Kalyan Singh vs State of M.P.

Sheel Nagu, J.—This criminal revision u/s. 397 r/w. section 401 of Cr.P.C. assails the interlocutory order dated 08.05.2014 by which the application preferred by complainant Inderjeet Yadav u/s. 319 of Cr.P.C. has been allowed by directing issuance of arrest warrant against Kalyan Singh S/o. Gulab Singh (petitioner herein), who was though named in the FIR, but was not arraigned as accused in the final report by the prosecution in crime No. 66/2013 alleging offences punishable u/s. 147, 148, 302, 307 r/w. section 149 of IPC.

Contentions for the petitioner.

Learned counsel for the petitioner submits that though the name of petitioner was mentioned as accused in the FIR lodged in relation to crime No. 66/2013 and his name further found mentioned in the statements of the prosecution witnesses namely Dayanand, Inderjeet and Ramesh recorded u/s. 161 of Cr.P.C., but it is submitted that in the final report/challan submitted by the prosecution, the name of the petitioner was not arraigned as accused. It is submitted that the trial court ought to have given due credence to the final report submitted by the prosecution which gave clean chit to the petitioner. It is further submitted that considering the plea of alibi, the prosecution has found that the petitioner was not present at the scene of crime and, therefore, in the final report/challan did not arraign the petitioner. It is further submitted by petitioner that the trial court has committed grave error in straight way issuing arrest warrant against the petitioner. It is lastly submitted that summon/bailable warrant ought to have been first issued instead of adopting the extreme mode of issuing arrest warrant.

Contentions for the State counsel and Victim

Learned State counsel and victim on the other hand contends that plea of alibi raised by the petitioner cannot be considered while invoking power u/s. 319 of Cr.P.C. which is an enabling provision. The attention of this Court is invited to para 112 of the constitution bench decision of the Apex Court in the case of Hardeep Singh Vs. State of Punjab and Others etc. etc., which inter alia lays down the criteria for treating the case of a person who has been discharged by the trial court and a person who has never been subjected to investigation or if subjected to investigation has not been charge-sheeted.

It is submitted by the State and so also by the victim that the petitioner was not only named in the FIR, but was also subjected to the process of investigation though charge sheet was not filed against him and further the petitioner has also been implicated in the offence by PW-1 Dayanand & PW-2 Inderjeet while giving their statements before the trial court.

Findings

Considering the submissions advanced by learned counsel for the rival parties and on perusal of the record, the undisputed facts which divulge are as follows:-

(i) The petitioner was named in the FIR dated 06.02.2013 bearing crime No. 66/2013 alleging offence punishable u/ss. 147, 148, 302, 307 r/w. section 149 of IPC.

(ii) The charge sheet in crime No. 66/2013 was filed on 14.05.2013 implicating six accused namely Harkesh, Razak Khan, Guddan @ Mangal, Arif Khan, Vinod Mahore & Ajeet Yadav. The said charge sheet also mentioned that further investigation u/s. 173(8) of Cr.P.C. is undergoing against 13 other accused (not against the petitioner).

(iii) The trial court on 03.10.2013 framed charges u/ss. 302, 307 r/w. section 148 and 149 of IPC against eight accused namely Harkesh, Ajeet Yadav, Rajak Khan, Guddan @ Mangal, Arif Khan, Vinod Mahore, Gajendra Yadav & Ballu Yadav (not against the petitioner).

(iv) On 17.09.2013, the statement of PW-1 Dayanand and PW-2 Inderjeet Yadav were recorded in which both of them alleged that the petitioner wielding a.315 bore rifle was present at the scene of crime.

(v) On 11.01.2014 accepting the plea of alibi raised by the petitioner during the course of further investigation u/s. 173(8) of Cr.P.C. under on the order of Superintendent of Police, Gwalior, the name of the petitioner was dropped from being arraigned.

On 14.05.2014, the impugned order was passed allowing the application u/s. 319 of Cr.P.C. and issuance of arrest against the petitioner after finding prima facie evidence against the petitioner to have committed the offence in question.

In the background of above said factual matrix the case is to be decided on the anvil of law laid down by the Apex Court in the case of Hardeep Singh (supra).

The following questions fall for determination:-

(i) Can the power u/s. 319 of Cr.P.C. be invoked as regards person not named in the FIR or named in the FIR, but not charge sheeted ? and;

(ii) What is the nature of satisfaction required to invoke the power u/s. 319 of Cr.P.C. to arraign the accused ? and;

(iii) Whether the term "evidence" used in section 319 of Cr.P.C. includes the evidence collected during investigation or is limited to evidence collected during trial ? and;

(iv) Whether the acceptance by prosecution of plea of alibi raised by the petitioner and not filing charge sheet against the petitioner can prevent the trial court from exercising its power u/s. 319 of Cr.P.C. against the petitioner?

As regards question No. (i), the decision of the Apex Court in the case of Hardeep Singh (supra) has answered the same in the following manner:-

"117.6 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 u/s 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 of Cr.P.C. has to be complied with before he can be summoned afresh."

As regards question No. (ii), the same has also been answered by the Apex Court in the case of Hardeep Singh (supra).

As regards question No. (iii) further need not detain this Court and the same has also been answered by the decision of the Apex Court in the case of Hardeep Singh (supra) in the following manner:-

"Though u/s 319(4)(b) of 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 u/s 319 of 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.

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 u/s 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 inquiries can be used for corroboration of the evidence recorded in the Court after the trial commences, for the exercise of power u/s 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."

Coming to the last question pertaining to acceptance of prosecution of the plea of alibi raised by the petitioner, it is seen from the record that the prosecution while dropping the investigation u/s. 173(8) of Cr.P.C., based its exonerative finding in favour of the petitioner on the material produced by the petitioner and his wife including statement of witnesses and the video recording and photographs demonstrating that the petitioner at the time of incident was attending a marriage ceremony and thus was not present at the scene of incident.

Pertinently, even if the material collected for or against the petitioner during investigation and further investigation by prosecution, is ignored, the fact remains that two of the prosecution witnesses PW-1 & PW-2 while deposing in the trial on 17.12.2013 made implicative statements against the petitioner inasmuch as the petitioner having been seen sitting in front seat of Swift vehicle wielding .315 bore rifle along with other accused with the allegation that the passengers of Swift vehicle fired towards the vehicle carrying deceased and the injured.

In the background of above said undisputed fact of the statements of PW-1 Dayanand and PW-2 Inderjeet Yadav recorded during trial which are implicative in nature against the petitioner, the said evidence collected during trial is sufficient to enable the trial court to exercise it''s power u/s. 319 of Cr.P.C. while passing the impugned order for arraigning the petitioner.

The only question which now remains to be answered by this Court is that whether after having rightly found evidence to invoke power u/s. 319 of Cr.P.C. the trial court was correct in its approach to issue arrest warrant against the petitioner instead of summon. The said question fades into insignificance as this Court while entertaining this revision petition has granted the benefit of anticipatory bail to the petitioner by interim order dated 24.06.2014, which this Court is inclined to continue till petitioner applies for anticipatory bail which if filed within 15 (fifteen) working days from today, shall be decided by the trial court on it''s own merits without being influence by this order or the grant of anticipatory bail during pendency of this revision.

In view of the above, no case is made out for interference in the impugned order of the trial court dated 08.05.2014 rightly invoking power u/s. 319 of Cr.P.C. against the petitioner.

Accordingly, the impugned order dated 08.05.2014 passed by the trial Court is affirmed.

Consequently, this criminal revision stands dismissed with the above said liberty to the petitioner.

Registry is directed to return the record to the trial Court. No order as to cost.