Allahabad High Court
Ram Singh & Others vs State Of U.P. & Another on 27 May, 2016
Author: Alok Kumar Mukherjee
Bench: Alok Kumar Mukherjee
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 9 Case :- CRIMINAL REVISION No. - 5271 of 2005 Revisionist :- Ram Singh & Others Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Shri Prakash Dwivedi Counsel for Opposite Party :- Govt. Advocate,A.K.Rai,R.N.Rai Hon'ble Alok Kumar Mukherjee,J.
This Criminal Revision has been preferred against the order dated 25.11.2005 passed by the Additional Session Judge/F.T.C., Court No.3, Mirzapur in S.T. No. 134 of 2005 (State Vs. Jai Prakash and others) under Sections 307, 323, 325, 504 I.P.C., P.S. Adalhat, District Mirzapur, whereby the learned trial court has allowed the application 9-Kha, moved by the informant Anand Kumar Singh for summoning the revisionists-accused persons for trial along with the charge sheeted accused persons.
Brief facts narrated in the application 9-Kha, is that there are two cross cases between the parties bearing Crime Nos. 327 of 2004 and 327-A of 2004 out of which in the present case in question, i.e., in Crime No. 327 of 2004, seven accused persons were named in the FIR by the informant/applicant but after investigation the I.O. has filed chargesheet only against three accused persons, despite there being ample evidence before the Investigating Officer. Hence, the opposite party no.2/informant had moved this application in question before the trial court at the stage of prosecution evidence. Thereafter, by the impugned order, the learned Additional Session Judge, on the basis of the evidence collected during the investigation of the case, the FIR, X-ray report, injury reports of the injured and after hearing the parties had allowed the application in question and summoned the remaining accused persons/revisionists named in the FIR for trial along with the charge sheeted accused persons.
Heard Shri Prakash Dwivedi, learned counsel for the revisionists and Sri R.N. Rai, learned counsel for the opposite party no.2 as well as learned A.G.A. for the State.
Learned counsel for the revisionists contended that the impugned order of summoning is erroneous and perverse because the trial had already commenced and not a single prosecution witness had been examined, which could lead to inference of involvement of remaining accused persons/revisionists in the incident in question. It is further submitted that the learned trial Judge, only on the basis of the evidence, recorded under section 161 Cr.P.C., the FIR, X-ray report and injury reports, i.e., the documents submitted by the I.O. along with the chargesheet, had illegally summoned the revisionists, because such power cannot be exercised before collection of "evidence" during trial. At this stage, power conferred under section 193 Cr.P.C. cannot be exercised. Since the impugned order has been passed without considering the relevant law on the point and "evidence" adduced before the trial court, such illegal, erroneous and perverse order should be set aside. In support of his contention the learned counsel for the revisionists has relied upon the principles laid down by the Constitution Bench of the Hon'ble Apex Court in Hardeep Singh and others Vs. State of Punjab and others, 2014 (85) A.C.C. 313 (SC).
Refuting the arguments advanced by the learned counsel for the revisionists, learned counsel for the opposite party no. 2 has submitted that the trial court had passed the impugned order by invoking the power under section 193 Cr.P.C., i.e., acting as a court of original jurisdiction, on the basis of the records transmitted to it, as a result of which committal order has been passed by the learned Magistrate. Learned counsel for the opposite party no.2/informant has relied upon the decisions of Hon'ble Supreme Court in the case of Kishun Singh Vs. State of Bihar, 1993(36) ACC 167 (SC) as well as the principles laid down by the Constitution Bench of the Hon'ble Apex Court in Dharam Pal and others Vs. State of Haryana and another, 2013 (82) ACC 963 (SC).
I have considered the rival contentions of the learned counsels for the parties and gone through the record as well as the principles laid down by the Hon'ble Apex Court on this point.
Perusal of the impugned order dated 25.11.2005 reveals that the said order is silent on the point that under which section of the Criminal Procedure Code the learned Session Judge has invoked the power of summoning the revisionists. Although the perusal of the order of the learned Session Judge dated 16.11.2005 manifests that when the application 9-Kha was moved by the opposite party no.2 informant Arun Kumar Singh and heard by the learned Session Judge, the trial had already commenced after framing of charge against the chargesheeted accused persons and it was fixed for recording of prosecution evidence.
Section 193 of the Criminal Procedure Code speaks of cognizance of offences by court of session and provides as follows:-
"193. Cognizance of offences by Courts of Session.-- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
A close reading of Section 193 Cr.P.C. categorically states that the power of the court of Sessions to take cognizance in this section would commence only after committal of the case by a Magistrate but the said provision opens with a non-obstante clause "except as otherwise expressly provided by this code or by any other law for the time being in force". The section, therefore, is clarified by the said opening words which clearly means that if there is any other provision under Cr.P.C., expressly making a provision for exercise of powers by the court to take cognizance at that very stage, then the same would apply and the provisions of Section 193 Cr.P.C. would not be applicable. Therefore, in this section, the Session court can apply its mind after committal of the case till the time of framing of charge only. Moreover, if the Court came to the conclusion from the materials available on record transmitted to it that in fact an offence is made out even against those persons who have not been committted for trial, then only it has power to proceed against the persons who have not been committed for trial by the Magistrate because till then the trial has not commenced. This principle has been laid down by the Hon'ble Apex Court in Kishun Singh's case (supra) and affirmed by the Constitution Bench of the Hon'ble Apex Court in Dharam Pal's case (supra).
But once the trial of the case has commenced, invoking power under section 193 Cr.P.C. is not at all permissible. The non-obstante clause of Section 193 Cr.P.C. itself would prevent the court to exercise the power enshrined under Section 193 Cr.P.C. at that stage. At the stage of trial, only the provisions of Section 319 Cr.P.C. can come into play for taking cognizance against those persons who have not been committed for trial but their complicity is established by the "evidence" adduced during the trial.
Relevant portion of Section 319 Cr.P.C. reads as under:-
"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."
The latest Constitution Bench of the Hon'ble Supreme Court, while dealing with the aforementioned Section 319 Cr.P.C., in Hardeep Singh's case (supra) held as follows:-
"53. Thus, the application of the provisions of Section 319 Cr.P.C., at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 Cr.P.C. can be exercised only on the basis of the evidence adduced before the Court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge-sheet or any other person who might be an accomplice.
71. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the Court, in relation to statements, and as produced before the Court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether the power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.
80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the Court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. The "evidence" is thus, limited to the evidence recorded during trial.
85. Thus, in view of the above, we hold that power under section 319, Cr.P.C. can be exercised at the stage of completion of examination in chief and Courts 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."
In the instant case, admittedly, when the application in question was moved and heard by the informant, the charge had already been framed by the learned Sessions Judge and the case was fixed for recording of prosecution evidence. Therefore, by applying the principles laid down by the Hon'ble Apex Court in the afore-mentioned cases, it is crystal clear that in this case the learned Sessions Judge had wrongly exercised the power, either under Section 193 or under Section 319 Cr.P.C., while passing the impugned order. This is not the stage where power under Section 193 Cr.P.C. can be utilized because trial had already commenced. Similarly, learned Sessions Judge was also not expected to take cognizance only on the basis of material collected during the investigation at this premature stage of trial, where "evidence" could not be recorded. Hence, in this case the only power which could be exercised by the Sessions Judge was under Section 319 Cr.P.C. and in no other section, and that, too, at an appropriate stage of trial. It was expected from the learned Sessions Judge that the said application be heard and decided after "evidence" recorded during the trial, i.e., in the light of the principles laid down by the Hon'ble Supreme Court in Hardeep Singh's case (supra), in which the word "evidence" used in Section 319 Cr.P.C. has been defined extensively.
Accordingly, this Court is of the opinion that the impugned order appears to have been passed after ignoring the statutory provisions and the principles laid down by the Hon'ble Apex Court in this regard. Thus it is amply clear that the trial court had acted in gross illegality in passing the impugned order at the premature stage of the trial, simply on the basis of the material collected during the investigation and consequently committed serious error in deciding the application in question and taking cognizance against the revisionists in haste, without recording and considering the "evidence" adduced during the trial, i.e., by not applying the provisions under Section 319 Cr.P.C. at an appropriate stage of the trial. Therefore, this revision is allowed and the impugned order dated 25.11.2005 is set aside. The matter is remanded to the trial court with a direction to decide the application 9-Kha moved by the informant, at the appropriate stage of the trial, after affording opportunity of hearing to the parties in accordance with law.
Let a copy of this order be sent to the trial court immediately for ensuring compliance.
Order Date :27.05.2016 LJ/-