Rajasthan High Court - Jodhpur
Shridev Singh And Anr vs State on 31 August, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 561/2017
1. Shridev Singh S/o Mangesh Singh, By Caste Rajput,
Resident Of Ajitpura, Tehsil Bhadra, District
Hanumangarh.
2. Rajdev Singh S/o Mangesh Singh, By Caste Rajput,
Resident Of Ajitpura, Tehsil Bhadra, District
Hanumangarh.
----Appellants
Versus
State Of Rajasthan Through Public Prosecutor.
----Respondent
For Appellant(s) : Dr. Sachin Acharya, Sr. Adv. Assisted
by Mr. Rahul Rajpurohit
For Respondent(s) : Mr. Mahipal Bishnoi, P.P.
Mr. S.K. Verma
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 25/08/2022 Pronounced on 31/08/2022 REPORTABLE
1. This Criminal Appeal has been preferred under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 claiming the following reliefs:-
"It is, therefore, most respectfully prayed on behalf of petitioners that the Cr. Revision petition may kindly be allowed and the impugned order dated 25.1.2017 passed by the Special Court Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Hanumangrah in Criminal original case No.21/2013, allowing the application u/s 319 Cr.p.c. filed by the complainant and taking cognizance against the petitioners under section 436,450 I.P.C. and 3(2)(4), 3(2)(5) S.C.S.T. Act. May kindly be quashed and set aside and the revision petition filed by the petitioner may kindly be ordered to be allowed in toto;
Any other appropriate order or direction which this Hon'ble Court deems fit in the facts and circumstances of the case may kindly be passed in favour of the humble petitioners."(Downloaded on 31/08/2022 at 10:51:40 PM)
(2 of 17) [CRLA-561/2017]
2. Brief facts of this case, as placed before this Court by Dr.Sachin Acharya, learned Senior Counsel assisted by Mr.Rahul Rajpurohit appearing on behalf of the appellants, are that an F.I.R.
bearing no. 157/2012 was lodged at Police Station Bhirani by complainant Smt. Hemlata against the petitioners and others for the offences under Sections 3(2)(iii) SC/ST (Prevention of Atrocities) Act, 1989, wherein it was alleged that the complainant R/o Ajeetpura, had paid a visit to her son on 29.06.2012 at Sri Ganganagar, and on that night, at about 10:30 - 11 p.m. one Shiv Bhagwan @ Sanuda, along with the present petitioners set her house, situated at Ajeetpura, ablaze. And that, upon investigation, a charge-sheet for the offences under Sections 436, 450 I.P.C. and Sections 3 (2) (iv) and 3(2) (v) was submitted against Shiv Bhagwan before the Court of the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Hanumangarh; during the trial of which, an application under Section 319 Cr.P.C. was preferred by the complainant, on the basis of certain statements made by P.W.-
1 Indersingh and P.W.-3, to array the present petitioners as accused in the ongoing trial in the Criminal Case, bearing No. 21/2013, which came to be allowed by the learned Court; and cognizance was taken against the present petitioners for the aforementioned offences.
2.1 Learned Senior Counsel further submitted that the learned Court below has erred in allowing the application preferred by the complainant under Section 319 Cr.P.C. and that the impugned order suffers on count of the fact that the learned Court below (Downloaded on 31/08/2022 at 10:51:40 PM) (3 of 17) [CRLA-561/2017] ought to have, with respect to the evidences placed on record before it, satisfied itself to a degree higher than that required at the stage of framing of charge or taking cognizance, but less than that required to fully assess whether the accused would be convicted or acquitted for the offences alleged against them, as the case may be.
2.2 Learned Senior Counsel further submitted that the F.I.R., bearing No. 157/2012, in the present case, dated 02.07.2012, was filed after a delay of 4 days, in turn, calling into question the version of the complainant.
2.3 Furthermore, learned Senior Counsel also submitted that owing to the fact that the concerned police authorities after due investigation, did not find the offences to be made out against the present petitioners, did not file charge-sheet against them, but only against the accused-Shiv Bhagwan. And that, the learned Court below ought to have appreciated the same, but instead chose to allow the Section 319 Cr.P.C. application preferred by the complainant, on the basis of the statements of prosecution witnesses already examined by the concerned investigating authorities, without stating any reasons whatsoever for the same.
2.4 Learned Senior Counsel further submitted that the charge-
sheet against the sole accused-Shiv Bhagwan, was accepted by the learned Court below, and nor a protest petition was preferred by the complainant. Furthermore, the story of the complainant is not supported by any eye-witness either, and that the concerned police authorities rightly found no charges to be made out under the aforementioned offences against the present petitioners.
(Downloaded on 31/08/2022 at 10:51:40 PM)(4 of 17) [CRLA-561/2017] 2.5 Learned Senior Counsel therefore submitted that the
impugned order passed by the learned Court below deserves to be quashed and set aside, especially since the order is not reasoned nor is a speaking order, failing to have duly considered the statutory intent of the powers conferred upon the competent Criminal Court to array a person as accused, in an ongoing trial, under Section 319 Cr.P.C.
2.6 Learned Senior Counsel, in support of the submissions so made, placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Brijendra Singh & Ors. Vs. State of Rajasthan (2017) 7 SCC 706.
Relevant portion of the same is reproduced hereinunder:-
"The Appellants were not arraigned as Accused in the chargesheet. The charges were framed against those who were Accused in the chargesheet and prosecution evidence is being recorded. The Appellants are summoned as additional Accused persons Under Section 319 of Code of Criminal Procedure, 1973 (Cr.P.C.) to face the trial along with other Accused persons.
The police after investigation, prepared the Final Report of closure of the case against the Appellants which was approved by the SP. In this manner, after completing the investigation, the police filed the Challan only against other Accused persons, Powers of the Court to proceed Under Section 319 Code of Criminal Procedure even against those persons who are not arraigned as accused, cannot be disputed. This provision is meant to achieve the objective that real culprit should not get away unpunished. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab and Ors., (2014) 3 SCC 92, explained the aforesaid purpose behind this provision in the following manner:
8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the Accused does not (Downloaded on 31/08/2022 at 10:51:40 PM) (5 of 17) [CRLA-561/2017] get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under Code of Criminal Procedure indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished.
xx xx xx
12. Section 319 Code of Criminal Procedure springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Code of Criminal Procedure.
13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said Accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Code of Criminal Procedure?
xx xx xx
19. The court is the sole repository of justice and a duty is cast upon it to uphold the Rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an Accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.
It also goes without saying that Section 319 Code of Criminal Procedure, which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge- sheet is filed and before the pronouncement of the judgment, except during the stage of Section 207/208 Code (Downloaded on 31/08/2022 at 10:51:40 PM) (6 of 17) [CRLA-561/2017] of Criminal Procedure, the committal etc., which is only a pre-trial stage intended to put the process into motion.
In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word 'evidence' used in Section 319(1) Code of Criminal Procedure has been used in a comprehensive sense and indicates the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word 'evidence' has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that 'evidence' Under Section 319 Code of Criminal Procedure could even be examination-in- chief and the Court is not required to wait till such evidence is tested on cross-examination, as 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 trial in the offence.
The moot question, however, is the degree of satisfaction that is required for invoking the powers Under Section 319 Code of Criminal Procedure and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh's case and answered in the following manner:
At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Code of Criminal Procedure, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan (2014) 3 SCC 321, held that on the (Downloaded on 31/08/2022 at 10:51:40 PM) (7 of 17) [CRLA-561/2017] objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the Accused has committed an offence for which such person could be tried together with the already arraigned Accused persons.
xx xx xx Power Under Section 319 Code of Criminal Procedure 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.
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 Code of Criminal Procedure. In Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure to form any opinion as to the guilt of the accused.
(emphasis supplied) In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated:
Power Under Section 319 Code of Criminal Procedure can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an Accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power Under Section 319 Code of Criminal Procedure. No doubt, such evidence that has (Downloaded on 31/08/2022 at 10:51:40 PM) (8 of 17) [CRLA-561/2017] surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court Under Section 319 Code of Criminal Procedure and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. 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 chargesheet 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. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the Appellants. The Appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these Appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the Appellants at the place of incident had also made statements Under Section 161 Code of Criminal Procedure to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the Appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that Appellants plea of alibi was correct.
This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there Under Section 161 Code of Criminal (Downloaded on 31/08/2022 at 10:51:40 PM) (9 of 17) [CRLA-561/2017] Procedure recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. Appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the Appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the Appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny ."
3. On the other hand, learned Public Prosecutor as well as learned counsel for the complainant opposed the aforesaid submissions made on behalf of the petitioners.
4. Learned counsel for the complainant submitted that the learned Court below has rightly allowed the application under Section 319 Cr.P.C., as preferred by the complainant, in the ongoing trial in the Criminal Case bearing No. 21/2013, while exercising its powers under Section 319 Cr.P.C. and therefore, the impugned order does not merit interference by this Court.
5. Heard learned counsel for both parties and, perused the record of the case and the judgment cited at the Bar.
6. This Court observes that the issue that arises in the present case is whether the competent Criminal Court, while exercising its (Downloaded on 31/08/2022 at 10:51:40 PM) (10 of 17) [CRLA-561/2017] powers under Section 319 Cr.P.C. and allowing the application so preferred by the complainant under the said provision of law, ought to have considered evidence at a higher standard than that required at the stage of framing of charge or, of taking cognizance.
Section 319 Cr.P.C. for the sake of brevity is reproduced as hereunder:-
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.
(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 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."
7. This Court further observes that the position of law regarding the issue herein is settled, apart from the judgment as cited by the learned Senior Counsel, of Brijendra Singh (supra), through the judgments of the Hon'ble Apex Court rendered in the decisions (Downloaded on 31/08/2022 at 10:51:40 PM) (11 of 17) [CRLA-561/2017] of Sarabjit Singh and Ors. Vs. State of Punjab and Ors.
(2009) 16 SCC 46, Hardeep Singh and Ors. Vs. State of Punjab and Ors. (2014) 3 SCC 92, Periyasami and Ors. Vs. S. Nallasamy (2019) 4 SCC 341, Sagar Vs. State of U.P. and Ors. (2022) 6 SCC 389 and Sartaj Singh Vs. State of Haryana & Ors. (2021) 5 SCC 337.
7.1 In Sarabjit Singh (supra), it was held as follows:-
"The extent of the power of a Sessions Judge to summon persons other than the accused to stand trial in a pending case came up for consideration before this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi 1983 CriLJ 159. Therein, this Court while holding that the provision confers a discretionary jurisdiction on the court added "this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
Interpretation of the aforementioned provision, in the light of the said decision, came up for consideration before various courts from time to time. We may take note of some of them.
This Court in Lok Pal v. Nihal Singh 2006CriLJ2366 observed:
...The court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors, including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.
In Mohd. Shafi v. Mohd. Rafiq and Anr. 2007CriLJ3198 , this Court held:
7. Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled.
Commission of an offence by a person not facing trial, must, therefore, appears to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.
(Downloaded on 31/08/2022 at 10:51:40 PM)(12 of 17) [CRLA-561/2017] The decision of this Court in Mohd. Shafi (supra), however, has been explained in Lal Suraj @ Suraj Singh and Anr. v. State of Jharkhand (2009)2SCC696 , stating: ...The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.
We have noticed hereinbefore that Mohd. Shafi (supra) has been explained in Lal Suraj (supra) holding that a power under Section 319 of the Code can be exercised only on the basis of fresh evidence brought before it and not on the basis of the materials which had been collected during investigation particularly when a final form was submitted and the same had been accepted by the Magistrate concerned. There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi (supra) is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken.
The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question' 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. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.
We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. (2007) 4 SCC 773 , this Court opined:
...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if (Downloaded on 31/08/2022 at 10:51:40 PM) (13 of 17) [CRLA-561/2017] compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court...
An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose.
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. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. 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.
We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to the learned Sessions Judge for consideration of the matter afresh."
7.2 In Hardeep Singh (supra), it was observed as under:
"In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have (Downloaded on 31/08/2022 at 10:51:40 PM) (14 of 17) [CRLA-561/2017] contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Code of Criminal Procedure.
Power under Section 319 Code of Criminal Procedure is a discretionary and an extra-ordinary 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.
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 Code of Criminal Procedure In Section 319 Code of Criminal Procedure 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 (Downloaded on 31/08/2022 at 10:51:40 PM) (15 of 17) [CRLA-561/2017] convicted'. There is, therefore, no scope for the Court acting under Section 319 Code of Criminal Procedure to form any opinion as to the guilt of the accused."
7.3 In Periyasami (supra), it was held thus :
"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.
Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the Complainant is a husband and has initiated criminal proceedings against family of his in-laws and when their names or other identity were not disclosed at the first opportunity."
7.4 In Sagar (supra), it was held as under :
"The Constitution Bench has given a caution that power Under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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."
8. This Court therefore observes that the position of law is settled and is clear as crystal, and at the cost of repetition reiterates the same being that the power under Section 319 Cr.P.C. is a discretionary and extraordinary power, one which must not be exercised in a casual and cavalier manner, but only when there is strong and cogent evidence, and an accused may be so (Downloaded on 31/08/2022 at 10:51:40 PM) (16 of 17) [CRLA-561/2017] summoned if there is more than a prima facie case as is required at the stage of framing of charge but less than the satisfaction required at the time of conclusion of trial, convicting the accused.
Such powers enjoined upon the competent Criminal Courts under Section 319 Cr.P.C. are to be exercised sparingly and after duly appreciating the factual matrix of each case, and with regard to the evidences so placed on record before the concerned Court.
9. Now adverting to the facts of the present case, the learned Court below passed the impugned order, dated 25.1.2017, wherein the decision of the Constitution Bench of the Hon'ble Apex Court, rendered in Hardeep Singh (supra) has been taken into consideration by the learned Court below. The learned Court below has rightly found that although there are certain inconsistencies in the statements of P.W.-1 Indersingh and P.W.-3 Sumestha, the inconsistencies in such evidences are not of such a degree that indicate the non-involvement of the present petitioners in the incident in question. And that, looking into the overall evidences placed on the record before it, it appears that the present petitioners had some role to play in the incident in question, being lighting the tent/house on her plot ablaze. And that, therefore the application under Section 319 Cr.P.C., so preferred by the complainant, was accepted by the learned Court below.
10. This Court therefore finds, that the learned Court below has taken into due consideration the overall facts and circumstances of the present case, along with the evidences placed before it on the record and after making sufficient consideration, that the learned Court below has assessed the evidence to a level beyond that of (Downloaded on 31/08/2022 at 10:51:40 PM) (17 of 17) [CRLA-561/2017] framing of charge, and in the present factual matrix, wherein the present petitioners were named in the F.I.R. and in the statements made by the aforementioned prosecution witnesses under their Section 161 Cr.P.C statements, the learned court below has rightly passed the impugned order allowing the Section 319 Cr.P.C.
application of the complainant to array the present petitioners as accused persons in the criminal case pending before it.
11. This Court, in light of the aforesaid observations and in the peculiar facts and circumstances of the present case, does find that a case warranting its interference is made out, and therefore the impugned order is upheld and affirmed.
12. Consequently, the present appeal fails and is hereby dismissed. All pending applications are disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
skant/-
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