Chandra Bhan Singh and Others vs State of U.P.

M.C. Jain, J.—The Applicants Chandra Bhan Singh, Kailash Singh and Budhai Singh by an order dated 15.12.1994, passed by Sri Kartar Singh, XIIth Addl. Sessions Judge, Moradabad in S.T. No. 903 of 1991 State v. Mukesh alias Kaluwa, have been summoned in exercise of powers u/s 319 Code of Criminal Procedure to face trial u/s 307/304, I.P.C. in S.T. No. 903Aof 1991.

The facts are few. The Applicants were named in an F.I.R. lodged on 25.12.1989 at 2.30 p.m. at P.S. Navgava Sadat, District Moradabad with regard to an occurrence which took place on that day at 12.30 p.m. The life of one Bhanu was cut short in the said incident. The F.I.R. was made by Veer Bhan. Fires had also been allegedly shot by them on complainant Veer Bhan and Dinesh who had escaped unhurt. However, one Mukesh alias Kaluwa figured during the course of investigation and he was put at trial in S.T. No. 903 of 1991. He was acquitted by the judgment dated 15.12.1994 in question but the Court took cognizance against the present Applicants in exercise of powers u/s 319, Code of Criminal Procedure on the ground that they had been named in the F.I.R. and evidence had come to be there against them before the Court in the testimony of complainant, P.W. 1 Veer Bhan and P.W. 2 Dinesh. The evidence was to the effect that the shot opened by the Applicant Chandra Bhan had killed Bhanu whereas the remaining two Applicants had opened fire on the complainant Veer Bhan and Dinesh who had, however, escaped unhurt.

I have heard learned Counsel for the Applicants and learned A.G.A. from the side of the State.

It is argued by the learned Counsel for the Applicants that the police had submitted final report against them after the investigation of the case and as such, there could be no justification for summoning them u/s 319, Code of Criminal Procedure This argument has no merit. Admittedly, the three Applicants were named in the F.I.R. made by an eye-witness Veer Bhan and the final report submitted by the police after investigation could not be the last word. It could not overshadow the evidence that had come to be there before the Court in the testimony of eye-witnesses that they were the real culprits. The police, during investigation, could not assume the role of the Court by recording a verdict that they had wrongly been named in the F.I.R. The condition requisite for proceeding against someone in exercise of powers u/s 319, Code of Criminal Procedure is that during the course of enquiry into or trial of an offence, it must appear to the Court from the evidence that any person not being the accused has committed the offence for which such person could be tried. In such eventuality, the Court may proceed against such person for the offence, which he appears to have committed. As the Applicants came to be named as the culprits in the testimony of eye-witnesses, namely, P.W.I Veer Bhan and P.W. 2 Dinesh in S.T. No. 903 of 1991, State v. Mukesh alias Kaluwa, the Court could proceed against them by making an order u/s 319, Code of Criminal Procedure.

It is settled law that the term ''evidence'' does not mean evidence complete by cross-examination. The Court can take action on un-cross-examined evidence while exercising power u/s 319, Code of Criminal Procedure Indeed, the final report submitted by the police against the Applicants could not be placed on a higher pedestal adversely affecting the powers of the Court u/s 319, Code of Criminal Procedure which it can exercise on the basis of evidence coming before it.

The second argument of learned Counsel for the Applicants is that an order u/s 319, Code of Criminal Procedure could be passed by the Court only during the pendency of the trial. According to learned Counsel, the Court could not pass an order u/s 319, Code of Criminal Procedure against the Applicants while deciding Sessions Trial itself against the charged accused Mukesh alias Kaluwa by the impugned judgment and order. Again, this argument has no valid basis. Learned Counsel for the Applicants could not support this argument by any authority. The logical interpretation of Section 319, Code of Criminal Procedure suggests that order can be passed thereunder when evidence appears against the person concerned during the course of an enquiry or trial of an offence. The course of trial continues till it lasts, meaning thereby that an order can be passed u/s 319, Code of Criminal Procedure during the trial or at the time of the termination of the trial. In other words, action u/s 319, Code of Criminal Procedure cannot be taken subsequent to the conclusion of the trial. Since evidence appeared to be there against the Applicants at the trial of Mukesh alias Kaluwa in the testimony of eye-witnesses, namely, P.W. 1 Veer Bhan and P.W. 2 Dinesh, the court below was perfectly within its powers to pass an order against the Applicants to proceed against them u/s 319, Code of Criminal Procedure by the impugned judgment and order while acquitting the charged accused Mukesh alias Kaluwa.

In the result, I see no merit in this revision. It is accordingly, dismissed. Stay order dated 17.1.1997 stands vacated.

The office shall send a copy of this order to the Sessions Judge concerned so that S.T. No. 903A of 1991, State v. Chandra Bhan and Ors. may proceed against the Applicants in consequence of the impugned judgment and order dated 15.12.1994 passed in S.T. No. 903 of 1991.