High Court | Courts & Cases

Judgment

1. Heard Sri Sunil Kumar and Sri Vipin Gangwar, learned counsels appearing for the revisionist, Sri R.B. Chaudhary, learned Additional Government Advocate appearing for the State and Sri Amit Kumar Verma, learned counsel appearing for Opposite Party No.2.

2. This revision has been filed challenging therein, the judgment and order dated 02.12.2024 passed by the learned Additional Sessions Judge, Court No.2, Bareilly in Sessions Trial No.199 of 2021 whereby, in exercise of power under Section 319 Cr.P.C., the revisionist had been summoned to face trial for the offences punishable under Sections 147, 148, 149, 302 and 120- B I.P.C.

3. The facts of the case, in brief, are that F.I.R. had been lodged by Smt. Shabnam Nihar Khan, wife of the deceased, which has been registered as Case Crime No.0378 of 2019, under Sections 147, 148, 149, 302 and 34 I.P.C. in Police Station Fatehganj West, District Bareilly. In the F.I.R., it has been alleged that the deceased while he was sitting in the Medical Store, three persons namely Harish Katib, Sharafat and Rifaqat along with two other persons came and fired at the deceased which resulted in his 2 death. The police pursuant to the aforesaid F.I.R. investigated the matter and recorded the statements of the witnesses under Section 161 Cr.P.C. and in the said statements, the name of the revisionist had been mentioned as an accused. The Investigating Officer after collecting some other material came to the conclusion that the revisionist is not connected with the crime in question and therefore, while filing charge sheet his name was expunged. Later on, the testimonies of the eye witnesses and other witnesses have been recorded during the trial wherein, all the witnesses have

categorically stated that Mr. Harish Katib was involved in the crime in question.

4. On the basis of the testimonies of the witnesses recorded before the trial court, an application was filed by Opposite Party No.2 before the trial court for summoning the revisionist as an additional accused, in exercise of power under Section 319 Cr.P.C. The trial court, after considering the overall evidence available before it, had come to the conclusion that there is sufficient evidence against the revisionist and therefore, in exercise of its power under Section 319 Cr.P.C., had passed the impugned order dated 02.12.2024 whereby, the revisionist had been summoned to face the trial for the offences punishable under Sections 147, 148, 149, 302 and 120-B IPC.

5. Learned counsel appearing for the revisionist has argued that the application under Section 319 Cr.P.C. was filed by Opposite Party No.2 but subsequently, she submitted application before the trial court that she does not want to press her application therefore, in absence of any application under Section 319 Cr.P.C., the trial court could not have summoned the revisionist to face the trial. It has further been argued on behalf of 3 the revisionist that PW-4 i.e. Abrar, son of Anwar, while giving his testimony before the trial court, had stated that the revisionist was not present on the place of occurrence. Learned counsel appearing for the revisionist, on the strength of the aforesaid arguments, has submitted that there is no evidence available before the trial court which may be sufficient for the trial court to record its satisfaction that if the evidence available before it stands unrebutted, the revisionist can be convicted. It has also been argued that for summoning an additional accused under Section 319 Cr.P.C., the trial court has to record the satisfaction which may be of higher degree to that of the prima facie satisfaction that there is enough evidence available before the trial court which, if not rebutted, would lead to the conviction of the revisionist whereas, it is apparent on the face of the record that there is no such evidence therefore, the order passed by the trial court thereby summoning the revisionist as an additional accused, on its face, is illegal.

6. On the other hand, learned Additional Government Advocate appearing for the State has argued that initially an application was filed by Opposite Party No.2 and later on, she submitted before the trial court that she does not want to press that application but this alone cannot preclude the trial court from exercising its power under Section 319 Cr.P.C., as from bare perusal of the provisions made in Section 319 Cr.P.C., it is patently manifest that discretionary power has been vested in the trial court under Section 319 Cr.P.C. to summon an additional accused to face the trial. Learned Additional Government Advocate appearing for the State has also argued that it is a case where, there is ample evidence available before the trial court regarding the involvement of the revisionist in the crime in question i.e. the revisionist had been named in the F.I.R., the 4 witnesses in their statements recorded under Section 161 Cr.P.C. had categorically stated that the revisionist had committed the crime and the eye witnesses and other relevant witnesses, while deposing before the trial court, had categorically stated that the revisionist had committed crime in question.

7. It has been argued on behalf of the State that the provisions made in Section 319 Cr.P.C. make it crystal clear that the trial court has to look into the evidence produced before the trial court during course of inquiry or during course of trial and if any material has been collected by the Investigating Officer during investigation, that cannot be taken into account while passing the order under Section 319 Cr.P.C.

8. Learned Additional Government Advocate appearing for the State, on the basis of the aforesaid submissions, has vehemently argued that it is a case where the Investigating Officer deliberately had expunged the name of the revisionist and there is sufficient evidence in the form of testimonies of the eye witnesses and other witnesses before the trial court therefore, the trial court, while summoning the revisionist to face the trial under Sections 147, 148, 149, 302 and 120-B IPC, in exercise of its power under Section 319 Cr.P.C., has not committed any error in law and the order impugned in this revision does not suffer from any illegality or infirmity.

9. Learned Additional Government Advocate appearing for the State has relied on the judgment rendered by the Hon’ble Supreme Court in the case of Hardeep Singh and others vs. State of Punjab and others, 2014 (3) SCC, 92 and has submitted that the Hon’ble Supreme Court in the said judgment had considered the 5 law in respect of summoning of an additional accused under Section 319 Cr.P.C. and it had been held that the material collected by the Investigating Officer is not relevant for the purpose of exercising power under Section 319 Cr.P.C. and only the evidence recorded before the trial court during course of inquiry and the trial is relevant. It has further been submitted that in the present case, there is enough evidence before the trial court in the form of testimonies of the eye witnesses and other witnesses wherein, categorical role had been assigned to the revisionist in respect of the crime in question therefore, this revision filed by the revisionist is liable to be dismissed by this Court.

10. I have considered the rival arguments advanced by the learned counsels appearing for the parties and have perused the documents available in the record of this revision.

11. Before proceeding to consider the case in detail, it is apt to have a look over the provisions made in Section 319 Cr.P.C. For ready reference, Section 319 Cr.P.C. is extracted as under:-

319. 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 case may require, for the purpose aforesaid. circumstances summoned, (3) Any person attending the Court, although not under arrest or upon a Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. may be detained by summons, (4) Where the Court proceeds against any person under sub-section (1), then— 6 (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 when the Court took cognizance of the offence upon which the inquiry or trial was commenced.”

12. From perusal of Section 319 Cr.P.C. it is apparent that the legislature had categorically provided that power under Section 319 Cr.P.C. can be exercised by the trial court on the strength of the evidence collected during inquiry and trial before the trial court. The provisions of Section 319 Cr.P.C. have been considered by the Hon’ble Supreme Court in the case of Hardeep Singh and others vs. State of Punjab and others, 2014 (3) SCC, 92. The relevant paragraphs of the judgment rendered by the Hon’ble Supreme Court in the case of Hardeep Singh (supra) are extracted as under:- Question (iii)—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?

58. To answer the questions and to resolve the impediment that 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; 7 such documents are called documentary evidence.”

60. According to Tomlin's Law Dictionary, evidence is “the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writing or records.”

61. Bentham defines “evidence” as “any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact—a persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact.”

62. According to Wigmore on Evidence, evidence represents: “any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked.”

63. The provision and the abovementioned definitions clearly suggest that it is an exhaustive definition. Wherever the words “means and include” are used, it is an indication of the fact that the definition “is a hard-and-fast definition”, and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expression. (Vide Mahalakshmi Oil Mills v. State of A.P. [(1989) 1 SCC 164 : 1989 SCC (Tax) 56 : AIR 1989 SC 335] , Punjab Land Development and Reclamation Corpn. Ltd. v. Labour Court [(1990) 3 SCC 682 : 1991 SCC (L&S) 71] , P. Kasilingam v. P.S.G. College of Technology [1995 Supp (2) SCC 348 : AIR 1995 SC 1395] , Hamdard (Wakf) Laboratories v. Labour Commr. [(2007) 5 SCC 281 : (2007) 2 SCC (L&S) 166] and Ponds India Ltd. v. CTT [(2008) 8 SCC 369] .)

64. In Feroze N. Dotivala v. P.M. Wadhwani [(2003) 1 SCC 433] , dealing with a similar issue, this Court observed as under : (SCC p. 443, para 14) “14. Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the word as defined.”

65. We, therefore proceed to examine the matter further on the premise that the definition of the word “evidence” under the Evidence Act is exhaustive.