….. Md. Mojim @ Md. Mozim v. 1. The State of Jharkhand 2. Md. Junaid
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 545 of 2018 ….. Md. Mojim @ Md. Mozim Versus 1. The State of Jharkhand 2. Md. Junaid …… Petitioner …… Opp. Parties ----- Present HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the petitioner : Mr. B. M. Tripathy, Senior Advocate Mrs. Nutan Kumari Sharma, Advocate For the State : Mr. Rajneesh Vardhan, A. P. P. For the O. P. No. 2 : Mr. Shravan Kumar, Advocate …… ORDER C.A.V. on 31.01.2024 Pronounced on 16/02/2024 This Criminal Revision No. 545 of 2018 has been filed on behalf of the petitioner challenging the order dated 23.12.2017 passed by the learned Additional Sessions Judge-IV, Chatra in Misc. Criminal Application No. 10 of 2017 arising out of S. T. No. 34 of 2016 corresponding to Itkhori P. S. Case No. 91 of 2015 [G. R. No. 1492 of 2015] whereby the learned Additional Sessions Judge-IV, Chatra has issued summon against the petitioner as additional accused to face the trial along with the other accused in trial mentioned above by invoking the power under Section 319 of the CrPC. 2. The FIR has been instituted on the basis of written report of informant Md. Junaid Ansari on 8.10.2015 alleging therein that on 7.10.2015, he along with his brother namely Md. Moin Ansari were returning home after closing his cloth shop and when They reached near Kesho Tar at about 7:20 P.M. then he noticed that Md Ishad Ansari, Md. Mauzim Ansari (i.e. the petitioner), 2 Md. Abdul Mannan @ Chunnu, Md. Moin Ansari, Md. Mustakin, Md. Moiuddin Ansari, Md. Ibrar stopped his Motorcycle. All the above persons had come with Bolero vehicle bearing registration no. JH-02R-8941 and started assaulting his brother (Moin Ansari) with danda (i.e. the stick), however, the informant fled away and saved his life. He further alleged that in a conspiracy his brother had been kidnapped and had proceeded to village –Sherad and he informed about the occurrence to his relative, and brother started searching the brother of the informant. Later on, the informant learnt that his another brother Md. Moin Ansari had already informed about disappearance of his brother at Itkhori Police Station. The informant and his relative found no trace of his brother despite frantic search. Even on 8.10.2015 in the morning hours in course of search, the motor cycle of informant's brother was found in Bhurkunda jungle beside a pitch road and then the informant suspected that aforesaid assailants had concealed the dead-body of his brother after committing his murder. The search was made by the informant and also by the Itkhori Police and at last the dead-body of Md. Mokim Ansari could be found in Pachkori jungle. The informant suspected that the accused person named above had committed the murder of his brother under conspiracy and concealed his dead- body in jungle in order to screen the evidence. 3. Heard Mr. B. M. Tripathy, learned Senior Counsel appearing on behalf of the petitioner and Mr. Rajneesh Vardhan, learned counsel for the State and Mr. Shravan Kumar, learned counsel for the opposite party no. 2. 4. It is submitted by the learned counsel for the petitioner that the order dated 23.12.2017 passed by the learned Court below is illegal and not sustainable in law. It is submitted that the learned Court below failed to appreciate that under Section 319 of the 3 CrPC, summoning of the petitioner in absence of any evidence against him within the meaning of Section 16 of the Evidence Act. It is submitted that learned Court below further failed to consider the essential conditions for exercise of power under Section 319 of the Cr. P. C. as per the decision in Michael Machado & Anr. Versus Central Bureau of Investigation & Anr. reported in (2000) 3 SCC 262 wherein it has been held that the power under Section 319 of the Cr. P. C. vested in the Court should be used sparingly. It is submitted that the learned Court below failed to appreciate the guidelines given by the Apex Court in Krishnappa Versus State of Karnataka reported in (2004) 7 SCC 792 wherein a note of caution has been observed with regard to invocation with the extraordinary and discretionary power under Section 319 of the Cr. P. C. It is submitted that the learned Court below further failed to appreciate the view of the Hon’ble Supreme Court in Kavuluri Vivekananda Reddy Versus State of Andhra Pradesh reported in (2005) 12 SCC 432 wherein it has been said that the statement of witnesses examined were only hearsay in nature and on the basis of such evidence no summons ought to be issued in terms of Section 319 CrPC. It is submitted that despite the legal position that the
Facts
trial court has unfettered power to invoke Section 319 Cr.P.C., the Court below has failed to assign any reason as to the quality of the
Legal Reasoning
evidence adduced against the petitioner in this case for prima facie satisfaction which would end in his conviction. It is submitted that the Learned Court below failed to appreciate that in the instant case even there is no reasonable suspicion against the petitioner, however, the informant has implicated this petitioner without any basis. It is submitted that the power under Section 319 CrPC should be sparingly used for summoning the accused person and in the instant the learned Court below committed error by invoking power under Section 319 CrPC to summon the petitioner. It is 4 submitted that the findings of the Learned Court is not sustainable in the eye of law and as such, Criminal Revision No. 545 of 2018 is fit to be allowed and the order dated 23.12.2017 passed by the learned Additional Sessions Judge-IV, Chatra may be set aside in the interest of justice. 5. On the other hand, learned counsel for the State has opposed the prayer. It is submitted that the order dated 23.12.2017 by the learned Additional Sessions Judge-IV, Chatra is fit and proper and no interference is required from this Court. It is submitted that the petitioner is named in the FIR and the police had committed error by not submitting charge sheet against him. It is submitted that the informant is the eye witnesses of the occurrence and he had named the petitioner in the FIR. It is submitted that P.W.-1, Md. Sahid Raza, P.W.-2, Md. Rafique Alam, P.W.-3, Junaid Ansari, i.e. the informant, P.W.-4, Md. Nayeem Ansari, P.W.-5, Md. Masoon Ansari have fully supported the case against the petitioner for his presence. It is submitted that three persons namely Md. Ishcak Ansari and Md. Ibrar Ansari and Md. Moin Ansari have also been convicted for the offences under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code in S. T. No. 34 of 2016 whereas one accused Md. Mohiuddin Ansari has also been convicted in S. T. No. 122 of 2016 and the accused Abdul Manan @ Chunu and Md. Mustkim have also been convicted in S. T. No. 73 of 2017 by the learned Court below. It is submitted that the Court has ample power to issue summon against the accused person. It is submitted that judgement passed in the case of Brijendra Singh and Ors. Versus State of Rajasthan reported in (2017) 3 Eastern Criminal Cases 226 is not applicable in the facts and circumstances of the present case. It is submitted that judgment reported in the case of Rakesh and Another Versus State of Haryana reported in 2001 (6) SCC 248 5 and in the case of Md. Shafi Versus Md. Rafiq reported in 2007 (14) SCC 544 and in the case of Michael Machado and Another Versus Central Bureau of Investigation and Another reported in 2000 (3) SCC 262 are also not applicable in the facts and circumstances of the present case. It is submitted that several witnesses have supported the allegation against this petitioner, which is evident from the impugned order passed by the learned Court below and as such, the Criminal Revision No. 545 of 2018 is fit to be dismissed. 6. Perused the Lower Court Records and the impugned order passed by the learned Court below and considered the submissions of both the sides. 7. It transpires from the FIR that the petitioner along with seven persons have been named in the FIR. However, the police has not submitted charge sheet against the petitioner. 8. It appears that the petitioner has been named in the FIR by the informant- Md. Junaid Ansari i.e. P.W.-3. It also appears that P.W.-1, Md. Sahid Raza, P.W.-2, Md. Rafique Alam, P.W.-3, Junaid Ansari, i.e. the informant, P.W.-4, Md. Nayeem Ansari, P.W.-5, Md. Masoon Ansari respectively during their evidence have fully supported the case against the petitioner for his presence at the time of occurrence and by stating that the petitioner was also present and had participated in the occurrence. 9. It also appears that around six (06) accused persons as have been convicted in S. T. No. 34 of 2016, S.T. No. 122 of 2016 and S. T. No. 73 of 2017 respectively as mentioned in para-5 of this order. 10. It has been held in the case of Michael Machado and Another Versus Central Bureau of Investigation and Another reported in 2000 (3) SCC 262 at para-11 to 14 as follows:- “ Para-11:- The basic requirements for invoking the above section is that it should appear to the court from the evidence 6 collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which 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. Para-12:- But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons. Para-13:- In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned:(SCC p. 8, para 19) But we would hasten to add that 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 7 taking cognizance against the other person against whom action has not been taken” Para-14:- The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub- section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re- examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the court should refrain from adopting such a course of action.” 11. It has been held in the case of Hardeep Singh vs State of Punjab & Ors reported in 2014 (3) SCC 92 at para-98 and 99 as follows:- “Para-98:- In Sarabjit Singh V. State of Punjab, while explaining the scope of Section 319 Cr.P.C., a two-Judge Bench of this Court observed:(pp. 54-55, para 21-23) “21….For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned……Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted 8 would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied.” (Emphasis added) Para-99:- In Brindaban Das & Ors. v. State of West Bengal, a two-Judge Bench of this Court took a similar view observing that (SCC p. 335, para 25) “25. … the court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity. (emphasis supplied) 12. It has been held in the case of Dharampal Versus State of Haryana and Others reported in 2014 (3) SCC 306 at para-34 and 40 as follows:- “Para-34:- The view expressed in Kishun Singh case [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] , in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report, which power the Sessions Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the 9 Magistrate had powers to disagree with the police report filed under Section 173(2) of the Code, he was helpless in taking recourse to such a course of action while the Sessions Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused. Para-40:- In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh case [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.” 13. It has also been held in the case of Sartaj Singh Versus the State of Haryana and Another reported in 2021 (5) SCC 337 at para-13.1.2, 13.1.3, 13.1.4, 13.1.5, 13.1.6 and 13.4 as follows:- “ Para-13.1.2:- In the said case, the following five questions fell for consideration before this Court. (Hardeep Singh Case, SCC p. 112, para 6) “6. … 6.1. (i) What is the stage at which power under Section 319 CrPC can be exercised? 6.2. (ii) Whether the word “evidence” used in Section 319(1) CrPC could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination in-chief of the witness concerned? 6.3. (iii) Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense and 10 includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial? 6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? 6.5. (v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?” Para- 13.1.3:- While considering the aforesaid questions, this Court in Hardeep Singh observed and held as under: (SCC pp. 114-17, 123 & 125-26, paras 12-14, 17-19, 22, 47 & 53-56) …………………………………………………………………… …………………………………………………………………… 17. Section 319 Cr. P. C. allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence. Para-13.1.4 :- While answering Question (iii), namely, whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial, this Court, in the aforesaid decision has observed and held as under : (Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC pp. 126-27 & 131-32, paras 58-59, 78 & 82-85) “58. To answer the questions and to resolve the impediment that 11 is being faced by the trial courts in exercising of powers under Section 319 CrPC, the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that come up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be ‘where … it appears from the evidence’ before the court. 59. Before we answer this issue, let us examine the meaning of the word “evidence”. According to Section 3 of the Evidence Act, “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 records produced for the inspection of the court; such documents are called documentary evidence.’ * * * 78. It is, therefore, clear that the word “evidence” in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation. * * * 82. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material along with the charge-sheet has been brought before 12 the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge-sheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges. 83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word “evidence” as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court. 84. The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led 13 during trial. 85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The “evidence” is thus, limited to the evidence recorded during trial.” (emphasis in original) Para-13.1.5:- While answering Question (ii), namely, whether the word “evidence” used in Section 319(1) CrPC means as arising in examination-in-chief or also together with cross-examination, in the aforesaid decision, this Court has observed and held as under : (Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC pp. 132-34, paras 86-92) “86. The second question referred to herein is in relation to the word “evidence” as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination-in-chief. In Rakesh [Rakesh v. State of Haryana, (2001) 6 SCC 248 : 2001 SCC (Cri) 1090] , it was held that : (SCC p. 252, para 10) ‘10. … It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to 14 decide whether powers under Section 319 should be exercised or not.’ 87. In Ranjit Singh [Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554] , this Court held that : (SCC p. 156, para 20) ‘20. … it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.’ 88. In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] , it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross-examination is over and that there would be no illegality in doing so. A similar view has been taken by a two- Judge Bench in Harbhajan Singh v. State of Punjab [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] . This Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2009) 16 SCC 785 : (2010) 2 SCC (Cri) 355] seems to have misread the judgment in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] , as it construed that the said judgment laid down that for the exercise of power under Section 319 CrPC, the court has to necessarily wait till the witness is cross-examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC. 89. We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination- in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence. 15 90. As held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889] and Harbhajan Singh [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] , all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words “such person could be tried” instead of should be tried. Hence, what is required is not to have a mini- trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence. 91. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under 16 Section 319 CrPC, the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross- examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(es) is obliterating the role of persons already facing trial. More so, Section 299 CrPC enables the court to record evidence in the absence of the accused in the circumstances mentioned therein.
Decision
92. Thus, in view of the above, we hold that power under Section 319 CrPC can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.” Para-13.1.6:- While answering Question (iv), namely, what is the degree of satisfaction required for invoking the power under Section 319 CrPC, this Court after considering various earlier decisions on this point, has observed and held as under : (Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , SCC p. 138, paras 105-06) “105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, we hold that though only a prima facie case is to be 17 established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words ‘for which such person could be tried together with the accused’. The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.” Para-13.4:- In Rajesh v. State of Haryana [Rajesh v. State of Haryana, (2019) 6 SCC 368 : (2019) 2 SCC (Cri) 801] , after considering the observations made by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in the FIR but not implicated in charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.” 14. It has been held in the case of Sandeep Kumar Versus The State of Haryana & Another reported in 2023 Live Law (SC) 573 at para-4 to 5 as follows:- “ Para-4:-................................................................................ 18 ............................................................................................... The reasoning given by the High Court, cannot be accepted at the stage of consideration of application under Section 319 Cr.PC. The merits of the evidence has to be appreciated only during the trial, by cross examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319, though this is precisely what the High Court has done in the present case. Moreover, the High Court did not appreciate the important fact that the charges being faced by the accused were under Sections 458, 460, 323, 285, 302, 148 and 149 of IPC. Thus, one of the charges being Section 149, which is of being a member of an unlawful assembly, for attracting the offence under Section 149 IPC, one simply has to be a part of an unlawful assembly. Any specific individual role or act is not material. [See: 2021 SCC OnLine SC 632-Manjeet Singh v. State of Haryana & Ors., Para 38]. ........................................................ ....................................................... The entire purpose of criminal trial is to go to the truth of the matter. Once there is satisfaction of the Court that there is evidence before it that an accused has committed an offence, the court can proceed against such a person. At the stage of summoning an accused, there has to be a prima facie satisfaction of the Court. The evidence which was there before the Court was of an eye witness who has clearly stated before the Court that a crime has been committed, inter alia, by the revisionist. The Court need not cross examine this witness. It can stop the trial at that stage itself if such application had been moved under Section 319. The detail examination of the witness and other witnesses is a subject matter of the trial which has to begin afresh. The scope and ambit of Section 319 CrPC has been discussed and dealt with in detail in the Constitution Bench judgment of Hardeep Singh v. State of Punjab and Others reported in 19 (2014) 3 SCC 92 where it said: “12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr. PC. 13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.” Para-5:- In Hardeep Singh (supra), this court further said that the Court only has to see at the state of Section 319, whether a prima facie case is made out although the degree of satisfaction has to be much higher. “95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be “arrested” or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. In Para 106 it stated as under: Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that 20 the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” it is clear from the words “for which such person could be tried together with the accused”. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.” In our considered opinion, the prosecution had fully made out its case for summoning the three as accused under Section 319, Cr.PC, so that they may also face trial.” 15. It has been held in the case of Manjeet Singh Versus State of Haryana and Ors. reported in 2021 (18) SCC 321 at para 20 and 25 which read as follows:- “Para-20:- Now thereafter when in the examination-in-chief the appellant herein — victim — injured eyewitness has specifically named the private respondents herein with specific role attributed to them, the learned trial court as well as the High Court ought to have summoned the private respondents herein to face the trial. At this stage it is required to be noted that so far as the appellant herein is concerned he is an injured eyewitness. As observed by this Court in State of M.P. v. Mansingh [State of M.P. v. Mansingh, (2003) 10 SCC 414 : (2007) 2 SCC (Cri) 390] (para 9); Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] ; State of U.P. v. Naresh [State of U.P. v. Naresh, (2011) 4 SCC 324 : (2011) 2 SCC (Cri) 216] , the evidence of an injured eyewitness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. As observed hereinabove while exercising the powers under Section 319CrPC the court has not to wait till the cross-examination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial under Section 319CrPC. Para-25:- Similarly, the submission on behalf of the private 21 respondents herein that after the impugned judgment and order passed by the High Court there is much progress in the trial and therefore at this stage power under Section 319CrPC may not be exercised is concerned, the aforesaid has no substance and cannot be accepted. As per the settled proposition of law and as observed by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , the powers under Section 319CrPC can be exercised at any stage before the final conclusion of the trial. Even otherwise it is required to be noted that at the time when the application under Section 319CrPC was given only one witness was examined and examination-in-chief of PW 1 was recorded and while the cross-examination of PW 1 was going on, application under Section 319CrPC was given which came to be rejected by the learned trial court. The order passed by the learned trial court is held to be unsustainable. If the learned trial court would have summoned the private respondents herein at that stage such a situation would not have arisen. Be that as it may, as observed herein powers under Section 319CrPC can be exercised at any stage from commencing of the trial and recording of evidence/deposition and before the conclusion of the trial at any stage.” 16. Therefore, in view of the law laid down by the Hon’ble Supreme Court, it is evident that the entire purpose of criminal trial is to go to the truth of the matter. Once there is satisfaction of the Court that there is evidence before it there an accused had committed an offence, the Court can proceed against such a person. 17. It is thus, evident that order passed by the learned Court below is well reasoned and speaking one and no illegality has been committed by the learned Court below while passing the order dated 23.12.2017 passed by the learned Additional Sessions Judge-IV, Chatra in Misc. Criminal Application No. 10 of 2017 by which summon has been issued against the above petitioner under Section 319 of the Cr. P. C. 22 18. In view of the law laid down by the Hon’ble Supreme Court in the judgments reported in the case of Hardeep Singh vs State of Punjab & Ors reported in 2014 (3) SCC 92, in the case of Dharampal Versus State of Haryana and Others reported in 2014 (3) SCC 306, in the case of Md. Shafi Versus Md. Rafiq reported in 2007 (14) SCC 544, in the case of Ranjit Singh v. State of Punjab reported in (1998) 7 SCC 149, in the case of Rajesh v. State of Haryana reported in (2019) 6 SCC 368, in the case of Sartaj Singh Versus the State of Haryana and Another reported in 2021 (5) SCC 337, in the case of Sandeep Kumar Versus The State of Haryana & Another reported in 2023 Live Law (SC) 573 and in the case of Manjeet Singh Versus State of Haryana and Ors. reported in 2021 (18) SCC 321 and on the facts and in the circumstances of this case, this Criminal Revision No. 545 of 2018 filed on behalf of the petitioner is devoid of merit. 19. Accordingly, the Criminal Revision No. 545 of 2018 is hereby dismissed. Kamlesh/ (Sanjay Prasad, J.)