Chandra Pal Singh vs State of U.P. and Another

S.R. Bhargava, J.—This revision u/s 397 Code of Criminal Procedure, is directed against an order u/s 319 Code of Criminal Procedure passed by II Additional Sessions Judge, Banda in Sessions Trial No. 35 of 1989, under Sections 307/325 IPC State v. Sudas and Ors., summoning revisionists Chandra Pal Singh and one Lekhan Singh.

It is not disputed that revisionist Chandra Pal Singh is President of Zila Parishad, Banda. In first information report lodged by complainant Shiv Raj Singh on 5th June, 1988, allegations were that at about 9.30 A.M. on the same day when the complainant and his men went to cast votes, supporters of candidate of Matganjan on the order of Chandra Pal Singh, Lakhan Singh, Sudas, Shyamlal and Ravendra Singh started quarrelling. They used their weapons, resulting into injuries to complainant and others. Witnesses rescued them. After investigation, charge sheet was filed against Sudas, Shyamlal and Ravindra Singh only. It was mentioned in the charge sheet that investigation was proceeding against Lakkan Singh. But the charge sheet was not filed against revisionist Chandra Pal Singh, Sudas, Shyamlal and Ravindra Singh were committed to Session for facing trial u/s 307 IPC etc. After these three accused were charged with different offences, the learned Additional Sessions Judge recorded evidence of complainant Shiv Ram Singh PW 1 and witness Shiv Raj Singh, PW 2. It emerged in their evidence that the assault took place at the spot on the exhortation of Chandra Pal Singh. Complainant Shiv Ram Singh moved application for summoning Chandra Pal Singh and Lakhan Singh u/s 319 Code of Criminal Procedure. Learned Additional Sessions Judge, referred to evidence recorded before him and also the evidence in the case diary and summoned both Chandra Pal Singh and Lakhan Singh u/s 319 Code of Criminal Procedure.

Being aggrieved, Chandra Pal Singh has filed the present revision.

For appreciating the arguments advanced in this revision, it would be useful to note the provisions of 319(1) Code of Criminal Procedure which runs as under:

Section 319(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." Words "it appears from the evidence" are proceeded by words "in the course of any inquiry into, or trial." They are not proceeded by words "investigation.

It can be safely said for the purpose of summoning a person for joint trial, the court proceeding with the inquiry or the trial should confine itself to the evidence adduced before it. The evidence collected during investigation cannot be basis for summoning a person for joint trial u/s 319(1). Then the word ''appears'' occurring in this Section is significant. It has been used at two places in the Sub-section and has same conotation. Word ''appears'' does not mean ''proves,'' it only significes that there is prima facie case against the person summoned u/s 319(1) Code of Criminal Procedure for joint trial. The third feature of this Sub-section is that the power given in the Sub-section is for justice and the court can exercise this power suo-moto or an application of any of the parties. Under this Sub-section a court has jurisdiction to summon a person even on the application of complainant. The only pre-requisite is, it should appear from the evidence that the person sought to be summoned, not being an accused, has committed any offence for which he should be tried together with the accused.

One of the grounds of revision was that the revisionist was summoned u/s 319 Code of Criminal Procedure on the application of the complainant. But as noted above, this ground can have no substance.

Perusal of the impugned order shows that the learned Additional Sessions Judge, not only relied upon the evidence before him but also the evidence collected during investigation. This was improper and beyond the jurisdiction of the Sessions Judge. Nevertheless, revisionist was named in the first information report. Although the allegation against him in the first information report was unhappily worded yet it connoted exhortation. Then there were statements of two witnesses on oath recorded by the Sessions Judge, in which it was said that the revisionist exhorted his co-accused and on his exhortation quarrel and assault took place. On behalf of the revisionist reliance was placed on cross-examination of the witnesses and particularly omission in their statement u/s 161 Code of Criminal Procedure. It has already been seen that for purposes of summoning u/s 319 Code of Criminal Procedure only prima facie case has to be seen and meticulous examination of evidence cannot be done. For summoning u/s 319 Code of Criminal Procedure the court has not to determine whether the evidence is reliable on meticulous examination. Effect of omission during investigation can be seen only after the entire evidence is recorded and weighed. I hold that on the evidence of two prosecution witnesses, examined by the Sessions Judge, it could be said that there was prima facie case of exhortation against revisionist. Hence the Sessions Judge was justified in summoning the revisionist.

The impugned order of summoning need not be disturbed, but even then it is the duty of this Court to note provisions of Sub-sections (2) and (3) of Section 319 Code of Criminal Procedure which run as under:

(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.

These provisions are independent of Sections 87, 167 and 167A Code of Criminal Procedure. An order, summoning a person u/s 319 Code of Criminal Procedure is usually passed in his absence. Sub-section (2) of Section 319 gives ample powers to the court to issue summons and on his attendance, if there is reason to apprehend that he would run away, to arrest or remand him at any stage. Once a person has been summoned u/s 319(1) Code of Criminal Procedure, he is required only for joint trial with other accused. For assuring his attendance, court can easily resort to provisions of Section 88 Code of Criminal Procedure and may bind down such person with his personal bond with or without sureties. Sub-sections (2) and (3) clearly show that they do not contemplate that the person attending the court on the summon issued u/s 319 Code of Criminal Procedure must be arrested, detained or remanded. The court has discretion of arrest, remand or detention for purpose of joint trial or joint inquiry but that discretion should be exercised only when there is reasonable apprehension that the person summoned shall abscond and shall not be available for joint trial.

In result, this revision is dismissed. Revisionist Chandra Pal Singh is directed to appear before the Sessions Judge concerned voluntarily. On his appearance the Sessions Judge concerned shall not arrest or detain him or remand him unless the Sessions Judge has reasonable apprehension that he will abscond. It is evident that revisionist is President of Zila Parishad and the court can have no apprehension about his absconding. Hence the Sessions Judge concerned shall ensure the attendance of the revisionist on future dates by requiring him to furnish bond with or without sureties.