Abbas Ali and others v State of Uttar Pradesh and another

Abbas Ali and others v State of Uttar Pradesh and another

Allahabad High Court

18 September 2013

Criminal Revision No. 397 of 2013

The Order of the Court was as follows :

1. Heard Sri K.N. Mishra, learned counsel for the revisionist, Sri Nishant Srivastava, learned counsel for opposite party no.2 and learned AGA for the State.

2. This criminal revision has been filed by Abbas Ali, Samseer, Safiqurrehman and Azizurrehman challenging the order dated 2.8.2013 by which the Additional District and Sessions Judge Court No.9, Gonda has allowed. The application by Haider Ali under Section 319 Cr.P.C. for summoning Samseer, Safiqurrehman and Azizurrehman and Abbas Ali to face trial under sections 147,148,149, 504, 506, 307, 325, 326 IPC and 7 Criminal Law Amendment Act and 4/5 Explosive Substance Act.

3. The facts giving rise to the case is that a first information report was lodged by Haider Ali against Sazzak Ali, Samseer, Safiqurrehman, Azizurrehman, Abbas Ali and Mazibur Rahman after investigation, charge-sheet against two person only Sazzak Ali and Mazibur Rahman was submitted and neither charge-sheet nor final report was submitted against four accused persons Abbas Ali, Samseer, Safiqurrehman and Azizurrehman. After committal of the case charge against Sazzak Ali, Samseer, Safiqurrehman, Azizurrehman, Mazibur Rahman and Abbas Ali was framed. Prosecution examined P.W.1 Haider Ali, P.W.2 Mahrunisha and after that prosecution moved an application under Section 319 Cr.P.C. for summoning the revisionists.

4. Learned Court below after hearing the parties allowed the application under section 319 Cr.P.C. and summoned these revisionist to face trial. Feeling aggrieved this criminal revision has been filed.

5. The only argument which was raised by learned counsel for revisionist is that neither a charge-sheet nor final report has been submitted against the revisionists and the investigation is still pending. In these circumstances, the impugned order is erroneous and liable to be quashed.

6. The learned counsel for the respondent argued that the word “not being an accused” clearly denotes that the persons against whom neither charge sheet, nor final report has been submitted, can also be summoned under this section.

7. Learned counsel for the respondent relied upon the case of Joginder Singh and Another Vs. State of Panjab and Another1979(1) Supreme Court Cases, 3451978 Indlaw SC 105.

8. For proper appreciation of the arguments advanced by learned counsel for the parties, Section 319 Cr. P.C. is reproduced below: – 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 had 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 witnesses reheard;

(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.”

9. A somewhat similar provision was contained in Section 351(1) of the Code of Criminal Procedure, 1898 [for short, 1898 Code] under which it was provided that any person attending a criminal court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as if he had been arrested or summoned. Sub- section (2) of Section 351 provided that in such a situation the evidence shall be re-heard in the presence of the newly added accused. In its 41st Report, the Law Commission noted that the power conferred upon a criminal court under Section 351 of the 1898 Code could be exercised only if such person happen to be attending the court and he could then be detained and proceeded against, but there was no express provision for summoning such a person if he was not present in the court. The Law Commission recommended that a comprehensive provision be enacted so that whole case against all known suspects could be proceeded expeditiously and that cognizance against the newly added accused should be taken in the same manner as against the other accused. The recommendations made by the Law Commission led to incorporation of Section 319 in its present form in Chapter XXIV of Cr.P.C. which contains general provisions as to inquiries and trials.

10. Section 319 Cr.P.C. 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 Cr.P.C. 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.

11. In the case of Suman Vs. State of Rajasthan and Another, AIR 2010 SC 518 2009 Indlaw SC 1536 the Apex Court has held that :

“In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in Pravin Chandra Mody v. State of Andhra Pradesh the term ‘complaint’ would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190(l)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, under Section 190 (l)(b).

It will thus appear clear that under Section 193 read with Section 209 of the Code when a case is committed to the Court of Sessions in respect of an offence the Court of Sessions takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be no question of reading Section 319 (1) subject or subordinate to Section 193.

The argument that Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police under Section 169 Cr.P.C. was rejected by the Court by making the following observations

The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319 (1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression.”

12. In the case of Joginder Singh and Another v. State of Panjab and Another, 1979 (1) Supreme Court Cases, 345 1979 Indlaw SC 375 the Apex Court has held as under :

“In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies 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, 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 taking cognizance against the other person against whom action has not been taken.”

13. In Lok Ram v. Nihal Singh and Anr., (2006) 10 SCC 192 2006 Indlaw SC 140, the Apex Court examined the correctness of the direction given by the High Court for impelading the appellant as an accused in terms of Section 319 Cr.P.C. 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 14.9.2001. Soon thereafter, Nihal Singh filed complaint at Police Station Fatehabad (Haryana) alleging commission of offence under Section 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 charge-sheeted. During trial, the complainant filed an application under Section 319 Cr.P.C. 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 under Section 319 Cr.P.C. because even though he was named in the FIR as an accused, the police did not find any evidence against him and was not charge- sheeted. While rejecting the argument, the Court referred to the judgments in Joginder Singh and Anr. v. State of Punjab and Anr. 1979 Indlaw SC 375 (supra), Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. 1982 Indlaw SC 186 (supra), Michael Machado and Anr. v. Central Bureau of Investigation and Anr., (2000) 3 SCC 262 2000 Indlaw SC 159, and observed that “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.”

14. The Apex Court has in the Case of Suman Vs. State of Rajasthan and Another 2009 Indlaw SC 1536 (Supra) has further held: –

“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 v. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.”

15. From perusal of the order of the lower court decision clear that learned court below has held that evidence on record unrebutted will lead to the conviction of the accused persons. Order of the learned court below is supported by the decision of Apex Court Sarabjit Singh Vs. State of Punjab and Another 2009 (3) JIC 5222009 Indlaw SC 773.

16. From the above discussion. There is no illegality and irregularity in the order of learned court below.

17. The criminal revision is liable to be dismissed and is hereby dismissed.

Revision dismissed

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