Telangana High Court
Kommineni Ramesh vs The State Through Subdivisional Police ... on 5 May, 2020
Author: G. Sri Devi
Bench: G. Sri Devi
HONOURABLE JUSTICE G. SRI DEVI
CRIMINAL REVISION CASE No.1365 of 2019
ORDER:
The present Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C. aggrieved by the order, dated 18.10.2019, passed in Crl.M.P.No.510 of 2019 in S.C.No.4 of 2015 on the file of the Special Sessions Judge for Trial of Cases under S.Cs and S.Ts (P.O.A.) Act-cum-VII-Additional District and Sessions Judge, Khammam, wherein an application filed by the 1st respondent to implead the revision petitioners as A-3 to A-10 in S.C.No.4 of 2015, was allowed.
As seen from the record, the 1st respondent filed Crl.M.P.No.510 of 2019 seeking to implead the revision petitioners as A-3 to A-10 in S.C.No.4 of 2015. The averments in the said petition discloses that the Sub-Divisional Police Officer, Khammam, filed a charge sheet against A-1 and A-2 for the offences punishable under Sections 294 (B), 325 read with Section 34 of I.P.C. and Section 3 (1) (x) of the S.Cs. and S.Ts. (P.O.A.) Act, 1989. During the course of trial, the trial Court examined P.W.1 in-chief on 05.09.2019 and in the chief examination, P.W.1 has categorically deposed that along with A-1 and A-2, the revision petitioners herein also participated in the commission of offence which took place about seven years 2 ago in her village in front of the house of the accused and she further deposed that A-2 along with the revision petitioners herein came to the scene of offence armed with deadly weapons like axes, rods and sticks and attacked on her husband namely Meda Narayana in order to kill him on the ground that he was moving in politics. It is further stated that the report lodged by P.W.1 and her earlier statement recorded by the police under Section 161 of Cr.P.C. reveal the active participation of the revision petitioners herein along with A-2 in order to do away the life of Meda Narayana and in that connection Meda Narayana sustained severe injuries on his head and all over the body and the said assailants also abused him in filthy language by touching the caste name. The S.D.P.O., Khammam, deleted the names of the revision petitioners from the charge sheet, but the evidence of P.W.1 in her chief-examination reveals the presence of the revision petitioners herein at the time of commission of offence. Hence, the petition.
The revision petitioners, who are proposed A-3 to A-10 filed counter stating that initially the crime was registered against A-1, A-2 and the revision petitioners herein and after due investigation only the Sub-Divisional Police Officer, Khammam, had deleted the names of the revision petitioners herein from the charge sheet on the ground that as per the 3 statements of the eyewitnesses recorded by the Investigating Officer no case was established against the revision petitioners herein. It is also stated that though a notice with regard to the deletion of the names of the revision petitioners herein was sent to the de facto complainant, but no protest petition has been filed by her and she also filed a petition in Crl.M.P.No.298 of 2015 on the same grounds, which was dismissed by the Court below and now the present petition is filed only to harass the revision petitioners and at the instance of the de facto complainant, the prosecution filed the present petition.
After considering the rival submissions made, the learned trial Judge allowed the said petition. Challenging the same, the present Criminal Revision Case is filed by the revision petitioners/proposed A-3 to A-10.
Heard learned Counsel for the revision petitioners/ proposed A-3 to A-10; learned Additional Public Prosecutor for the 1st respondent and learned Counsel appearing for the 2nd respondent/de facto complainant.
It has been submitted on behalf of the revision petitioners/proposed A-3 to A-10 that the order passed by the trial Judge is erroneous in law and against the material available on record and as such the same is liable to be set 4 aside. The trial Court, while passing the impugned order, failed to look into the purport of Section 319 Cr.P.C. It is also submitted that the Investigating Officer, after thorough investigation, clearly stated that the statements of the material witnesses i.e., L.Ws.3 to 5, who witnessed the incident, are not established the involvement of the revision petitioners and as such he deleted their names, but the trial Court failed to look into the same and contrary to that when nothing has come on record to connect the revision petitioners with the alleged offences, erroneously allowed the petition and had committed gross irregularity and illegality in passing the impugned order and also exceeded its powers. It is further submitted that the revision petitioners have not committed any such offences and there is no material brought on record by the prosecution to connect the revision petitioners with the commission of offence and as such impleading the revision petitioners as A-3 to A-10 is nothing but an abuse of process of law. It is also submitted that in the final report, it is clearly stated that basing on the examination of eyewitnesses, the involvement of the revision petitioners is not at all established, in such a case filing of a petition under Section 319 Cr.P.C. praying to array the revision petitioners as A-3 to A-10 is highly deprecated. It is further submitted that the trial Court failed to look into the aspect that 5 the protest petition filed by the 2nd respondent/de facto complainant was not pressed at the initial stage and a similar petition filed by her was also dismissed by giving valid reasons through order, dated 08.07.2019, in such a case again entertaining a similar application under Section 319 Cr.P.C. filed by the State is nothing but illegal and exceeding the powers vested with the trial Court. In support of his contentions, he relied on the judgment of the Apex Court in Periyasami and others v. S.Nallasamy1.
Learned Additional Public Prosecutor opposed the revision.
Learned Counsel appearing for the 2nd respondent/ de facto complainant reiterating the contentions made in the petition would submit that the evidence of P.W.1 as well as the statements of P.W.1 and her husband (injured) made to the police also reveal the participation of the revision petitioners in the commission of offence. In support of his contentions, he relied on the judgments of the Apex Court in Rakesh v. State of Haryana2 and in Rajesh and others v. State of Haryana3.
The law relating to Section 319 Cr.P.C. has been well established by the Apex Court in a catena of judgments and the 1 (2019) 3 SCC (Cri) 230 2 (2001) Supreme (Mah) 681 3 ((2019) 6 SCC 368 6 Apex Court has repeatedly held that the power under Section 319 Cr.P.C. must not be exercised in a mechanical manner only because some evidence has been brought on record, the same by itself may not be a ground to issue process under Section 319 Cr.P.C. against the persons, who have not been charge sheeted.
In Michael Machado v. Central Bureau of Investigation4 , the Apex Court held that unless the Court is hopeful that there is a reasonable prospect of the case against the newly added accused ending in their conviction for the offence concerned, the Court shall refrain from adding them as accused.
In Krishnappa v. State of Karnataka5 the Apex Court was of the view that "invocation of power under Section 319 Cr.P.C. should not have been resorted to, since the chances of conviction on the basis of the evidence on record was remote. The power to summon an accused under section 319 Cr.P.C. is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused".
In Brindaban Das and others v. State of West Bengal6, the Apex Court has reiterated the same principle and has held that 4 (2000) 3 SCC 262 5 (2004) 7 SCC 792 6 (2009) 66 ACC 273 (SC) 7 "while exercising the power under Section 319 Cr.P.C., the Court is not merely required to take note of the fact that the name of a person has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned".
In Mohd. Shafi v. Mohd. Rafiq and Another7, the Apex Court summed up the legal position regarding summoning of any person as accused Under Section 319 Cr.P.C. which is as under:
"1. The power Under Section 319 Cr.P.C. is not to be exercised mechanically on the ground that some evidence has come on record implicating the person sought to be made an accused.
2. There is no compelling duty on the Court to proceed against those persons against whom no charge sheet has been submitted.
3. The power Under Section 319 Cr.P.C. is discretionary and should be exercised to achieve criminal justice and the Court should not turn against another person simply because it has come across some evidence connecting that person also with the offence. The court should exercise judicial discretion in the matter considering all the relevant facts and circumstances.
4. The Court must be satisfied that the other person, who had not been arrayed as accused, had also participated in commission of the offence.7
(2007) 58 ACC 254 8
5. The power Under Section 319 Cr.P.C. is extraordinary power conferred on the court and this should be used very sparingly if the compelling reasons exist for taking cognizance against other accused persons against whom no charge sheet has been submitted.
6. There must be reasonable prospect of the case against the newly added accused ending in his conviction for the offence concerned and then only that person should be summoned as an accused otherwise the Court should refrain from adding him as an accused.
7. The Court shall exercise a judicial discretion taking into consideration conspectus of the case including the stage at which the trial has proceeded and the quantum of evidence collected till the date and time spent by the Court for collecting such evidence while passing the order of summoning the person Under Section 319 Cr.P.C.
8. The satisfaction whether there exists likelihood of conviction of the person to be summoned as accused can be arrived at inter alia upon cross examination of the witness naming him and so the orders for summoning a person as accused Under Section 319 Cr.P.C. should be passed after cross examination of the witness.
9. The Court concerned may also take into consideration other evidence before passing an order for summoning a person as an accused Under Section 319 Cr.P.C."
In the instant case, it appears that the learned trial Court has not taken into consideration the above aspects of the case which he was bound to consider while passing the order for impleading the revision petitioners Under Section 319 Cr.P.C., and the trial Court has no where recorded any specific finding 9 as to whether or not the evidence adduced by the complainant would be sufficient to record a conviction against the revision petitioners. In the absence of such finding the impugned order cannot be sustained and it is liable to be set aside.
For the aforesaid reasons and having regard to the law laid down by the Apex Court in the aforesaid decisions, the Criminal Revision Case is allowed and the order, dated 18.10.2019, passed in Crl.M.P.No.510 of 2019 in S.C.No.4 of 2015 on the file of the Special Sessions Judge for Trial of Cases under S.Cs and S.Ts (P.O.A.) Act-cum-VII-Additional District and Sessions Judge, Khammam, is hereby set aside.
Miscellaneous petitions, if any, pending, shall stand closed.
____________________ JUSTICE G.SRI DEVI 05.05.2020 Gsn 10