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CASE NO.: Appeal (crl.)  689 of 2007

PETITIONER: Y. Saraba Reddy

RESPONDENT: Puthur Rami Reddy and Anr

DATE OF JUDGMENT: 07/05/2007

BENCH: Dr. ARIJIT PASAYAT, P.K. BALASUBRAMANYAN & D.K. JAIN

JUDGMENT: J U D G M E  N T

CRIMINAL APPEAL NO.     689           of 2007 (Arising out of SLP (Crl.) No.766 of 2006)

Dr. ARIJIT PASAYAT, J

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Andhra Pradesh High Court  dismissing the revision petitions filed by the appellant and the  State questioning the correctness of the order passed by the  learned VIth Additional Sessions Judge,  Gooty, (Fast Track  Court), Gooty.  

3.      Background facts as projected by the appellant in a  nutshell are as follows:

4.      On 26.07.1997 at about 6 p.m., while Yeddula Siva  Prasad Reddy (hereinafter referred to as the ’deceased’) was  coming on a motorbike, accused persons armed with deadly  weapons, attacked and killed him. Appellant who was  examined as P.W.1 lodged complaint with the police and   investigation was taken up. On an application made by the  respondents in Crl.R.C.No.1551 of 2004, the Superintendent  of Police, Anantapur District got the matter investigated by the  Deputy Superintendent of Police, Guntakal and on the basis of  his report, names of the present respondents were deleted  from the array of accused. They were not included in the  charge sheet filed on 07.11.1997. Thereafter, the case was  committed to Sessions Court on 10.11.1997 and numbered as  S.C.No.378 of 1998. There was delay in progress of the trial.  P.W.1 was examined on 7.7.2004. Thereafter, a petition in  terms of Section 319 of the Code of Criminal Procedure, 1973  (in short the ’Code’) was filed for arraying the present  respondents as accused. The learned Sessions Judge  dismissed the petition by order, giving a somewhat conclusive  finding that the present respondents have not participated in  the offence.  

5.      The trial Court rejected the application made in terms of  Section 319 of the Code primarily on the ground that the plea  of alibi raised by the respondent was investigated by the  Deputy Superintendent of Police under the instructions of the  Superintendent of Police and on his satisfying about the

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substance in the plea of accused about their non-involvement.  directed the omission of their names. Though their names  were deleted from the array of accused their names were found  in the FIR and statement of witnesses. Assailing the same,  firstly the State filed Crl.R.C.No.1476 of 2004 and thereafter  appellant (PW-1 the de facto complainant) filed Crl.R.C.  No.1551 of 2004 before the High Court. The High Court  found  no infirmity in the trial Court’s order and additionally found  that the charge sheet was filed on 7.11.1997. Neither the  public prosecutor nor the appellant took any steps  immediately. Only on 7.7.2004 an application was filed. The  High Court found that first of all the appellant and the public  prosecutor should not have kept quiet for such a long period  of about 7 years. The fact that they kept silent for such a long  period, according to High Court, shows that the plea of alibi  which was found to be true by the Special Investigating Officer  who enquired into that aspect was true. The High Court also  accepted that there was force in the contention that on  account of political factions the respondents were falsely  implicated and on account of change of government, the public  prosecutor had filed the petition. Since the Deputy  Superintendent of Police had found the plea of alibi to be  correct, the fact that the witnesses during trial stated  otherwise was really of no consequence.  

6.      In support of the appeal, learned counsel for the  appellant submitted that the orders of the trial Court as well  as that of the High Court cannot be maintained. The alleged  occurrence took place on 26.7.1997. The charge sheet was  filed on 7.11.1997 and charges were framed on 25.8.2003. The  delay in framing of charges cannot in any way be attributed to  the complainant. PW-1 was examined on 7.7.2004 and  immediately after his evidence was recorded, the application in  terms of Section 319 of the Code was filed. There was,  therefore, no scope for the High Court to hold that there was  delay in making the application. Before the charges were  framed there was no scope for any application being filed in  terms of Section 319 of the Code.  

7.      In response, learned counsel for the respondents  submitted that after a thorough investigation, the Investigating  Officer had accepted the plea of alibi. The High Court was  justified in rejecting the prayer made by the prosecution and  the complainant.     

8.      We find that the High Court has failed to notice the fact  that there was in fact no delay in making the application.  Though the charge sheet was filed on 7.11.1997, charges were  framed on 25.8.2003. The order sheet shows that the delay  cannot in any way be attributed to the complainant. There is a  basic fallacy in the approach of the High Court.  It called for  the file to be satisfied as to whether the enquiry conducted  was to be preferred to the evidence of PW-1. If the satisfaction  of the Investigating Officer or Supervising Officer is to be  treated as determinative, then the very purpose of Section 319  of the Code would be frustrated. Though it cannot always be  the satisfaction of the Investigating Officer which is to prevail,  yet in the instant case the High Court has not found the  evidence of PW-1 to be unworthy of acceptance. Whatever be  the worth of his evidence for the purposes of Section 319 of  the Code it was required to be analysed. The conclusion that  the IO’s satisfaction should be given primacy is unsustainable.  The High Court was not justified in holding that there was  belated approach.

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9.      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."

10.     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."

11.     In Municipal Corporation of Delhi v. Ram Kishan Rohtagi  and Ors. (1983 (1) SCC 2) 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  un 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  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."

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12.     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  proceedings 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. 13.     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 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 that 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. 14.     The above position was highlighted in Lok Ram v. Nihal  Singh and Anr. (2006 (10) SCC 192).

15.     The conclusion of the High Court after calling for the  records from the Investigating Officer to satisfy itself and  deciding whether version of PW-1 was to be accepted or not is  a very unusual procedure adopted.  

16.     In the result, the High Court’s order is clearly  indefensible and is set aside. The trial Court shall take steps  for proceeding against the respondents in terms of Section 319  of the Code. We make it clear that by allowing this appeal we  are not expressing any opinion on the merits of the case.