Allahabad High Court
Sukhvir Singh vs State Of U.P. And Another on 13 February, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL REVISION No. - 1402 of 1992 Revisionist :- Sukhvir Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Dileep Kumar,Dharmendra Singhal,Rajeev Gupta Counsel for Opposite Party :- A.G.A.,D.Dahma Hon'ble Raj Beer Singh,J.
1. None for revisionist.
2. Learned AGA for the State is present.
3. On previous date also no one has appeared on behalf of the revisionist.
4. This revision is pending since the year 1992. It appears that the parties are not interested in pursuing this criminal revision. In view of these facts, no useful purpose would be served by keeping this revision pending. Hence the revision is being decided on merits.
5. Heard learned AGA for State and perused the record.
6. This revision has been preferred against the order dated 09.09.1992 passed by learned Second Additional Sessions Judge, Aligarh in S.T. No.534 of 1988 (State vs. Neksey and others), under Section 308 I.P.C., whereby the application filed under Section 319 Cr.P.C. for summoning of one Kunwar Pal, Rajveer, Karua, Vijaipal, Rajendra, Om Prakash, Chandra Pal, Rajua, Ram Swaroop, Shri Ram and Babu as accused has been rejected.
7. It appears from record that the revisionist has lodged first information report of this case against 12 accused persons but charge-sheet was filed against the opposite party no.2 Neksey only. After statement of two prosecution witnesses, the revisionist/ informant has filed an application under Section 319 Cr.P.C. for summoning of the above stated persons as accused. It appears that role of causing injuries to the injured has been assigned to opposite party no.2 Neksey. It also appears that the revisionist has already filed a complaint before the Court of Magistrate.
8. Before considering the merits of the contentions, it would be relevant to refer to Section 319 Cr.P.C. which 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.
.......
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the 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."
9. By perusing the provisions of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused. In case of Hardeep Singh Vs State of Punjab 2014 0 Supreme (SC) 27, the Hon'ble Apex Court held as under:
"We accordingly sum up our conclusions as follows:
Question Nos.1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No. II Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. IV Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No.V Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?
A. 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 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
10. Considering the aforesaid pronouncements it is clear that power under Section 319 Cr.P.C 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. Though only a prima facie case is to be established from the evidence led before the court, but 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 Cr.P.C. It has to be keep in mind that since it is a discretionary power given to the court under Section 319 Cr.P.C and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner.
11. Considering the aforesaid legal position, in the instant matter it appears the Court below has assigned appropriate reasons for rejection of application filed by the revisionist under Section 319 Cr.P.C. as stated above. The role of causing injuries to the injured has been assigned to co-accused Neksey. No specific role was assigned to above stated 11 persons, who are being sought to be summoned under Section 319 Cr.P.C. After perusing the record, it appears that there is no material illegality or perversity or error of jurisdiction in the impugned order. The revision lacks merit and thus liable to be dismissed.
12. Revision is dismissed. Interim order, if any, stands vacated.
Order Date :- 13.2.2023 SP/-