Mohd. Arif and Another vs State of U.P. and Another

Narayan Shukla, J.—Heard learned Counsel for the Petitioners as well as Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate.

The Petitioners have challenged the order dated 10th of November, 2010 passed by the Additional Sessions Judge, Sitapur in Sessions Trial No. 562 of 2006 on the ground that the order is absolutely without application of mind.

By means of order impugned, the Petitioners have been summoned for trial in exercise of power provided u/s 319 of the Code of Criminal Procedure. Though they were named along with other two accused, but after investigation police submitted charge-sheet only against other two accused namely Jiyaul son of Shaif Ali and Munnu son of Jiyaul, thus, the Petitioners were not charge-sheeted, but now they have been summoned for trial under the order impugned without application of mind.

The learned Counsel for the Petitioners cited a case i.e. Kailash v. State of Rajasthan and Anr. AIR 2008 Supreme Court 1564, in which the Hon''ble Supreme Court held that; for exercise of discretion u/s 319 of the Code of Criminal Procedure all relevant factors have to be kept in view and an order is not required to be made mechanically merely only on the ground that the some evidence had come on record implicating the person sought to be added as an accused." In this case, Hon''ble Supreme Court has relied upon the case of Mohd. Shafi Vs. Mohd. Rafiq and Another, in which the Hon''ble Supreme Court has held that; before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence.

The another case is Y. Saraba Reddy v. Puthur Rami Reddy and Ors. AIR 2007 SCW 6258. The relevant paragraph 13 of which is reproduced hereinunder:

Power u/s 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 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 that evidence of witnesses be given in Court. Under Sub-section (4) (1) (b) of the aforesaid provision, it is specifcally made clear that it will be presumed that newly added person had been an accused person when the Court took congnizance 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.

He also cited a case i.e. Suman Vs. State of Rajasthan and Another, in which the scope of Section 319 of the Code of Criminal Procedure has been discussed by the Hon''ble Supreme Court. The relevant paragraphs 11 & 14 is reproduced hereinunder:

Section 319, Code of Criminal Procedure applies to all the Courts including the Sessions Court. It empowers the Court 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 other accused. If such person is not attending the Court, he can be arrested or summoned. If he is attending the Court, although not under arrest or upon a summons, he can be detained by such Court for the purpose of inquiry into, or trial of, the offence which he appears to have committed, Sub-section (4) lays down that where the Court proceeds against any person under Sub-section (1), the proceedings in respect of such person shall be commenced afresh and witnesses are reheard. A reading of the plain language of Sub-section (1) of Section 319, Code of Criminal Procedure makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into, or trial of an offence, it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of this Sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence, the Court finds that such person has committed any offence for which he could be tried together with the other accused.

In Lok Ram Vs. Nihal Singh and Another, , the Court examined the correctness of the direction given by the High Court for impleading the Appellant as an accused in terms of Section 319, Code of Criminal Procedure. The facts of that case were that two daughters of Nihal Singh (the complainant) were married to two sons of the Appellant-Lok Ram. One of the daughters of Nihal Singh, namely, Saroj died on 14.09.2001. Soon thereafter, Nihal Singh filed complaint at Police Station Fatehabad (Haryana) alleging commission of offence u/s 406 read with Section 34, IPC. During investigation, the Appellant claimed that he was serving in a school at the time of the death of Saroj. His plea was accepted by the Investigating Officer and he was not chargesheeted. During trial, the complainant filed an application u/s 319, Code of Criminal Procedure By an order dated 6.9.2002, the learned Sessions Judge rejected the application. That order was reversed by the High Court and a direction was given to the trial Court to proceed against the Appellant by summoning him. Before this Court, it was argued that the Appellant could not be summoned u/s 319, Code of Criminal Procedure because even though he was named in the FIR as an accused, the police did not find any evidence against him and was not chargesheeted. While rejecting the argument, the Court referred to the judgments in Joginder Singh and Another Vs. State of Punjab and Another, Municipal Corporation of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, Michael Machado and Another Vs. Central Bureau of Investigation and Another, and observed:

On a careful reading of Section 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 the 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 FIR 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 in Sohan Lal and others Vs. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.

Power u/s 319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused has committed an offence 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 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 the evidence of witnesses given in Court. Under Sub-section (4) (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)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.

(Emphasis supplied)

After going through the decisions referred above, I find that there is no restriction upon the learned Magistrate to summon any person for trial either he was not named in the FIR or was named, but not charge-sheeted, if at any stage of proceeding the trial court is satisfied that on the basis of evidence collected/produced in the course of enquiry into or any trial of the offence that such person has committed any offence, for which he can be tried with other accused.

So far as in terms of evidence is concerned, it is defined under the Indian Evidence Act as under:

"Evidence"- "Evidence" means and includes

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; Such statements are called oral evidence;

(2) all documents including electronic record produced for the inspection of the Court.

In the present case on the application moved by the complainant, the learned Magistrate has found it proper and in the interest of justice to summon the Petitioners for trial, which shall be treated his satisfaction regarding necessity the trial of the Petitioners along with other accused.

Therefore, I do not find error in the order impugned dated 10th of November, 2010 passed by the Additional Sessions Judge, Sitapur in Sessions Trial No. 562 of 2006.

The petition is dismissed.