazrat Ali. The offence is u/s 302 IPC. I am of the considered view that Ali Akbor should be added as accused in this case. The petition filed by prosecution is allowed. Issue summons to accused Ali Akbor. Fix 13-05-04 for appearance".
18. The learned Sessions Judge held that the evidence of P.W.1 and P.W.3 indicated the presence of the petitioner when the occurrence took place and since the offence alleged is u/s 302 IPC, added the petitioner as accused in the case. The finding, however, does not meet the test indicated above. No reasonable satisfaction has been recorded by the learned Court below holding that there are sufficient evidence against the petitioner implicating him in the commission of the alleged offence where his conviction is possible and that he should be proceeded against alongwith the accused already arraigned. In the absence of the same, invoking of the extra-ordinary discretionary power by the learned Court below is considered not justified. The learned Judge also failed to consider that already seven witnesses had adduced evidence, which exercise would have to be redone in view of the provision contained in sub- section (4) of section 319 Cr.P.C. Because of the impugned order and the resultant litigation, more than seven and half years have been wasted. This could well have been avoided.
19. I have also examined the evidence of P.W.1 and P.W.3. No doubt, their evidence gives rise to some doubt about the conduct of the petitioner. But as has been held by the Apex Court, mere doubt or suspicion is Crl. Rev. Pet. No. 552 of 2004 Page 7 of 7 8 not sufficient. There must be reasonable recordable satisfaction about the involvement of the other person in the alleged offence and his possible conviction, which is absent in the present case.
20. In the circumstances, this Court is of the view that the present is not a case where the discretionary power u/s 319 Cr.P.C. is required to be exercised to add the petitioner as accused.
21. In view of the aforesaid, the revision petition is allowed. The impugned order dated 29-03-2004 is set aside and quashed. As already considerable delay has taken place, the learned Sessions Judge, Nagaon should now proceed and conclude the trial against the already arraigned accused persons as expeditiously as possible.
22. Registry to send down the LCR forthwith.
23. No cost.
JUDGE Ors./d.de.
Crl. Rev. Pet. No. 552 of 2004 Page 8 of 8