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Judgment
Raju, J.—The above revision has been filed under Article 227 of the Constitution of India challenging the order of Designated Court No. I
under TAD A Act of 1987, Poonamallee, Madras-56, dated 4.11.1993 in Crl.M.P.S.R. No. 47 of 1993, whereunder the court below has chosen
to reject an application filed by the petitioner herein u/s 319 of the Code of Criminal Procedure seeking for a direction to proceed against one
Sreenivasa Ayya for the alleged offence which he was said to have committed. The basis of claim projected before the Court invoking the
provisions of Section 319 Cr.P.C. is the statement D.868 said to have been given before the police by the petitioner about the visit of the said
Sreenivasa Ayya at 1.00 P.M. on 15.5.1991 to meet one Sivarajan and the discussion they were said to have had on the open terrace of the
premises where they met. The petitioner also claims that the investigating authorities did not properly enquire the occupant of the house to probe
the matter further and according to the petitioner the reason behind the same is that the respondent wanted to hide the real culprits and to throw the
blame on the L.T.T.E.
The Court below has not chosen to issue notice to the respondent since a doubt was entertained regarding the admissibility of such an
application under law at this stage of the proceedings, and therefore, appears to have heard the arguments of learned counsel for the petitioner.
The court below, after hearing the learned counsel for the petitioner and after taking into account the relevant provisions of Cr.P.C. and particularly
S.319 and some of the case law on the subject came to the conclusion that the application filed under S.319(l) of Cr.P.C. at the particular stage in
which the proceedings are pending before the Court below is not maintainable under law and that the petitioner is also not entitled to the relief
prayed for in that application on the materials sought to be relied upon for the purpose. On that view, the application came to be rejected. Hence
the above revision.
Mr. S. Doraisamy, learned counsel appearing for the petitioner contended that the court below misconstrued the scope of S.319, Cr.P.C. in
coming to a conclusion that the application made before the Court below is not maintainable at the pre-trial stage. It is the submission of the
learned counsel for the petitioner that the statement referred to by the petitioner as D.868 given before the police by the petitioner would constitute
''evidence'' which could be said to be available before the Court below in the course of ''any enquiry into'' an offence though not a trial of an
offence. Inviting my attention to the definition of ''enquiry'' under S.2(g) Cr.P.C. and the definition of ''evidence'' under S.3 of the Indian Evidence
Act, 1872, learned counsel further contended that all statements which the Court permits or required to be made before it by witnesses, in relation
to matters of fact under enquiry, would constitute an evidence and consequently the statement of the petitioner referred to as D.868 which was
available before the Court below and which was one of the documents apparently, taken into account in framing the charge, would answer the
description of evidence envisaged for the purposes of S.319. Cr.P.C. On that premise the learned counsel would contend that when such a
statement discloses the commission of a cognisable offence and an application has been specifically made before the Court below, it had a duty in
law to exercise its powers under S.319 Cr.P.C., and the failure to do so constitutes failure to exercise jurisdiction vested in the said authority
resulting in prejudice to the cause of the petitioner.
Section 319 of Cr.P.C. reads as hereunder:
Power to proceed against other persons appearing to be guilty of offence.- (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.
(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.
(4) Where the Court proceeds against any person under sub-section (1), then-
a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person whom the Court took cognizance
of the offences upon which the inquiry or trial was commenced.
Section 2(g) reads as hereunder:
Inquiry"", means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.
Section 3 of the Indian Evidence Act defines the evidence as follows:
Evidence"" means and includes
(1) all statements which the Court permits or required to be made before it by witnesses, in relation to matters of fact under inquiry; such
statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
The Court below relied upon three decisions, one of the Supreme Court and the other two, of different High courts to come to a conclusion that
the application filed by the petitioner is not maintainable at this stage of the proceedings. The decision in Joginder Singh and Another Vs. State of
Punjab and Another, deals with the scope of the powers of the trial court to add any person not already an acused before it as an accused and
direct him to be tried along with the other accused, even in the absence of a specific order of committal in respect of such person since the
committal to the Court of Session is in respect of an offence which the Court of Session can take cognizance of and not of the accused and that the
court of Session which is properly seized of the case could equally add any person not already committed to the said court for being proceeded
against.
The decision in Mahant Amar Nath Vs. State of Haryana and Another, is that of the Supreme Court holding that the Sessions Judge, after
recording evidence, is entitled to implead a person shown to be involved in the commission of an offence tried by him even though such information
about such person being involved in the commission of offence had not figured in the statement u/s 161, Cr.P.C.
In Pukhraj Vs. State of Rajasthan, , a learned Single Judge of the Rajasthan High Court had an occasion to deal with a similar issue. That was a
cash where, after completing the investigation the police submitted a report against four persons who were shown as absconders and during the
trial, the learned Magistrate after framing charge, recorded statements of the prosecution witnesses from about four persons. The Magistrate took
cognizance of the offence against the petitioner before the High Court. Before the trial court he was not earlier shown as an accused. The action of
the trial Magistrate has been challenged on the ground that the court exercising jurisdiction under S.319, Cr.P.C. has power and jurisdiction to
take cognizance of the offence against a person who has not been already arrayed as an accused, if during trial, it appears from the evidence that
the said person has also committed the offence, and he should be tried along with the other accused persons. It was further contended before the
trial Magistrate in that case that the condition for taking cognizance against the person is that there should be some evidence recorded by the court
during the trial, and that the Magistrate cannot use the statements of the persons recorded during the investigation under S.161, Cr.P.C. and the
evidence that should be considered is the evidence recorded by the court during the trial of the case. After noticing the fact that the trial Magistrate
in that case has chosen to place reliance on the statements of the witnesses recorded during the investigation under S.161 Cr.P.C. the learned
single Judge of the Rajasthan High Court, applying the ratio of the Supreme Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and
Others, allowed the application to quash the order passed adding the petitioner before the High Court as a party accused to the proceedings
before the trial Magistrate. The observations of the Supreme Court in the said decision on the scope as well as the nature and powers of the
criminal court under S.319 Cr.P.C. which weighed with the learned single Judge of the Rajasthan High Court in coming to such a conclusion may
be usefully referred to for the purposes of consideration of the issue raised before me. The observation of their. Lordships of the Supreme Court is
as hereunder:
S.319, Cr.P.C. gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the
other accused. In these circumstances, therefore, if the prosecution can, at any stage, produce evidence which satisfied the court that the other
accused or those who have not been arrayed as accused against whom proceedings have been quashed, have also committed the offence the
Court can take cognizance against them and try them along with the other accused. But, this is really an extraordinary power which is conferred on
the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom
action has not been taken.
In an unreported decision of this Court in Cr.M.P. No. 11269 of 1987 dated 10.9.1990 (K. Rajendran and another v. Drugs Inspector, G.T., I
Range, Madras-108), Arunachalam, J. had an occasion to deal with a similar issue. That was a case where the petitioners before the learned Judge
were sought to be added as accused invoking the powers of Section 319 Cr.P.C. even before the commencement of the trial and the learned
Judge after considering the scope of Section 319 Cr.P.C. as also some of the decisions on the subject, expressed the view that the power sought
to be conferred on courts u/s 319 Cr.P.C. is a salutary power intended to be exercised in suitable cases, if the conditions contemplated therein
were satisfied and that the exercise of power under the Section comes into operation only in the course of any enquiry into or trial of an offence
and consequently there is no scope for invoking the provisions of Section 319 Cr.P.C. before even the commencement of the trial. The learned
Judge also placed reliance upon the provisions contained in S.319(4)(a) of Cr.P.C. as an indication of the feet that the powers u/s 319 Cr.P.C.
can be exercised only after commencement of an enquiry or trial of an offence.
In the light of the above position, it is to be seen whether the stage contemplated under S.314 as also to be required basis which entitles a trial
court to invoke powers under S.319 Cr.P.C. has arisen or reached in the case on hand. There is no controversy over the fact that only charges
have been framed against the accused party before the Court, and the trial of the offence is yet to commence. It the stand taken for the petitioner
by the learned counsel that the statement given by the petitioner to the police referred to as D.868 is considered or to be treated as evidence within
the contemplation and meaning and context of section 319 which would provide in law, the basis for taking action under S.319, Cr.P.C., the
petitioner would be right in his contention. The question very much before me would be as to whether the statement concerned given to the police
and referred to as D.868 could be said to answer the description of evidence referred to in S.319. Cr.P.C. In my view, on a careful consideration
and analysis of the scheme underlying S.319, it would be that before a court could initiate action to proceed against a person who is not already an
accused before such court, it should satisfy itself that from the evidence available in the course of any inquiry into or trial of an offence, it appears to
the said court that such third party to the proceedings must also to be tried for the offence together with the accused party already before the court.
The stage of trial has not yet reached in the case before me. The question is, whether the statement given to the police during investigation by the
petitioner could be considered or treated as evidence coming into the notice of the court in the course of an enquiry. As could be seen from the
definition contained in S.2(g), an ""inquiry"" means every inquiry other than a trial conducted under the Code by a Magistrate or Court and not by
any one other than a Magistrate or Court viz., by a police officer for that matter. On the very pleading of the petitioner, the statement D.868 could
not be said to be an evidence of offence recorded by a Magistrate or a court in an enquiry and it is only a statement given to a police officer during
investigation. If that be the position, can the petitioner take advantage of the definition of ''evidence'' under S.3 of the Indian Evidence Act to rely
upon the statement referred to as D.868 given to the police during the stage of investigation as evidence for the purpose of S.319 Cr.P.C. The
definition of ''evidence'' in S.3 of the Indian Evidence Act in my view is more descriptive of the nature of evidence and merely classifies or identifies
the evidence available before the Court as oral evidence and documentary evidence depending upon the nature of the material. While defining as to
what would constitute oral evidence, it is stated in S.3 of the Indian Evidence Act that all statements which the Court permits or required to be
made before it by witnesses in relation to matters of fact under inquiry would be called the oral evidence. By no stretch of imagination, the
statement given to the police during the course of investigation could be equated to or said to constitute a statement which the Court permitted or
required to be made ""before it by witnesses"" so as to give the statement the status of oral evidence within the meaning of S.3 of the Indian
Evidence Act or the word ''evidence'' referred to in the context of Section 319 Cr.P.C.
The reference to the statement of the petitioner sought to be identified as D.868 given to the police at the time of investigation as S.15
statement given under the TADA Act itself, in my view, conveys no meaning and it is totally a misnomer to call it to be so. A perusal of S.15 of the
TADA Act would go to show that the same does not permit the taking or recording of any statement as such. The said provision has the only
consequence of rendering a statement of confession of an offence by a person made or given even before a police officer not lower in rank than a
Superintendent of Police and recorded by him either in writing or any mechanical device as found noticed therein shall be admissible in the trial
notwithstanding any thing contained to the contrary in the Indian Evidence Act, 1872.
On a careful consideration of the materials placed before this court, I am of the view that neither the appropriate stage for invoking the powers
under S.319 Cr.P.C. has arisen nor the required basis which in my view is a condition precedent, namely, the evidence recorded by the Court
during inquiry or trial is available in this case so as to warrant or justify action being taken by the court below under 5319 Cr.P.C. I am also
constrained to take such a view keeping into consideration the rights of a person who would otherwise be obliged to be added as an accused
mechanically even without proper or sufficient basis therefor, and the serious damage and abuse of process that would be involved or would ensue
in accepting the plea of the petitioner.
For all the reasons stated above, I am of the view that the order of the Court below does not suffer from any patent error of law involving
failure to exercise jurisdiction vested with the said court warranting the interference of this court in the proceedings of the Court below at this stage.
The revision therefore fails, and shall stand dismissed.