Qutubul Abideen and Others vs Prabhu Dayal and Another

Heard Learned Counsel for the applicants and learned AGA for the State.

The applicants by way of filing this application have sought to quash the order of the learned 10th Additional Sessions Judge, Aligarh dated 21.07.1998 allowing criminal revision No. 491/1997, Prabhu Dayal v. Qutubul Abideen and Ors. under Sections 323, 324 Indian Penal Code, P.S. Gangiri, District Aligarh setting aside the order of the 6th Additional Chief Judicial Magistrate, Aligarh dated 23.04.1998 in criminal case No. 1022 of 1995, State v. Rafeeulislam @ Rafikullah whereby he had refused to summon the applicants u/s 319 Code of Criminal Procedure., and remitting the matter to back to the magistrate for making a fresh look into the matter.

Shorn of unnecessary details the facts leading to filing of this application, in brief, are that on an application of opposite party No. 1 Prabhu Dayal u/s 156(3) Code of Criminal Procedure. against the applicants and one Rafeeulislam regarding the incident which is alleged to have taken place on 15.01.1989 at 9 A.M. It was alleged that one Bhopal, Prabhu Dayal (informant) and Gokul have sustained injuries. As usual investigation culminated in filing of charge sheet against only co-accused Rafeeulislam, who was tried. The applicants were summoned to face the trial in exercise of power conferred u/s 319 Code of Criminal Procedure. on the basis of the evidence of Prabhu Dayal (PW-1) and Raj Pal (PW-2) by the trial court vide order dated 31.08.1992. Being aggrieved by the order dated 31.08.1992 a criminal revision which was numbered 597/1992, was preferred by the applicants. The revision was allowed on 29.4.1993. Later on after the examination of the three more prosecution witnesses, an application was again moved u/s 319 Code of Criminal Procedure. for summoning the applicants was moved which was however rejected on 23.4.1997. Order of rejection dated 23.4.1997 was challenged in revision which was numbered 491/97 by the opposite party No. 1 by order dated 21.7.98. Hence it necessitated the applicants to file this application before this Court.

On 30.3.2011 a supplementary affidavit has been filed which is on the record. In paragraph 4 of the said supplementary affidavit it has been stated that applicant No. 4 namely, Bhullu Miyan had died in the year 2008 during pendency of the present application before this Court and resultantly the present application u/s 482 Code of Criminal Procedure. stand abated against the applicant No. 4. In paragraph 2, of the supplementary affidavit it has been detailed that on the basis of a compromise entered between the Respondent No. 1 and the charge sheeted accused Rafeeulislam Khan on 6.9.2000, the trial court vide its judgment and order dated 16.11.2000 acquitted the charge sheeted accused. True copy of the judgment of acquittal has been filed.

Learned Counsel for the applicants has contended that finding of the courts below to the effect that prosecution witnesses mentioned hereinabove in their statement have pointed out the role of the applicants, is wholly incorrect and the courts below have committed an error in law in allowing the application u/s 319 of the Code and summoning the applicants as an additional accused. He further contends that there was no evidence or the material on record for reaching the conclusion that applicants have any role in commission of the offence. Thus the impugned order dated 21.7.1998 is wholly illegal, arbitrary, capricious and against the weight of evidence on record.

It is further contended that charge sheeted co-accused Rafeeulislam Khan has already been acquitted by the trial court vide judgment and order dated 16.11.2000 taking into consideration the factum of the compromise. Since co-accused has been acquitted under the circumstances mentioned above there is no chance of a case resulting into conviction of the applicants and if the case is allowed to continue against them it will only be sheer formality and wastage of valuable time of the court and the proceeding is therefore should be dropped against them.

On the other hand, learned AGA has argued that at the stage of Section 319 of the Code, no finding is required to be recorded about the probability or likely of the eventual conviction of the applicants and it is to be seen only whether prima facie case is made out or not and it cannot be said that no prima facie case is disclosed regarding the complicity of the applicants in the offence in question.

I have heard Learned Counsel for the applicants and learned AGA for the State as well as perused the entire material placed on record.

It is not disputed that power u/s 319 of the Code can be invoked by the trial court in the proper situation.

A perusal of the provisions of Section 319 of the Code would suggests that during the trial it has to appear from the evidence that a persons not being an accused has committed any offence for which such person can be tried together with the accused who are also being tried. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion u/s 319 of the Code would be used by the trial court. Indisputably, it is an extraordinary and discretionary powers which is conferred on the trial court and should be exercised from sparingly and only if compelling reasons exists. The above position was highlighted in Kailash Vs. State of Rajasthan and Another,

In such a situation, the trial court should refrain from adopting such a course of action. In the case in hand, the trial court felt the need to implicate such accused/applicants to find out the real truth, even though there is no solid foundation on the case against whom, without taking into account a legal fiction by virtue of Section 31(4)(i)(b) of the Code is created that cognizance would be presumed to have taken, so for as the newly added accused/applicants are concerned. In the event of this situation, the whole proceeding has to be recommenced from the beginning of the trial.

Prosecution witnesses has to be summoned against for examination and cross examination then in order to reach the stage where it had to reached earlier. Therefore, unless, the trial court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in the conviction in the offence concerned the power u/s 319 Code of Criminal Procedure. of the Code should be exercised. The above position was highlighted in Michael Machado and Anr. v. Central Bureau of Investigation and Anr. 2000 (2) JIC 5 (SC), it was observed as below:

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 of the person, who is not arraigned as an accused in that case, has committed an offence for 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.

The section and ambit of Section 319 of the Code have also been elucidated in several other decisions of the Hon''ble Apex Court. Some of them are quoted herein below:

Y. Saraba Reddy v. Puthur Rami Reddy LXVIII 2007 ACC 573.

Municipal Corporation of Dehli v. Ram Kishan Rohatagi XX 1983 ACC 50 SC.

Mohd. Safi v. Mohd. Rafiq LXVIII 2007 ACC 254 SC.

Kailash Vs. State of Rajasthan and Another,

Rajendra Singh v. State of U.P. 2007 SCC 370.

After having considered the observations made by the Hon''ble Apex Court as mentioned above as well as the provisions of Section 310 of the Code, I feel the impugned order of the trial court in exercise of Section 319 of the Code has to be interfered. Otherwise also when the trial of the charge sheeted accused in case No. 1022/95 has ended in acquittal basically on the ground of compromise between the parties, it would be proper to truncate or snip the proceedings against the applicants at this stage. I, therefore, allow this application and set aside the impugned order dated 21.07.98 passed by the Xth Additional Sessions Judge, Aligarh in criminal revision No. 491/97.