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CASE NO.: Appeal (crl.)  1305 of 2007

PETITIONER: Guriya @ Tabassum Tauquir and Ors

RESPONDENT: State of Bihar and Anr

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1305           OF 2007 (Arising out of S.L.P.(Crl.) No.6219 of 2005)

DR. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      The appellants call in question  legality of the order  passed by a learned Single Judge of the Patna High Court  dismissing the Criminal Revision filed by them.  Challenge  before the High Court was to the revisional order passed by  learned Additional Sessions Judge, Fast Track Court No.1,  Motihari. By order dated 10.09.2004, learned Additional  Sessions Judge set aside the order of learned Judicial  Magistrate, Motihari in G.R. No.996 of 99/Tr. No.693 of 2004.   

3.      Background facts in a nutshell are as follows:-          FIR was lodged on 29.05.1999 by Manzoor Baitha  alleging that his parents, brother and sisters had a fight with  his family members.  Annu Siddiqui hit on the head of his son  Akbar Hawari with the butt of a pistol and he also snatched  away a wrist watch of his son. Cognizance was taken on  27.9.1999 and charge-sheet was filed on 09.09.1999.  Charges  were framed on 14.3.2000.  Only three persons were arrayed  as accused persons and the present appellants were not  arrayed as accused.  It appears that a protest petition was  filed before charges were framed on 14.03.2000 but the same  was rejected.  Recording of prosecution evidence commenced  on 16.04.2001 and continued till 29.04.2002. The prosecution  evidence was thereafter closed and the statement of accused  persons was recorded in terms of Section 313 of the Code of  Criminal Procedure, 1973 (in short ’Cr.P.C.’) on 19.02.2003.  Thereafter on 07.05.2003, an application in terms of Section  311 Cr.P.C. was filed and was allowed and two more witnesses   i.e. PWs 4 and 5 were examined.  An application under Section  319 Cr.P.C. was filed on 14.01.2004 stating that new evidence  has surfaced which requires the trial of the present appellants.   It is to be noted that PWs 4 and 5 were examined on 6.1.2004   pursuant to the order in the application filed  under Section  311 Cr.P.C.  The  petition filed under Section 319 Cr.P.C. was  rejected by the Trial Court holding that no case was made out  for putting the appellants on trial. Learned Sessions Judge  was moved for revision and the same was allowed. The High  Court dismissed the revision petition filed on the ground that

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there are materials against the appellants.

4.      Learned counsel for the appellants submitted that the  application under Section 319 Cr.P.C. was nothing but an  abuse of process of the court as the narration of facts above  would go to show. Every possible attempt was made to  introduce materials against the appellants which were not on  record. Even after the examination of the accused under  Section 313 Cr.P.C., an application under Section 311 Cr.P.C.  was allowed.  Two witnesses were examined on 6.1.2004. Even  their evidence in no way connects the appellants to the alleged  incident.  PWs 1, 2 and 3, who were examined on 16.04.2001,  8.01.2002 and 29.04.2002 merely stated about the alleged  presence of the appellants. No definite role was ascribed to  them.  Therefore, the application in terms of Section 319  Cr.P.C. was not maintainable and in any event was mala fide.    5.      Learned counsel for the State submitted that the  prosecution has not filed any application under Section 319  Cr.P.C. It was only PW-1, the informant who had filed such an  application. Learned counsel for the complainant \026 respondent  No. 2 submitted that the appellants were named in the FIR.   PWs 1, 2 and 3 spoke about their presence. Therefore, they  should have been arrayed as accused persons.   6.      The parameters for dealing with an application under Section  319 Cr.P.C. have been laid down by this Court in several cases. 7.      In Michael Machado and Anr. v.  Central Bureau Of  Investigation and Anr.  (2000 (3) SCC 262) it was observed as  follows:-         "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 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.

       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 other 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.

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       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 recommended 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 large in number  the court must seriously consider whether the  objects sought to be achieved by such exercise  are worth wasting the whole labour already  undertaken.  Unless the court is hopeful that  there is a reasonable prospect of the case as  against the newly-brought accused ending in  being convicted of the offence concerned we  would say that the court should refrain from  adopting such a course of action"

        8.  Shashikant Singh Vs. Tarkeshwar Singh and Anr. (2002 (5)  SCC 738),  it was, inter-alia observed as follows:-

       "The intention of the provision here is  that where in the course of any enquiry into,  or trial of, an offence, it appears to the court  from the evidence that any person not being  the accused has committed any offence, the  courts may proceed against him for the offence  which he appears to have committed.  At that  stage, the court would consider that such a  person could be tried together with the  accused who is already before the court facing  the trial.  The safeguard provided in respect of  such person is that, the proceedings right from  the beginning have mandatorily to be  commenced afresh and the witnesses reheard.   In short, there has to be a de novo trial against  him. The provision of de novo trial is  mandatory. It vitally affects the rights of a  person so brought before the court.  It would  not be sufficient to only tender the witnesses  for the cross-examination of such a person.   They have to be examined afresh. Fresh  examination-in-chief and not only their  presentation for the purpose of the cross- examination of the newly added accused is the  mandate of Section 319 (4).  The words "could  be tried together with the accused" in Section  319 (1), appear to be only directory.  "Could  be" cannot under these circumstances be held  to be "must be".  The provision cannot be  interpreted to mean that since the trial in  respect of a person who was before the court  has concluded with the result that the newly  added person cannot be tried together with the  accused who was before the court when order  under Section 319(1) was passed, the order  would become ineffective and inoperative,  nullifying the opinion earlier formed by the

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court on the basis of the evidence before it that  the newly added person appears to have  committed the offence resulting in an order for  his being brought before the court."

9.      Again in Krishnappa Vs. State of Karnataka (2004 (7)  SCC 792), it was observed as follows:-         "It has been repeatedly held that the  power to summon an accused is an  extraordinary power 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 the present case, we need not go into  the question whether prima facie the evidence  implicates the appellant or not and whether  the possibility of his conviction is remote, or  his presence and instigation stood established,  for in our view the exercise of discretion by the  Magistrate, in any event of the matter, did not  call for interference by the High Court, having  regard to the facts and circumstances of the  case.

       In Michael Machado v. Central Bureau of  Investigation construing the words "the court  may proceed against such person" in Section  319 CrPC, this Court held that the power is  discretionary and should be exercised only to  achieve criminal justice and that the court  should not turn against another person  whenever it comes across evidence connecting  that other person also with the offence.  This  Court further held that a judicial exercise is  called for, keeping a conspectus of the case,  including the stage at which the trial has  already proceeded and the quantum of  evidence collected till then, and also the  amount of time which the Court had spent for  collecting such evidence.  The court, while  examining an application under Section 319  CrPC, has also to bear in mind that there is no  compelling duty on the court to proceed  against other persons.  In a nutshell, it means  that for exercise of discretion under Section  319 CrPC, all relevant factors, including the  one noticed above, have to be kept in view and  an order is not required to be made  mechanically merely on the ground that some  evidence had come on record implicating the  person sought to be added as an accused.

       Applying the test as aforesaid to the facts  of the present case, in our view, the trial  Magistrate is right in rejecting the application.   The incident was of the year 1993. Seventeen  witnesses had been examined.  The statements  of the accused under Section 313 CrPC had  been recorded.  The role attributed to the  appellant, as per the impugned judgment of  the High Court, was of instigation.  Having  regard to these facts coupled with the

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quashing of proceedings in the year 1995  against the appellant, it could not be held that  the discretion was illegally exercised by the  Trial Magistrate so as to call for interference in  exercise of revisional jurisdiction by the High  Court."

10.     The scope and ambit of Sec. 319 of the Code have been  elucidated in several decisions of this Court.  In Joginder  Singh and another v. State of Punjab and another (AIR 1979  SC 339), it was observed:

"6. A plain reading of Sec. 319 (1) which  occurs in Chapter XXIV dealing with general  provisions as to inquiries and trials, clearly  shows that it applies to all the Courts  including a Sessions Court and as such a  Sessions Court will have the power 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 the other accused;\005\005."

11.     It was further observed in paragraph 9:

"9.  As regards the contention that the phrase  ’any person not being the accused’ occurred in  Sec. 319 excludes from its operation an  accused who has been released by the police  under Sec. 169 of the Code and has been  shown in column No. 2 of the charge sheet, the  contention has merely to be stated to be  rejected.  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 Sec. 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 Municipal Corporation of Delhi v. Ram Kishan Rohtagi  and Ors. (1983 (1) SCC 1) after referring to the decision in  Joginder Singh’s case (supra), it was observed:-

"19. 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.  More than  this we would not like to say anything further  at this stage. We leave the entire matter to the

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discretion of the Court concerned so that it  may act according to law.  We would, however,  make it plain that the mere fact that the  proceedings have been quashed against  respondent Nos. 2 to 5 will not prevent the  court from exercising its discretion if it is fully  satisfied that a case for taking cognizance  against them has been made out on the  additional evidence led before it."

13.     On a careful reading of Sec. 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 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  F.I.R. 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  reported in Sohan Lal and others v. State of Rajasthan, (AIR  1990 SC 2158) the position of an accused who has been  discharged stands on a different footing. 14.     Power under Section 319 of the Code can be exercised by  the Court suo motu or on an application by someone including  accused already before it, if it is satisfied that any person  other than accused has committed an offence and he is to be  tried together with the accused. The power is discretionary  and such discretion must be exercised judicially having regard  to the facts and circumstances of the case. Undisputedly, it is  an extraordinary power which is conferred on the Court and  should be used very sparingly and only if compelling reasons  exist for taking action against a person against whom action  had not been taken earlier. The word "evidence" in Section 319  contemplates evidence of witnesses given in Court. Under Sub- section (4)(1)(b) of the aforesaid provision, it is specifically  made clear that it will be presumed that newly added person  had been an accused person when the Court took cognizance  of the offence upon which the inquiry or trial was commenced.  That would show that by virtue of Sub-section (4)(1)(b) a legal  fiction is created that cognizance would be presumed to have  been taken so far as newly added accused is concerned. (See  Lok Ram v. Nihal Singh and Anr. (AIR 2006 SC 1892)

15.     The factual position noted above goes to show that there  was no new material  after examination of the accused  persons under Section 313 Cr.P.C., which threw any light on  the incident.  The evidence of PWs 4 and 5 is not the basis of  the application under Section 319 Cr.P.C. as they have not  spoken anything about the appellants.   

16.     As noted above, PWs 1,2 and 3 have stated about the  presence of the appellants without any definite role being  ascribed to them in their evidence recorded on 16.04.2001,  08.01.2002 and 29.04.2002. If really the complainant had any  grievance about the appellants being not made accused, that  could have, at the most, be done immediately after the  recording of evidence of PWs 1,2 and 3.  That has apparently  not been done.  Additionally, after the charge-sheet was filed,

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a protest petition was filed by the complainant which was  dismissed.  No explanation whatsoever has been offered as to  why the application in terms of Section 319 Cr.P.C.  was not  filed earlier.  The revisional court did not deal with these  aspects and came to an abrupt conclusion that all the PWs  have stated that the appellants have committed overt acts and  their names also find place in the protest petition.   Undisputedly, no overt act has been attributed to the  appellants by PWs 1, 2 and 3.  Nothing has been stated about  the appellants by PWs 4 and 5.  There was  mention of their  names in the FIR. A protest petition was filed. Same was also  rejected.  These could not have formed the basis of accepting  the prayer in terms of Section 319 Cr.P.C. The High Court’s  order, to say the least, is bereft of any foundation.  It merely  states that there are materials against the petitioners before it.   It also did not deal with various aspects highlighted above.

17.     Above being the position, the order of the High Court and  that of learned Additional Sessions Judge cannot be  maintained and are set aside.  The Trial Court had rightly  rejected the application filed under Section 319 Cr.P.C.

18.     The appeal is, accordingly, allowed.