Madhya Pradesh High Court
Ramesh @ Ramu vs The State Of Madhya Pradesh on 20 June, 2023
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 20 th OF JUNE, 2023
CRIMINAL REVISION No. 2494 of 2023
BETWEEN:-
RAMESH @ RAMU S/O NARAYAN SINGH, AGED ABOUT
44 YEARS, OCCUPATION: AGRICULTURE, RESIDENT OF
VILLAGE FARIDPUR DAILA THANA BASODA, DISTRICT
VIDISHA (MADHYA PRADESH)
.....APPLICANT
(SHRI SAMEER KUMAR SHRIVASTAVA, LEARNED COUNSEL FOR
APPLICANT)
AND
THE STATE OF MADHYA PRADESH INCHARGE POLICE
STATION THROUGH POLICE STATION GANJ BASODA,
DISTRICT VIDISHA (MADHYA PRADESH)
.....RESPONDENT
(SHRI R. S. YADAV- LEARNED COUNSEL FOR THE RESPONDENT- STATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
Present criminal revision under Section 397 r/w Section 401 of CrPC has been preferred by applicant Ramesh alias Ramu challenging order dated 30- 05-2023 passed by Third Additional Sessions Judge, Ganj Basoda, District Vidisha in Sessions Trial No.03 of 2018, whereby application filed by prosecution under Section 319 of CrPC has been allowed and cognizance has been taken against applicant.
Prosecution case, in short, is that complainant injured Yashpal Singh Raghuvanshi (PW1), son of Bhavani Singh Raghuvanshi lodged a Dehati Nalishi Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 2 at No.0 of 2017 against Imrat Singh, Ravindra Singh, Vijay Singh, Balram, Naresh, Nilesh, Virendra, Badan Singh, Sundar Singh, Kallu, Mohan Singh, Dheeraj Singh, Kuldeep, Dharmendra, Surendra, Shailendra, Vikka and five- seven unknown persons with PS Ganj Basoda City, District Vidisha on 31-01- 2017 at around 10:00 in the morning stating therein that earlier a dispute had taken place on 27-1-2017 at around 06:00 in the evening between his nephew Kishori and Ravindra Raghuvanshi of his village without any reason for which, a report was lodged. On that, Ravindra Singh Raghuvanshi, his father Imrat Singh armed with sword and lathi including other family members, i.e. Vijay Singh, Balram, Ramesh (present applicant), Nilesh, Virendra, Badan Singh, Sundar Singh, Kallu, Mohan Singh, Dheeraj Singh, Kuldeep, Dharmendra, Surendra, Shailendra and Vikka as well as five- seven other persons armed with lathi came there and all of them committed marpeet with him and also committed marpeet with his elder brother Jaswant Singh due to which his elder brother Jaswant Singh sustained injuries on his various parts of body including head, left shoulder and finger. Nobody came for their rescue. His mother Smt. atibai and sister-in-law Smt. Shantibai had witnessed the incident. On the basis of such Dehati Nalishi, an FIR vide Crime No. 05 of 2016 was registered at Police Station Basoda City, Vidisha on 31-01-2017 at around 07:00 pm for commission of offences punishable under Sections 147, 148, 149, 323, 324, 506, 294 of IPC against 17 persons i..e. Imrat Singh, Ravindra Singh, Vijay Singh, Balram, Naresh, Nilesh, Virendra, Badan Singh, Sundar Singh, Kallu, Mohan Singh, Dheeraj, Kuldeep, Dharmendra, Surendra, Shailendra, Vikka and other five- seven persons. Both injured Yashpal Singh Raghuvanshi and Jaswant Singh Raghuyvanshi were sent for medical examination and during Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 3 medical examination, it was fund that the injuries sustained by both injured are grievous in nature and dangerous to life and are caused by hard and blunt object. On the basis of their MLC, offence under Section 307 of IPC was enhanced. All accused persons were arrested. After completion of investigation and other formalities, Final Report was filed on 23-07-2017 against eight accused persons i.e. Imrat Singh Raghuvanshi, Vijay Singh Raghuvanshi, Dheeraj Singh Raghuvanshi, Shailendra Raghuvanshi, Vikka Raghuvanshi, Virndra Raghuvanshi, Mohan Singh Raghuvanshi and Nilesh Raghuvanshi for offences under Sections 324, 323, 294, 506, 147, 148, 149, enhanced Section 307 of IPC. Statement of witnesses were recorded. Meanwhile, an application under Section 319 of CrPC was filed by prosecution stating therein that complainant Yashpal Singh Raghuvanshi has also clearly mentioned in his Court statement regarding connection of the applicant in assaulting the injured but police did not submit charge-sheet without making the present applicant as an accused in the alleged crime and, therefore, the applicant be made an additional accused and allowed the application filed by the prosecution under Section 319 of CrPC and has taken cognizance against applicant vide impugned order dated 30-05-2023.
It is contended by learned counsel for the applicant that in the impugned FIR the name of applicant was not arraigned as an accused. During course of investigation, the statement of injured Jaswant Singh was recorded by police under Section 161 of CrPC in which name of present applicant was also not mentioned. Alleged eye-witness to the incident Smt. Shanti Bai, who is the sister-in-law of complainant in her police case diary statement has not taken the name of present applicant. After completion of investigation, Final Report was filed against eight accused persons except the present applicant which shows Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 4 that the applicant was not involved in the alleged crime. It is further contended that the statement of complainant injured Yashpal Singh Raghuvanshi (PW1) was recorded before the Court below on 07-02-2023 in which despite identification of present applicant, he was not named as an accused. Besides this, PW2 Pawan Raghuvanshi, PW3 Jaswant Singh Raghuvansi and PW4 Virendra Raghuvanshi only identified applicant before the Court. The trial Court took cognizance under Section 190 of CrPC allowing the application filed by prosecution under Section 319 of CrPC vide impugned order dated 30-05- 2023 without any objection of prosecution about involvement of present applicant as well as without giving any notice to applicant which is totally contrary to law. In support of his contention, the counsel for the applicant has placed the reliance on the judgment of Hon'ble Apex Court in the case of Sukhpal Singh Khaira vs. State of Punjab (2023) 1 SCC 289 in which Hon'ble Apex Court has already given the guidelines which need to be followed by the Court while exercising power under Section 319 of CrPC before summoning of an additional accused. Hence, impugned order deserves to be set aside.
Learned counsel for the State on the other hand opposed the contentions of applicant and prayed for dismissal of this revision.
Heard learned counsel for the parties and perused the impugned order as well as documents available on record.
While summoning of an additional accused, the guidelines have to be followed by the Court while exercising powers under Section 319 of CrPC and in this regard, the Hon'ble Apex Court in the matter of Sukhpal Singh Khaira(supra) has held as under:-
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 5''33. In that view of the matter, if the Court finds from the evidence recorded in the process of trial that any other person is involved, such power to summon the accused under Section 319 of CrPC can be exercised by passing an order to that effect before the sentence is imposed and the judgment is complete in all respects bringing the trial to a conclusion. While arriving at such conclusion what is also to be kept in view is the requirement of sub-section (4) to Section 319 of CrPC. From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. In a case where the learned Sessions Judge exercises the power under Section 319 of CrPC after recording the evidence of the witnesses or after pronouncing the judgment of conviction but before sentence being imposed, the very same evidence which is available on record cannot be used against the newly added accused in view of Section 273 of CrPC. As against the accused who has been summoned subsequently a fresh trial is to be held. However while considering the application under Section 319 of CrPC, if the decision by the learned Sessions Judge is to summon the additional accused before passing the judgment of conviction or passing an order on sentence, the conclusion of the trial by pronouncing the judgment is required to be withheld and the application under Section 319 of CrPC is required to be disposed of and only then the conclusion of the judgment, either to convict the other accused who were before the Court and to sentence them can be proceeded with. This is so since the power under Signature Not Verified Section 319 of CrPC can be exercised only before the conclusion of the Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 6 trial by passing the judgment of conviction and sentence.
34. Though Section 319 of CrPC provides that such person summoned as per sub-section (1) thereto could be jointly tried together with the other accused, keeping in view the power available to the Court under Section 223 of CrPC to hold a joint trial, it would also be open to the learned Sessions Judge at the point of considering the application under Section 319 of CrPC and deciding to summon the additional accused, to also take a decision as to whether a joint trial is to be held after summoning such accused by deferring the judgment being passed against the tried accused. If a conclusion is reached that the fresh trial to be conducted against the newly added accused could be separately tried, in such event it would be open for the learned Sessions Judge to order so and proceed to pass the judgment and conclude the trial insofar as the accused against whom it had originally proceeded and thereafter proceed in the case of the newly added accused. However, what is important is that the decision to summon an additional accused either suo moto by the Court or on an application under Section 319 of CrPC shall in all eventuality be considered and disposed of before the judgment of conviction and sentence is pronounced, as otherwise, the trial would get concluded and the Court will get divested of the power under Section 319 of CrPC. Since a power is available to the Court to decide as to whether a joint trial is required to be held or not, this Court was justified in holding the phrase, €œcould be tried together with the accused†as contained in Section 319(1) of CrPC, to be directory as held in Shashikant Singh (supra) which in our opinion is the correct view.Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 7
35. One other aspect which is necessary to be clarified is that if the trial against the absconding accused is split up (bifurcated) and is pending, that by itself will not provide validity to an application filed under Section 319 of CrPC or the order of Court to summon an additional accused in the earlier main trial if such summoning order is made in the earlier concluded trial against the other accused. This is so, since such power is to be exercised by the Court based on the evidence recorded in that case pointing to the involvement of the accused who is sought to be summoned. If in the split up (bifurcated) case, on securing the presence of the absconding accused the trial is commenced and if in the evidence recorded therein it points to the involvement of any other person as contemplated in Section 319 of CrPC, such power to summon the accused can certainly be invoked in the split up (bifurcated) case before conclusion of the trial therein.
36. In analysing the issue and making the above conclusion on all aspects, we are also persuaded by the view taken by this Court, among others, in the case of Rajendra Singh vs. State of U.P. and Another (2007) 7 SCC 378 wherein it is concluded with regard to the object of Section 319 of CrPC as hereunder (SCC p. 390, paras 20-21)
20. The power under Section 319 of the Code is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to Signature Not Verified render justice to the victim of the offence. It is in recognition of this Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 8 that the Code has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by this section. It is a salutary power enabling the discharge of a court's obligation to the society to bring to book all those guilty of a crime.
21. Exercise of power under Section 319 of the Code, in my view, is left to the court trying the offence based on the evidence that comes before it. The court must be satisfied of the condition precedent for the exercise of power under Section 319 of the Code.
There is no reason to assume that a court trained in law would not exercise the power within the confines of the provision and decide whether it may proceed against such person or not. There is no rationale in fettering that power and the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It is intended to be used when the occasion envisaged by the section arises.
37. We have also kept in view the point by point analysis of the object and power to be exercised under Section 319 of CrPC, as has been indicated in para 34 of Manjit Singh vs. State of Haryana and Others (2021) SCC Online SC 632.
38. For all the reasons stated above, we answer the questions referred as hereunder:-
39.(I). Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other co- accused has ended and the judgment of conviction rendered on Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 9 the same date before pronouncing the summoning order?
The power under Section 319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.
40.(II). Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
''The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial till its conclusion. 41(III). What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?†41.1 If the competent court finds evidence or if application under Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 10 Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.
41.2. The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
41.3. If the decision of the court is to exercise the power under Section 319 of CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.
41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.
41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.
41.7. If the proceeding paused as in (i) above is in a case where the accused who were tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.
41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 11 Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial.
41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is to set it down for re-hearing.
41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.
41.12. If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused.'' On going through aforesaid guidelines in the above cited judgment, it appears that the Court below can exercise its power under Section 319 of CrPC by summoning of an additional accused when his name appears in FIR or in statement u/S 161 of CrPC or Final Report/challan/charge-sheet. In the present case, neither in the impugned FIR name of the applicant has been mentioned Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM 12 nor in the police diary statements of injured witness Jaswant Singh or witness of the incident , namely, Smt. Shanti Bai the sister-in-law of the complainant or in impugned Challan/Final Report/charge sheet the name of the applicant has been mentioned regarding his involvement in the alleged crime and only on the basis of Court statement of the complainant Yashpal Singh (PW1) regarding identification of the applicant, the trial Court has taken cognizance upon the application filed by prosecution under Section 319 of CrPC, which is totally illegal and contrary to law. The same deserves to be and is hereby set aside.
In view of above, this criminal revision is allowed. The impugned order dated 30-05-2023 passed by Third Additional Sessions Judge, Ganj Basoda, District Vidisha in Sessions Trial No.03 of 2018 is hereby set aside and application filed by prosecution under Section 319 of CrPC deserves to be and is hereby dismissed and applicant is discharged from charges levelled against him.
A copy of this order be sent to trial Court for information and compliance.
(DEEPAK KUMAR AGARWAL) JUDGE MKB Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/22/2023 2:36:09 PM