Allahabad High Court
Sonu And 2 Others vs State Of U.P. And Another on 10 November, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 84 Case :- APPLICATION U/S 482 No. - 26749 of 2022 Applicant :- Sonu And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sachin Kumar Sharma Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
Sri Sachin Kumar Sharma, learned counsel for applicants submits that impugned order dated 05.07.2021 whereby the application on behalf of complainant under Section 319 Cr.P.C. was erroneously allowed whereby the applicants are summoned to face trial under Sections 147, 323, 325, 148, 149, 504, 506, 304 I.P.C. and Section 3(1)Da, Dha and Section 3(2)5 of S.C./S.T. Act.
Learned counsel further submits that during investigation, statement of all independent witnesses were recorded wherein the applicants were shown as participants in the occurrence and due to enmity, their names were mentioned in the F.I.R. as well as the statement of prosecution witness No. 1 and 2 recorded during investigation.
The learned trial Court ought to have waited till the evidence of other prosecution witnesses to decide application under Section 319 Cr.P.C.
The above submissions are opposed by Sri Deepak Kapoor, learned A.G.A. that learned trial Court has rightly appreciated the evidence of PW-1 and PW-2, the eye witnesses and their version in regard to involvement of applicants also in the occurrence remained consistent.
Before adverting to the rival submissions, it would be apposite to refer the following paragraphs of judgment of Supreme Court in the case of Sartaj Singh vs. State of Haryana and another, (2021) 5 SCC 337 :-
"13.1. While considering the rival submissions, the law on the scope and ambit of Section 319 CrPC is required to be considered and for that few decisions of this Court are required to be referred to.
13.1.5.While answering Question (ii), namely, whether the word "evidence" used in Section 319(1) CrPC means as arising in examination-in-chief or also together with cross-examination, in the aforesaid decision, this Court has observed and held as under : (Hardeep Singh case [Hardeep Singh v.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC pp. 132-34, paras 86-92) "86. The second question referred to herein is in relation to the word "evidence" as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination-in-chief. InRakesh [Rakesh v.State of Haryana, (2001) 6 SCC 248 : 2001 SCC (Cri) 1090] , it was held that : (SCC p. 252, para 10) '10. ? It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not.'
87. InRanjit Singh [Ranjit Singh v.State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554] , this Court held that : (SCC p. 156, para 20) '20. ? it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.'
88. InMohd. Shafi [Mohd. Shafi v.Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] , it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can evenwait till the cross-examination is over and that there would be no illegality in doing so. A similar view has been taken by a two-Judge Bench inHarbhajan Singh v.State of Punjab [Harbhajan Singh v.State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] . This Court inHardeep Singh [Hardeep Singh v.State of Punjab, (2009) 16 SCC 785 : (2010) 2 SCC (Cri) 355] seems to have misread the judgment inMohd. Shafi [Mohd. Shafi v.Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] , as it construed that the said judgment laid down that for the exercise of power under Section 319 CrPC, the court has to necessarily wait till the witness is cross-examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC.
89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.
90. As held inMohd. Shafi [Mohd. Shafi v.Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] andHarbhajan Singh [Harbhajan Singh v.State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] , all that is required for the exercise of the power under Section 319 CrPC is that, it mustappear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words "such personcould be tried" instead ofshould be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as thecourt is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence.
91. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 CrPC, the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(es) is obliterating the role of persons already facing trial. More so, Section 299 CrPC enables the court to record evidence in the absence of the accused in the circumstances mentioned therein.
92. Thus, in view of the above, we hold that power under Section 319 CrPC can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence."
(emphasis in original) 13.1.6. While answering Question (iv), namely, what is the degree of satisfaction required for invoking the power under Section 319 CrPC, this Court after considering various earlier decisions on this point, has observed and held as under : (Hardeep Singh case [Hardeep Singh v.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC p. 138, paras 105-06) "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."
(emphasis in original) 13.2. Considering the law laid down by this Court inHardeep Singh [Hardeep Singh v.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the court need not wait till the cross-examination of such a witness and the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.
13.3. InS. Mohammed Ispahani v.Yogendra Chandak [S. Mohammed Ispahani v.Yogendra Chandak, (2017) 16 SCC 226 : (2018) 2 SCC (Cri) 138] , this Court has observed and held as under : (SCC p. 243, para 35) "35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."
13.4. InRajesh v.State of Haryana [Rajesh v.State of Haryana, (2019) 6 SCC 368 : (2019) 2 SCC (Cri) 801] , after considering the observations made by this Court inHardeep Singh [Hardeep Singh v.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in the FIR but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused."
In order to summon applicants under Section 319 Cr.P.C., the learned trial Court has to consider the evidence led before it or the documents produced before the Court during trial and it is not required to wait till their cross examination.
I have carefully perused the examination-in-chief of PW-1 and PW-2 and they remained consistent so far as involvement of applicants along with charge sheeted accused persons in the alleged occurrence is concerned.
The Court is not bound to wait for recording all statement of other witnesses during trial in any case on the basis of examination-in-chief of the witnesses at the stage when application under Section 319 Cr.P.C. is filed, a case is made out against applicants which is more than prima facie case. The satisfaction does not require up to standard that the evidence recorded during trial would be sufficient to convict the accused persons.
In the light of above position of law as well as facts and that the name of applicants are consistent in relation to their involvement in the alleged occurrence along with other accused persons and in the light of Sartaj (supra), I do not find any illegality in the impugned order whereby the applicants are summoned under Section 319 Cr.P.C. to face trial for the offence under Sections 147, 323, 325, 148, 149, 504, 506, 304 I.P.C. and Section 3(1)Da, Dha and Section 3(2)5 of S.C./S.T. Act in Special Sessions Trial No. 2615 of 2018 (State vs. Deepak @ Subodh and others), pending before Additional District and Sessions Judge/Special Judge, SC/ST (P.A.) Act, District- Budaun.
The application stands dismissed.
At this stage, learned counsel for applicants submits that applicants want to appear before the Court concerned within two weeks from today and want to file their bail applications which may be considered in accordance with law.
Considering the above prayer, while rejecting the prayers made in this application, this application stands disposed of with a direction that if applicants appear and file their bail application before the Court concerned in abovereferred trial within a period of two weeks from today, the same shall be considered by the learned trial Court in accordance with law expeditiously.
Order Date :- 10.11.2022 Nirmal Sinha (Sl. No. 251/527 fresh cases)