Allahabad High Court
Imran vs State Of U.P. on 22 January, 2013
Author: Sudhir Kumar Saxena
Bench: Sudhir Kumar Saxena
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A. F. R. (R E S E R V E D) Court No. - 23 Case :- U/S 482/378/407 No. - 2320 of 2009 Petitioner :- Imran Respondent :- State Of U.P. Petitioner Counsel :- R.P. Mishra Respondent Counsel :- Govt. Advocate,Ashok Bajpai Hon'ble Sudhir Kumar Saxena,J.
1. This petition under Section 482 Cr.P.C. is directed against the order dated 09.10.2002 passed by Additional Sessions Judge/FTC-II, Sultanpur, summoning the petitioner to face the trial in exercise of the power under Section 319 Cr.P.C.
2. Briefly stated facts are that an FIR was lodged by Smt. Anwari Begam against 11 accused persons including the petitioner, alleging therein that these persons opened fire causing death of her husband Jamaluddin on 26.04.2002. FIR was registered as Crime No. 149 of 2002 (Sessions Trial No. 235A of 2002), under Sections 147,148,149,504,506,302 IPC, P.S. Amethi, District Sultanpur. Police after investigation submitted charge-sheet against 8 accused persons. Petitioner was not charge-sheeted. It further appears that during the trial P.W.-1, Anwari Begam was examined and after her examination an application under Section 319 Cr.P.C. was moved which has been allowed by the trial court on 09.10.2002. This very order has been challenged in this petition.
3. It has further been informed at bar by the counsel for the petitioner that trial has concluded and conviction has been recorded, but trial could not proceed against the petitioner owing to his non-appearance as he was not aware about the proceedings and he came to know about the same when the proceedings under Section 82/83 Cr.P.C. were initiated. Learned counsel for the petitioner further informs that the application to surrender was moved whereupon report of the police was called, which reported that no charge-sheet has been submitted against petitioner. This report was correct as the petitioner Imran was summoned subsequently after examination of P.W.-1 by the trial court in exercise of the power under Section 319 Cr.P.C.
4. I have heard Sri R.P. Mishra, learned counsel for the petitioner and Sri Rishad Murtza, learned Government Advocate.
5. Submission of Sri Mishra is that order is cryptic and non-speaking, as such, it suffers from vice of non-application of mind. Trial court has relied upon the case-diary which was not permissible. No satisfaction has been recorded regarding possibility of conviction. The testimony of Anwari Begam who was not cross-examined, could not be the basis for summoning the petitioner and that trial having concluded there remained nobody to be tried together, as court had become funtus officio. Sri Rishad Murtza defended the order.
6. Sri R.P. Mishra has relied upon various judgments of this Court and Supreme Court to buttress his submission. Section 319 Cr.P.C. is being reproduced below:
"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;
(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."
7. This provision confers a discretion upon the Court to summon a person as accused, who is not charge-sheeted, to be tried along with other accused persons. Sub-section (4) is very relevant which says that during trial all the witnesses will be re-examined, so far as newly summoned accused is concerned. This means that all witnesses will not only be examined by the prosecution, they will also be cross-examined. In the present case, it can be said that, thus, a de novo trial or fresh trial would commence, so far as newly added accused is concerned. After his appearance, charge will be framed and then all the witnesses will have to be examined. It is, thus, apparent that order of Session Judge can only be treated to be an order of taking cognizance and summoning a person, against whom cognizance was not taken may be for the reason that he was not charge-sheeted before the Magistrate. Cognizance against him could be taken after evidence came into existence during trial. Therefore the parameters for trial court to exercise the power under Section 319 shall be the same which apply to a Magistrate while issuing process after taking cognizance u/s 204 Cr.P.C. But what trial court has to do is to confine itself to the evidence which came into existence during trial or inquiry and not any other material. If the evidence makes out a prima facie case for summoning, Session Judge/trial court would be justified in summoning a new person as accsed.
8. In the present case, Smt. Anwari Begam had lodged FIR against 11 persons including petitioner Imran. Police for some reason did not submit charge-sheet against him. Smt. Anwari Begam gave statement on oath during trial which led to the impugned order. Smt. Anwari Begam having specifically named the petitioner as one of the assailants, it cannot be said that there was no evidence before the trial court to summon him. At the stage of summoning, no elaborate order is needed. Order must show mere application of mind. It has been held by the Apex Court that while taking cognizance or summoning accused no elaborate reasons are required. Thus, the argument that order is cryptic or does not contain reason and suffers from the vice of non-application of mind has to be repelled. Similarly, order does not show that trial court has relied upon any material collected during investigation.
9. Submission of learned counsel is that discretion conferred under Section 319 Cr.P.C. should be exercised, if from the evidence there appears probability of conviction. Criteria "that such evidence would be sufficient to convict the person" has been emphasized in the case of Ram Singh and Others Vs. Ram Niwas and Another, 2009 (65) ACC 971; Mohd. Shafi Vs. Mohd Rafiq and Another , 2007 (2) JIC 490 (SC); Deepak Naraian and Ors. Vs. State of U.P. And Another, 2010 (71) ACC 178; Ram Kumar Mishra and Another Vs. State of U.P. And another, 2010 (3) JIC 782 (All); Shyam Veer Vs. State of U.P., 2010(3) JIC 784 (All); Kailash Vs. State of Rajasthan reported in 2008 (63) ACC 194 and Ateeq and Ors. Vs. State of U.P. And Another passed in Criminal Revision No. 497 of 2009 (unreported judgment delivered by Hon'ble Raj Mani Chauhan, J.). All these judgments say that power should be used only when Court is satisfied that evidence is sufficient for conviction.
10. Submission of Sri Mishra that uncross-examined testimony cannot form the basis for exercising power, under Section 319 Cr.P.C. is not convincing. Statement on oath if reveals the complicity of any new person, power under Section 319 Cr.P.C. can be exercised. No such restriction can be inferred from a bare reading of provision. It cannot be said that uncross-examined testimony of witness is not an 'evidence'.
11. Newly summoned accused cannot cross-examine a witness before summoning and cross-examination made by initially summoned accused is of no avail.
12. In the case of Hardeep Singh Vs. State of Punjab reported in 2009 (1) JIC 362 (SC), Apex Court in para 28 has observed that "......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."
13. Argument was that unless statement of witness is tested in the cross-examination, it cannot be said to be the evidence enabling the court to exercise the power under Section 319 Cr.P.C. In the case of Hardeep Singh(supra), Apex Court has observed that "examination-in-chief of witness becomes part of the evidence and would enable the Sessions Court to decide to exercise the power under Section 319 Cr.P.C.". Relevant observation made by the court are reproduced below:-
(1)When an examination-in-chief of a witness is over, there being no cross-examination it would be merely prima facie material. But it would enable the Sessions Court to decide whether powers under Section 319 of the Code should be exercised or not.
(2)It is thus difficult to accept the contention of the learned counsel for the appellants that the term 'evidence' used in sub-section (1) of Section 319 of the Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused.
(3)It cannot be said that on being satisfied on the basis of examination-in-chief, an application under Section 319 of the Code is not maintainable.
(4)In our considering opinion, therefore, holding that unless the cross-examination of a witness by accused who were already on record is over and complete, no power under Section 319 of the Code can be exercised, does not appear to be sound.
14. Observation made by Apex Court in the case of Mohd. Shafi(supra), in para 13 has given rise to the referring order which says that "such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness."
15. In the case of Rakesh and Another Vs. State of Haryana reported in 2001 (6) SCC 248, it was held that term 'evidence' under Section 319 would not mean the evidence, tested by cross-examination. View taken in the case of Rakesh(supra) was not brought to the notice of the Bench deciding the case of Mohd. Shafi(supra) at any point of time. Consequently, following two questions were referred by the Court in Hardeep Singh (supra):
(1)When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?
(2)What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?
16. Hon'ble A.P. Shahi, J. has also made a similar reference in the case of Smt. Bhuri Vs. State of U.P. And Ors. reported in 2008 (2) JIC 4 (All). Following three questions were referred:
(1)Whether the ratio as referred to in paragraph Nos. 12 and 13 of the decision in the case of Mohd. Shafi Vs. Mohd. Rafique, reported in 2007(2) JIC 490 : 2007 (58) ACC 254, and referred to herein above run counter to and in conflict with the decision of an equal strength of the Supreme Court in the case of Rakesh & Anr. Vs. State of Haryana, 2001 (2) JIC 757 (SC) : 2001 (43) ACC 392, which has not been noticed in Mohd. Shafi's case, and, as such, whether this Court and subordinate Courts are bound to follow the ratio of the Division Bench decision in the case of Ram Gopal, 1997 JIC 587 (All) : 1999 (38) ACC 123.
(2)Whether the discretion to be exercised by a competent Court under Section 319, Cr.P.C. can be held to be limited or fettered in any way by the ratio the Apex Court decision in the case of Rakesh & Anr. V. State of Haryana, 2001 (2) JIC 757 (SC) : 2001 (43) ACC 392, as against the ratio in the case of Mohd. Shafi V. Mohd Rafique, 2007 (2) JIC 490 (SC) : 2007 (58) ACC 254 (paras 12 and 13) and Michael Machado's case 2000(2) JIC 5 (SC) : 2000 SCC (3) page 262 (paras 11 and 12).
(3)Whether the supplementing observations of one of the Hon'ble Judges in paras 16 to 21 of Rajendra Singh's case (supra) which is a later decision without noticing the ratio laid down in paras 11 and 12 of Michael Machado's case (supra) and paras 12 and 13 of Mohd. Shafi's case (supra), has the impact of limiting the discretion of the Courts while exercising powers under Section 319, Cr. P.C. by expressing a contrary opinion.
17. In para 28 of the judgment, Hon'ble A.P. Shahi, J. observed as under:-
"The aforesaid conflict in my opinion, appears to be resolved by a Larger Bench inasmuch as in my opinion the decision in the case of Mohd. Shafi goes on to hold that the satisfaction can be arrived at inter alia after cross-examination. The said decision no where says that the satisfaction can be arrived only after cross-examination and not before that. The said decision gives a wide discretion to the Court concerned to arrive at a satisfaction either at the stage of examination-in-chief or after cross-examination. In the said case the High Court had interfered with the discretion of the trial Court under Section 482 Cr.P.C. which judgment was set aside with the observation that the said discretion cannot be interfered with that to even on the asking of a witness."
18. Whole difficulty has arisen because both the cases i.e. Mohd. Shafi (supra) and Rakesh (supra) have been decided by Hon'ble two Judges of the Apex Court.
19. No decision of Larger Bench either of Allahabad High Court or of Apex Court has been brought to the notice of the Court. In the case of Sarabjit Singh and Anr. Vs. State of Punjab and Anr. reported in 2009 (3) JIC 522 (SC), Hon'ble S.B. Sinha and Hon'ble P. Sathasivam, J.J. have considered the case of Mohd. Shafi(supra), Rakesh(supra) and Hardeep Singh(supra). In para 15 of the judgment, Hon'ble Court says that for the purpose of this case, it is not necessary to proceed on the basis that the decision in Mohd. Shafi (supra) should be applied in all force. In para 16, Bench observed that "......a power under Section 319 of the Code can be exercised only on the basis of fresh evidence brought before it......". In para 17, Bench says that "Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction." Thus, no reference of the cross-examination of the witness has been made in this judgment. While concluding in para 18, Hon'ble Court says that "Different standards are required to be applied at different stages. 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. 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.
20. The observations made in Mohd. Shafi's case have been clarified in the case of Lal Suraj alias Suraj Singh and Another Vs. State of Jharkhand, reported in (2009) 2 Supreme Court Cases 696 and there is no reference to either the cross-examination of witnesses or to a satisfaction that accused in all likelihood may be convicted on the basis of this evidence.
21. In any case controversy is no more res integra. In the latest judgment given by a two Judge Bench of Hon'ble Apex Court, in the case of "Sarojben Ashwinkumar Shah and Ors. Vs. State of Gujarat and Another, (2012) 1 Supreme Court Cases (Cri) 867, following principles have been laid down while interpreting Section 319 Cr.P.C.:
(i) The court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.
(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.
(iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.
(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word "evidence" in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.
(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The court must also be satisfied that circumstances justify and warrant that the other person be tried with the already arraigned accused.
(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.
(vii) Regard must also be had by the court to the constraints imposed in Section 319(4) that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial.
(viii) The court must, therefore, appropriately, consider the above aspects and then exercise its judicial discretion."
22. Although, this is also a judgment by two Judge Bench of Hon'ble Apex Court, but being later in point of time it has a binding effect. Principles laid down in para 16 do not restrict the power of trial court to act under Section 319 Cr.P.C. only when witnesses were cross-examined. It merely says that "evidence contemplated under Section 319 Cr.P.C. is the evidence of witness given in court in the inquiry or trial. Similarly, satisfaction regarding probability of conviction has also not been made a condition precedent for exercising the power under Section 319 Cr.P.C. The test is only if evidence has come on record which sufficiently establishes that other person had committed an offence. Court is also required to consider the stage of the trial and the constraints imposed in Section 319(4) Cr.P.C.
23. Thus, argument of Sri Mishra that Court could not have acted on the non-cross-examined testimony of prosecution witness, has no force.
24. Similarly, contention that satisfaction has to be with regard to probability of conviction is also merit-less.
25. Trial court has observed that a prima facie case for summoning is made out. As stated earlier, at this stage merely prima facie case for summoning on the basis of the evidence recorded during trial has to be seen. In the charge-sheet, statement of witnesses are recorded under Section 161 Cr.P.C. which are not on oath while under Section 319 Cr.P.C., Court has acted on the testimony which is recorded on oath. P.W.-1 has stated that present petitioner was also one of the assailants. Petitioner was named specifically in the FIR which was lodged promptly (within two hours), as such Sessions Court was fully justified in coming to the conclusion that a prima facie case for summoning has been made out.
26. Next contention of Sri Mishra is that trial having been concluded, there were nobody left to be tried with present petitioner, as such Court became functus officio and impugned order is of no consequence.
27. Intention of Section 319 Cr.P.C. is to ensure that if evidence comes against a person who has not been made accused, he should be tried and dealt with in accordance with law. Provision is based on doctrine "Judex damnatur cum nocens absolvitur" (judge is condemned when guilty is acquitted). It would be not at all in the interest of justice, if accused is allowed to get away even if there is evidence against him. Section 319 sub-section (4) provides for fresh trial, so far as newly summoned accused is concerned. Therefore, even if trial of some of the accused is going on or concluded it would not make any difference so far as procedure to be adopted with regard to newly summoned accused is concerned. If trial had been going on, then too all the witness have to be re-examined/cross-examined and if trial has concluded, the trial would commence from same stage as Sessions Judge would be deemed to have taken cognizance. Thereafter, he would frame the charge and summon all the witnesses. Conclusion of trial does not affect the right of the prosecution to prosecute the accused and have him summoned under Section 319 Cr.P.C.
28. In the case of Shashikant Singh Vs. Tarkeshwar Singh and Another, reported in (2002) 5 Supreme Court Cases 738, Apex Court had occasion to consider such a situation. In para-9 of the judgment Apex Court has specifically held that "The words "could be tried together with the accused" occurring in Section 319(1), appear to be only directory. "could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court." (emphasis supplied)
29. In para 11 of the said judgment, Court says that "the mandate of the law of fresh trial is mandatory whereas the mandate that newly added accused could be tried together with the accused is directory." Observation made in para 14 are being aptly reproduced below:-
"A Magistrate is empowered to take cognizance of an offence in the manner provided under Section 190 of the Code. Section 209 enjoins upon a Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Section 193 provides for the power of the Court of Session to take cognizance of any offence. It uses the expression "cognizance of any offence" and not that of "offender". These three provisions read with Section 319 make it clear that the words " could be tried together with the accused" in Section 319 are only for the purpose of finding out whether such a person could be put on trial for the offence. Once it is so found, as already stated sub-section (4) of Section 319 comes into place. On the Magistrate committing the case under Section 209 to the Court of Session, the bar of Section 193 is lifted thereby investing the Court of Session with complete and unfettered jurisdiction of court or original jurisdiction to take cognizance of the offence which could include summoning of the person or persons whose complicity in the commission of crime can, prima facie, be gathered from the material on record."
30. In view of the above, conclusion of trial would not affect the status of the present petitioner who has to face the trial as contemplated in accordance with Section 319(4) of the Cr.P.C. If submission made by Sri Mishra is accepted then case, where trial has abated on account of death of accused or summoning order has been suspended by higher court in revisional or extraordinary powers, leading to conclusion of trial, against originally summoned accused cannot proceed. This approach cannot be reasonable or common sense approach as it may result into absurdity. Society demands that person against whom evidence has come must face the trial and be brought to the justice.
31. It is also open to the trial court to defer the order under Section 319 Cr.P.C. to a later stage in trial, if it finds that instead of reverting back to stage of commencement of evidence, it would be conducive to conclude the trial which has reached at an advanced stage; but such an order cannot be passed after conclusion of trial, as trial court has the power to act suo motu on the basis of evidence recorded during trial and thereafter power of Sessions Judge to take cognizance ceases. This view is in consonance with the principles laid down in the case of Sarojben Ashwinkumar Shah {Clause (vi), (vii) & (vii), Para 16}.
32. Sri Mishra also placed before the Court an order passed by a Single Judge of this Court on 11.01.2010 in Criminal Misc. Case No. 41 of 2010, order is being quoted below:
"The impugned order dated 02.11.2002, passed under Section 319 Cr.P.C. has been passed saying that on the basis of evidence on record there appears a prima facie case. In fact mere mentioning that prima facie a case is made out is not sufficient. There ought to have been strong suspicion, as has been observed in the case of Sarabjit Singh and another Vs. State of Punjab and another, reported in 2009 (3) JIC 522 (SC). Almost similar view was taken in the case of Lal Suraj Vs. State of Jharkhand, reported in (2009) 2 SCC 696. In this case it was also said that the power under Section 319 Cr.P.C. has to be exercised sparingly. There is also nothing on record to show that in the case in hand the powers has been exercised sparingly.
In view of the above, the impugned order dated 02.11.2002, passed by the Addl. Sessions Judge/F.T.C. V, Sultanpur, in S.T. No. 336 of 2002 (State Vs. Sher Mohammad & others), deserves to be and is accordingly quashed. The learned court below is directed to pass fresh order in accordance with law and also keeping in view the proposition of law laid down by Hon'ble the Apex Court in the subject."
33. From the above, it is apparent that court was looking for 'strong suspicion. In the present case, in the FIR lodged within two hours not only petitioner was named but P.W.-1 has specifically alleged his complicity. Despite opportunity, she was not cross-examined. Court on the basis of this material, exercised the discretion under Section 319 Cr.P.C. Moreover, in this case trial having concluded, matter cannot be remanded as above for fresh order.
34. Lastly, Sri Mishra urged that the petitioner is a juvenile as is apparent from the educational certificates. Since court is not intending to interfere with the impugned order passed under Section 319 Cr.P.C., it is left open to the petitioner to raise this plea before the trial court.
35. In view of the forgoing discussion, this Court does not find any merit, as such petition is liable to be dismissed.
36. The petition is dismissed.
37. Petitioner is directed to appear before the trial court on or before 22nd February. If petitioner moves an application claiming himself to be juvenile on the date of occurrence, it should be examined and dealt with by the trial court in accordance with law.
38. For a period of six weeks, no coercive measure shall be taken against petitioner.
Order Date :- 22.01.2013 rk/-