Gujarat High Court
Sagir vs State on 13 May, 2010
Gujarat High Court Case Information System
Print
CR.RA/65/2010 15/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 65 of 2010
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
SAGIR
AHMED MOHAMMED GUDALA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance :
MR
MM TIRMIZI for
Applicant
MR JM PANCHAL, SPECIAL PUBLIC PROSECUTOR for
Respondent
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 13/05/2010
ORAL
JUDGMENT
By this revision application under section 397 read with sections 401 and 319 of the Code of Criminal Procedure, 1973 (the Code), the applicant has challenged the order dated 18th December 2009 made by the learned Additional Sessions Judge, Dahod, below Exhibit-76 in Sessions Cases No.6 of 2006, 7 of 2006 and 100 of 2007.
The case of the applicant, as stated in the memo of the revision application is that the applicant is an eyewitness in Sessions Cases No.6 of 2006, 7 of 2006 and 100 of 2007 pending in the Court of the learned Additional Sessions Judge, Dahod, wherein the accused have been charged for the offences punishable under sections 302, 365, 395, 397, 153A, 435, 436 etc. of the Indian Penal Code. It is the case of the applicant, that three eye witnesses viz, the applicant himself, Mohammad Rafik Abdulkarim Gudala and Mohammed Rafik Abdulmajid have been examined as prosecution witnesses No.15, 14 and 16 at Exhibit 86, 56 and 91 respectively and that all the three eyewitnesses have named and attributed specific overt acts against one Shri Kanjibhai Rupjibhai Parmar, who at the relevant time was discharging duties as Police Sub Inspector, Fatehpura Police Station, as well as one Shri Bhabhor, who at the relevant time was discharging duties as Mamlatdar, Fatehpura. Hence, in view of the facts which had been disclosed during the course of recording the evidence of the aforesaid eyewitnesses, the applicant moved an application (Exhibit 76) under section 319 of the Code, praying that the aforesaid two persons be arraigned as accused in all the three Sessions cases. The applicant has reproduced the relevant portions of the depositions of the said witnesses in the memo of the revision application.
By the impugned order, the application made by the applicant under section 319 of the Code came to be rejected, which has given rise to the present revision application.
Mr. M. M. Tirmizi, learned advocate for the applicant has submitted that initially, the investigation was concluded in the year 2002. That the Apex Court in August 2004 had issued directions to superior officers to investigate the cases, hence, immediately thereafter in October 2004, the applicant had made affidavit stating that the investigating officer had not properly recorded his statement as well as had made representations dated 22nd June 2005 and 4th March 2005 wherein the accused Police Sub Inspector Shri Parmar as well as the Mamlatdar Shri Bhabhor were named as accused. It is submitted that the petitioner had also moved Special Criminal Application seeking further investigation in the matter and for naming the Police Sub Inspector K. R. Parmar and the Mamlatdar Bhabhor as accused. It is submitted that, therefore, there was no delay on the part of the applicant in naming the proposed accused as accused.
It is further submitted that section 319 of the Code envisages addition of accused on the basis of fresh evidence that has come on record. Hence, it was only after the three eyewitnesses disclosed the names of the proposed accused that the cause for filing the application had arisen. Therefore, also, it cannot be said that there was any delay in making the application under section 319 of the Code.
Learned advocate has submitted that in the light of the provisions of section 319 of the Code, once it has come on record from the evidence of eyewitnesses that the two persons named by them had committed overt acts, the trial Court was not justified in turning down the application for arraigning them as accused persons.
In support of his submissions, the learned advocate for the applicant has placed reliance upon the following decisions:
[a] The decision of the Supreme Court in Suman v. State of Rajasthan and another, 2009(4) Crime 205 SC, was cited for the proposition that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or file charge-sheet or drops the case, can be proceeded against under section 319 Cr.P.C., if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused.
[b] The decision of the Supreme Court in Y. Saraba Reddy v. Puthur Rami Reddy and another, (2007) 4 SCC 773, was cited for the proposition that power under section 319 of the Code, can be exercised by the court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused has committed an offence, he is to be tried together with the accused. The trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial.
[c] The decision of the Supreme Court in Rajendra Singh v. State of U.P. And another, (2007) 7 SCC 378, was cited for the proposition that if the evidence in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge-sheeted by the investigating agency or may have been discharged at an earlier stage.
[d] Reliance was placed upon the decision of the Supreme Court in Rakesh and another v. State of Haryana, (2001) 6 SCC 248, wherein while dealing with the contention raised on behalf of the appellants therein that the power under section 319 of the Code is an extraordinary power and should be used sparingly and only for compelling reasons for taking cognizance of other persons against whom action has not been taken, the Court held that that it cannot be a dispute that power under section 319 is to be sparingly used. But that would not mean that when a prosecutrix names three persons who were involved in a serious crime, they are not to be added as accused by exercise of such power.
[e] The decision of the Supreme Court in Joginder Singh and another v. State of Punjab and another, 1979 Cr.L.J. 333, was cited for the proposition that if there appears during the course of trial sufficient evidence against an accused indicating his involvement in the offence, as an accused, the Court can direct him to be tried along with other accused.
[f] The decision of the Supreme Court in Hardeep Singh v. State of Punjab, 2009 (1) G.L.H. 114, was cited for the proposition that the primary object underlying section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.
[g] The decision of the Supreme Court in Lok Ram v. Nihal Singh and another, (2006) 10 SCC 192, was relied upon wherein the proposition enunciated in the above referred cases has been reiterated.
[h] Reliance was placed upon the decision of the Supreme Court in Sarabjit Singh and another v. State of Punjab and another, (2009) 16 SCC 46, wherein the Court after considering various earlier decisions on the issue the observation of the Supreme Court in the said decisions is that mere existence of prima facie case may not serve the purpose. Different standards are required to be applied at different stages. As regards the question as to whether a higher standard is set up for the purpose of invoking the jurisdiction under section 319 of the Code, the Court held that the answer should be in the affirmative. That 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 exercise of jurisdiction, would not be satisfied.
Placing reliance upon the principles enunciated in the above referred decisions, it was submitted that in the light of the evidence of the three eye-witnesses, all of whom have named the two proposed accused and have attributed specific overt acts to them, the trial Court was not justified in turning down the application made under section 319 of the Code.
Mr. J. M. Panchal, learned Special Public Prosecutor appearing for the respondent has submitted that the application involves merely questions of fact and that, there is no error of law in the impugned decision of the trial Court. It is submitted that the order made by the trial Court is a discretionary order and as such, does not warrant interference. Inviting attention to the merits of the case, it is submitted that the proposed accused are Government servants. That even on the basis of the depositions of the eyewitnesses, it is apparent that the proposed accused have given protection to the victims. It is submitted that had it been the intention of the proposed accused to kill the persons belonging to a particular community, they could have even done so at the police station. However, on the contrary, they have provided vehicles to the victims for the purpose of transporting them to Rajasthan. It is submitted that while deciding an application under section 319 of the Code, the facts and circumstances of the case have to be taken into consideration. The trial Court has given clear and cogent reasons for rejecting the application made under section 319 of the Code and as such, no interference is warranted at the hands of this Court in exercise of powers of revision. Reliance is placed upon the decision of the Supreme Court in Sarabjit Singh and another v. State of Punjab and another, 2009 Cr.L.J. 3978, wherein the Court has considered its earlier decisions right from 1983 and has held that an order under section 319 of the Code should not be passed only because the first informant or one of the witnesses seeks to implicate other persons. 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 the evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. It is submitted that the Trial Court has upon appreciation of the evidence on record, not found it fit to array the proposed accused as accused in the said cases. It is urged that on the evidence which has come on record, namely, that the two Government Officers had provided protection to the victims, no error can be found in the impugned order of the Trial Court in not joining them as accused.
It is further submitted that out of twenty eight witnesses, sixteen important witnesses have already been cross-examined. Out of the sixteen witnesses only the above referred three witnesses have named the proposed accused and attributed overt roles to them. It is submitted that apart from the said fact, joining the proposed accused at this stage would unduly delay the trial inasmuch as if the proposed accused are joined as accused, the trial would have to be commenced de novo.
The witnesses would have to be summoned once again and examined and cross-examined again, in order to reach the stage where it has presently already reached. It is submitted that such an exercise would result in wasting the whole labour already undertaken, hence unless there is reasonable prospect of the case as against the proposed accused ending in being convicted of the offence in question, the court should refrain from adopting such a course of action. In support of his submissions, the learned advocate placed reliance upon the decision of the apex Court in Michael Machado and another v. Central Bureau of Investigation and another, 2000 SCC (Cri) 609, wherein it has been held that It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.
This Court has perused the record of the case, and has considered the submissions advanced by the learned advocates for the parties as well as the decisions cited at the bar.
From the aforesaid decisions cited by the learned advocates for the respective parties, the following principles can be culled out as regards exercise of powers under section 319 of the Code:
The Trial Court has jurisdiction to add any person not being the accused before it to face trial along with the other accused persons, if the court at any stage of the proceedings, on the basis of the evidence adduced during the course of trial of an offence, is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. Such person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial.
The basic requirements for invoking section 319 is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person can be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.
The Trial Court can take such a step to add such person as an accused only on the basis of evidence before it and not on the basis of material available in the charge-sheet or the case diary, because such material contained in the charge-sheet or the case diary do not constitute evidence.
The power under section 319 of the Code is a discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. It is an extraordinary power and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier.
An order under section 319 of the Code should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the Court so as to satisfy the ingredients of the provisions.
The evidence adduced must be convincing, at least for the purpose of exercise of extraordinary jurisdiction. For this purpose, the Courts are required to apply stringent tests; one of the tests being whether the evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
The primary object underlying section 319 of the Code is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against newly added accused should be taken in the same case and in the same manner as against the original accused.
The Court deciding whether to invoke the power under section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4) thereof, that proceedings in respect of newly added persons shall be commenced afresh and witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial; the witnesses must be summoned once again, and examined and cross-examined in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number, the Court must seriously consider whether the object sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in being convicted of the offence concerned, the Court should refrain from adopting such a course of action.
It is in the light of the aforesaid principles that the impugned order is required to be examined. As can be seen from the impugned order made by the learned Additional Sessions Judge, Dahod, the learned Judge has after appreciating the evidence on record and considering the submissions advanced by the learned advocates for the respective parties, has recorded findings of fact to the effect that the allegations against the proposed accused have been made after a period of three years, that too after obtaining advice from the advocate; that none of the other witnesses have supported the evidence against the proposed accused; that on the basis of the evidence on record, it does not appear that the proposed accused had right from the inception formed an unlawful assembly and were inciting the mob; on the contrary to a certain extent, it appears that they had advised them to leave under safe conditions and had kept them safely at the police station. The learned Judge has, accordingly, prima facie found that it cannot be believed that the proposed accused persons were abetting the other accused. The learned Judge has further observed that if the proposed accused persons are joined as accused at this stage, the trial would be required to be conducted de novo;
that out of twenty eight witnesses, sixteen important witnesses have already been cross-examined consequently joining the proposed accused at this stage would delay the trial. Based upon the aforesaid findings, the learned Judge after considering the decisions cited before him, has found that the application made by the applicant is not required to be considered at this stage.
On a plain reading of the impugned order, it is apparent that the learned Judge has based his conclusions on findings of fact recorded upon appreciation of the evidence on record, which have not been challenged by the applicant on the ground of being contrary to the record or in any manner perverse. The learned advocate for the applicant is not in a position to either controvert or dislodge the aforesaid findings of fact recorded by the learned Judge either on the ground of being contrary to the evidence on record or on the ground of perversity nor is he in a position to point out any procedural irregularity in the impugned order. In the circumstances, the impugned order being based upon findings of fact recorded upon appreciation of the evidence on record, it cannot be stated that there is any legal infirmity in the impugned order so as to warrant interference.
Examining the case against the proposed accused on merits, a perusal of the depositions of the three eyewitnesses as reproduced in the memo of petition as well as, as annexed with the application, apparently indicate that qua the proposed accused, there are conflicting versions in the evidence of the said witnesses inasmuch as on the one hand, the witnesses have stated that the proposed accused were inciting the mob, whereas on the other hand, it is stated that the two proposed accused had come to the police station and told them that they were not in a position to provide them protection and that they should find some other safe place in the morning. The fact that despite the role attributed to the proposed accused by the witnesses, even though the two proposed accused came to the police station, the victims including the witnesses had stayed at the police station during the night is a contradiction in itself. The evidence of one of the witnesses indicates that in the morning of 3rd March, 2002, the proposed accused had informed the victims that they were not safe at the police station and that they should leave the police station by 7 o'clock in the morning. In the circumstances, in the light of the contradictory stands which prima facie appear from the evidence of the three witnesses, insofar as the proposed accused are concerned, it cannot be stated that the learned Additional Sessions Judge has committed any error in not accepting the application under section 319 of the Code.
The Apex Court has in the case of Kailash v. State of Rajasthan, (2008) 14 SCC 51 has, while interpreting the provisions of section 319 of the Code held that, The key words in this section are it appears from the evidence ...
any person ... has committed any offence . It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under section 319 CrPC would be used by the Court. This is apart from the fact that such person, against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. The Supreme Court has, time and again, declared that the discretion under section 319 CrPC has to be exercised very sparingly and with caution and only when the court concerned is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence.
Another significant factor, as noted by the learned Judge is that at the stage when the application was made, out of twenty three witnesses, sixteen witnesses had already been examined. Thus, the court concerned, has already invested considerable time in recording the evidence of such witnesses. As a consequence of arraigning the proposed accused as accused at this stage, the trial would be required to be commenced de novo. All the witnesses who have already been examined would be required to be summoned again and examined and cross-examined, which would unduly delay the trial. In the circumstances, when the court on the basis of the evidence on record is not hopeful that there is a reasonable prospect of the case against the proposed accused ending in their being convicted of the offence in question, no infirmity can be found in the impugned order of the trial Court in not accepting the application under section 319 qua the proposed accused.
In the light of the aforesaid discussion, no case is made out for intervention by this Court. The application, therefore, fails and is, accordingly, rejected. Notice is discharged.
It is clarified that this Court has not made any observations on the merits of the case. Any observation touching the merits of the case is only for the limited purpose of deciding the controversy in issue before this court, and shall not be construed as an expression on the merits of the case. The trial Court shall proceed with the trial unaffected by any observation made in this order.
[HARSHA DEVANI, J.] parmar* Top