CASE NO.: Appeal (crl.) 1305 of 2007 PETITIONER: Guriya @ Tabassum Tauquir and Ors RESPONDENT: State of Bihar and Anr DATE OF JUDGMENT: 28/09/2007 BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1305 OF 2007
(Arising out of S.L.P.(Crl.) No.6219 of 2005)
DR. ARIJIT PASAYAT, J.
1. Leave granted.
2. The appellants call in question legality of the order
passed by a learned Single Judge of the Patna High Court
dismissing the Criminal Revision filed by them. Challenge
before the High Court was to the revisional order passed by
learned Additional Sessions Judge, Fast Track Court No.1,
Motihari. By order dated 10.09.2004, learned Additional
Sessions Judge set aside the order of learned Judicial
Magistrate, Motihari in G.R. No.996 of 99/Tr. No.693 of 2004.
3. Background facts in a nutshell are as follows:-
FIR was lodged on 29.05.1999 by Manzoor Baitha
alleging that his parents, brother and sisters had a fight with
his family members. Annu Siddiqui hit on the head of his son
Akbar Hawari with the butt of a pistol and he also snatched
away a wrist watch of his son. Cognizance was taken on
27.9.1999 and charge-sheet was filed on 09.09.1999. Charges
were framed on 14.3.2000. Only three persons were arrayed
as accused persons and the present appellants were not
arrayed as accused. It appears that a protest petition was
filed before charges were framed on 14.03.2000 but the same
was rejected. Recording of prosecution evidence commenced
on 16.04.2001 and continued till 29.04.2002. The prosecution
evidence was thereafter closed and the statement of accused
persons was recorded in terms of Section 313 of the Code of
Criminal Procedure, 1973 (in short ‘Cr.P.C.’) on 19.02.2003.
Thereafter on 07.05.2003, an application in terms of Section
311 Cr.P.C. was filed and was allowed and two more witnesses
i.e. PWs 4 and 5 were examined. An application under Section
319 Cr.P.C. was filed on 14.01.2004 stating that new evidence
has surfaced which requires the trial of the present appellants.
It is to be noted that PWs 4 and 5 were examined on 6.1.2004
pursuant to the order in the application filed under Section
311 Cr.P.C. The petition filed under Section 319 Cr.P.C. was
rejected by the Trial Court holding that no case was made out
for putting the appellants on trial. Learned Sessions Judge
was moved for revision and the same was allowed. The High
Court dismissed the revision petition filed on the ground that
there are materials against the appellants.
4. Learned counsel for the appellants submitted that the
application under Section 319 Cr.P.C. was nothing but an
abuse of process of the court as the narration of facts above
would go to show. Every possible attempt was made to
introduce materials against the appellants which were not on
record. Even after the examination of the accused under
Section 313 Cr.P.C., an application under Section 311 Cr.P.C.
was allowed. Two witnesses were examined on 6.1.2004. Even
their evidence in no way connects the appellants to the alleged
incident. PWs 1, 2 and 3, who were examined on 16.04.2001,
8.01.2002 and 29.04.2002 merely stated about the alleged
presence of the appellants. No definite role was ascribed to
them. Therefore, the application in terms of Section 319
Cr.P.C. was not maintainable and in any event was mala fide.
5. Learned counsel for the State submitted that the
prosecution has not filed any application under Section 319
Cr.P.C. It was only PW-1, the informant who had filed such an
application. Learned counsel for the complainant respondent
No. 2 submitted that the appellants were named in the FIR.
PWs 1, 2 and 3 spoke about their presence. Therefore, they
should have been arrayed as accused persons.
6. The parameters for dealing with an application under Section
319 Cr.P.C. have been laid down by this Court in several cases.
7. In Michael Machado and Anr. v. Central Bureau Of
Investigation and Anr. (2000 (3) SCC 262) it was observed as
follows:-
“The basic requirements for invoking the
above section is that it should appear to the
court from the evidence collected during trial
or in the inquiry that some other person, who
is not arraigned as an accused in that case ,
has committed an offence for which that
person could be tried together with the
accused already arraigned. It is not enough
that the court entertained some doubt, from
the evidence, about the involvement of another
person in the offence. In other words, the
court must have reasonable satisfaction from
the evidence already collected regarding two
aspects. First is that the other person has
committed an offence. Second is that for such
offence that other person could as well be tried
along with the already arraigned accused.
But even then what is conferred on the
court is only a discretion as could be discerned
from the words “the court may proceed against
such person.” The discretionary power so
conferred should be exercised only to achieve
criminal justice. It is not that the court should
turn against another person whenever it comes
across evidence connecting that other person
also with the offence. A judicial exercise is
called for, keeping a conspectus of the case,
including the stage at which the trial has
proceeded already and the quantum of
evidence collected till then, and also the
amount of time which the court had spent for
collecting such evidence. It must be
remembered that there is no compelling duty
on the court to proceed against other persons.
The court while deciding whether to
invoke the power under Section 319 of the
Code, must address itself about the other
constraints imposed by the first limb of sub-
section (4), that proceedings in respect of
newly-added persons shall be commenced
afresh and the witnesses re-examined. The
whole proceedings must be recommended from
the beginning of the trial, summon the
witnesses once again and examine them and
cross-examine them in order to reach the stage
where it had reached earlier. If the witnesses
already examined are quite large in number
the court must seriously consider whether the
objects sought to be achieved by such exercise
are worth wasting the whole labour already
undertaken. Unless the court is hopeful that
there is a reasonable prospect of the case as
against the newly-brought accused ending in
being convicted of the offence concerned we
would say that the court should refrain from
adopting such a course of action”
8. Shashikant Singh Vs. Tarkeshwar Singh and Anr. (2002 (5)
SCC 738), it was, inter-alia observed as follows:-
“The intention of the provision here is
that where in the course of any enquiry into,
or trial of, an offence, it appears to the court
from the evidence that any person not being
the accused has committed any offence, the
courts may proceed against him for the offence
which he appears to have committed. At that
stage, the court would consider that such a
person could be tried together with the
accused who is already before the court facing
the trial. The safeguard provided in respect of
such person is that, the proceedings right from
the beginning have mandatorily to be
commenced afresh and the witnesses reheard.
In short, there has to be a de novo trial against
him. The provision of de novo trial is
mandatory. It vitally affects the rights of a
person so brought before the court. It would
not be sufficient to only tender the witnesses
for the cross-examination of such a person.
They have to be examined afresh. Fresh
examination-in-chief and not only their
presentation for the purpose of the cross-
examination of the newly added accused is the
mandate of Section 319 (4). The words “could
be tried together with the accused” in Section
319 (1), appear to be only directory. “Could
be” cannot under these circumstances be held
to be “must be”. The provision cannot be
interpreted to mean that since the trial in
respect of a person who was before the court
has concluded with the result that the newly
added person cannot be tried together with the
accused who was before the court when order
under Section 319(1) was passed, the order
would become ineffective and inoperative,
nullifying the opinion earlier formed by the
court on the basis of the evidence before it that
the newly added person appears to have
committed the offence resulting in an order for
his being brought before the court.”
9. Again in Krishnappa Vs. State of Karnataka (2004 (7)
SCC 792), it was observed as follows:-
“It has been repeatedly held that the
power to summon an accused is an
extraordinary power 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.
In the present case, we need not go into
the question whether prima facie the evidence
implicates the appellant or not and whether
the possibility of his conviction is remote, or
his presence and instigation stood established,
for in our view the exercise of discretion by the
Magistrate, in any event of the matter, did not
call for interference by the High Court, having
regard to the facts and circumstances of the
case.
In Michael Machado v. Central Bureau of
Investigation construing the words “the court
may proceed against such person” in Section
319 CrPC, this Court held that the power is
discretionary and should be exercised only to
achieve criminal justice and that the court
should not turn against another person
whenever it comes across evidence connecting
that other person also with the offence. This
Court further held that a judicial exercise is
called for, keeping a conspectus of the case,
including the stage at which the trial has
already proceeded and the quantum of
evidence collected till then, and also the
amount of time which the Court had spent for
collecting such evidence. The court, while
examining an application under Section 319
CrPC, has also to bear in mind that there is no
compelling duty on the court to proceed
against other persons. In a nutshell, it means
that for exercise of discretion under Section
319 CrPC, all relevant factors, including the
one 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.
Applying the test as aforesaid to the facts
of the present case, in our view, the trial
Magistrate is right in rejecting the application.
The incident was of the year 1993. Seventeen
witnesses had been examined. The statements
of the accused under Section 313 CrPC had
been recorded. The role attributed to the
appellant, as per the impugned judgment of
the High Court, was of instigation. Having
regard to these facts coupled with the
quashing of proceedings in the year 1995
against the appellant, it could not be held that
the discretion was illegally exercised by the
Trial Magistrate so as to call for interference in
exercise of revisional jurisdiction by the High
Court.”
10. The scope and ambit of Sec. 319 of the Code have been
elucidated in several decisions of this Court. In Joginder
Singh and another v. State of Punjab and another (AIR 1979
SC 339), it was observed:
“6. A plain reading of Sec. 319 (1) which
occurs in Chapter XXIV dealing with general
provisions as to inquiries and trials, clearly
shows that it applies to all the Courts
including a Sessions Court and as such a
Sessions Court will have the power to add any
person, not being the accused before it, but
against whom there appears during trial
sufficient evidence indicating his involvement
in the offence, as an accused and direct him to
be tried along with the other accused;.”
11. It was further observed in paragraph 9:
“9. As regards the contention that the phrase
‘any person not being the accused’ occurred in
Sec. 319 excludes from its operation an
accused who has been released by the police
under Sec. 169 of the Code and has been
shown in column No. 2 of the charge sheet, the
contention has merely to be stated to be
rejected. The said expression clearly covers
any person who is not being tried already by
the Court and the very purpose of enacting
such a provision like Sec. 319(1) clearly shows
that even persons who have been dropped by
the police during investigation but against
whom evidence showing their involvement in
the offence comes before the Criminal Court
are included in the said expression.”
12. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi
and Ors. (1983 (1) SCC 1) after referring to the decision in
Joginder Singh’s case (supra), it was observed:-
“19. In these circumstances, therefore, if the
prosecution can at any stage produce evidence
which satisfies the Court that the other
accused or those who have not been arrayed
as accused against whom proceedings have
been quashed have also committed the offence
the Court can take cognizance against them
and try them along with the other accused.
But, we would hasten to add that 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. More than
this we would not like to say anything further
at this stage. We leave the entire matter to the
discretion of the Court concerned so that it
may act according to law. We would, however,
make it plain that the mere fact that the
proceedings have been quashed against
respondent Nos. 2 to 5 will not prevent the
court from exercising its discretion if it is fully
satisfied that a case for taking cognizance
against them has been made out on the
additional evidence led before it.”
13. On a careful reading of Sec. 319 of the Code as well as
the aforesaid two decisions, it becomes clear that the trial
court has undoubted jurisdiction to add any person not being
the accused before it to face the trial along with other accused
persons, if the Court is satisfied at any stage of the proceeding
on the evidence adduced that the persons who have not been
arrayed as accused should face the trial. It is further evident
that such person even though had initially been named in the
F.I.R. as an accused, but not charge sheeted, can also be
added to face the trial. The trial court can take such a step to
add such persons as accused only on the basis of evidence
adduced before it and not on the basis of materials available in
the charge-sheet or the case diary, because such materials
contained in the charge sheet or the case diary do not
constitute evidence. Of course, as evident from the decision
reported in Sohan Lal and others v. State of Rajasthan, (AIR
1990 SC 2158) the position of an accused who has been
discharged stands on a different footing.
14. Power under Section 319 of the Code can be exercised by
the Court suo motu or on an application by someone including
accused already before it, if it is satisfied that any person
other than accused has committed an offence and he is to be
tried together with the accused. The power is discretionary
and such discretion must be exercised judicially having regard
to the facts and circumstances of the case. Undisputedly, it is
an extraordinary power which is conferred on the Court and
should be used very sparingly and only if compelling reasons
exist for taking action against a person against whom action
had not been taken earlier. The word “evidence” in Section 319
contemplates evidence of witnesses given in Court. Under Sub-
section (4)(1)(b) of the aforesaid provision, it is specifically
made clear that it will be presumed that newly added person
had been an accused person when the Court took cognizance
of the offence upon which the inquiry or trial was commenced.
That would show that by virtue of Sub-section (4)(1)(b) a legal
fiction is created that cognizance would be presumed to have
been taken so far as newly added accused is concerned. (See
Lok Ram v. Nihal Singh and Anr. (AIR 2006 SC 1892)
15. The factual position noted above goes to show that there
was no new material after examination of the accused
persons under Section 313 Cr.P.C., which threw any light on
the incident. The evidence of PWs 4 and 5 is not the basis of
the application under Section 319 Cr.P.C. as they have not
spoken anything about the appellants.
16. As noted above, PWs 1,2 and 3 have stated about the
presence of the appellants without any definite role being
ascribed to them in their evidence recorded on 16.04.2001,
08.01.2002 and 29.04.2002. If really the complainant had any
grievance about the appellants being not made accused, that
could have, at the most, be done immediately after the
recording of evidence of PWs 1,2 and 3. That has apparently
not been done. Additionally, after the charge-sheet was filed,
a protest petition was filed by the complainant which was
dismissed. No explanation whatsoever has been offered as to
why the application in terms of Section 319 Cr.P.C. was not
filed earlier. The revisional court did not deal with these
aspects and came to an abrupt conclusion that all the PWs
have stated that the appellants have committed overt acts and
their names also find place in the protest petition.
Undisputedly, no overt act has been attributed to the
appellants by PWs 1, 2 and 3. Nothing has been stated about
the appellants by PWs 4 and 5. There was mention of their
names in the FIR. A protest petition was filed. Same was also
rejected. These could not have formed the basis of accepting
the prayer in terms of Section 319 Cr.P.C. The High Court’s
order, to say the least, is bereft of any foundation. It merely
states that there are materials against the petitioners before it.
It also did not deal with various aspects highlighted above.
17. Above being the position, the order of the High Court and
that of learned Additional Sessions Judge cannot be
maintained and are set aside. The Trial Court had rightly
rejected the application filed under Section 319 Cr.P.C.
18. The appeal is, accordingly, allowed.