Sunday, 8 May 2016

When court can summon additional accused as per S 319 of CRPC?

It is well accepted in criminal jurisprudence that F.I.R. may not
contain all the details of the occurrence or even the names of all the
accused. It is not expected to be an encyclopedia even of facts already
known. There are varities of crimes and by their very nature, details of
some crimes can be unfolded only by a detailed and expert investigation.
This is more true in crimes involving conspiracy, economic offences or
cases not founded on eye witness accounts. The fact that Police chose
not to send up a suspect to face trial does not affect power of the trial
court under Section 319 of the Cr.P.C. to summon such a person on
account of evidence recorded during trial. This is the factual scenario in
the case at hand also.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 186 OF 2016
[Arising out of S.L.P.(Crl.)No.3438 of 2014]
Hardei …..Appellant
Versus
State of U.P. …..Respondent
Citation;AIR 2016 SC 1615
SHIVA KIRTI SINGH, J.

1. This appeal is directed against order dated 29.01.2014 by the
Hon’ble High Court of Judicature at Allahabad dismissing Criminal
Revision No.2554/2013 preferred by the appellant seeking relief against
order dated 09.07.2013 passed by the Chief Judicial Magistrate, Amroha,
the trial Court, summoning the appellant, in exercise of power under
Section 319, Code of Criminal Procedure, to face trial in Sessions Trial
No.9191 of 2010 (State Vs. Omkar & Ors.) arising out of Case Crime
No.1364 of 2010 under Sections 420/467/468/471/409, IPC pertaining
to Police Station Amadpur, District Amroha, Uttar Pradesh.

2. Before adverting to the rival submissions, the relevant facts may be
noted in brief. The FIR bearing No. 53 of 2010 leading to this case was
lodged on 20th July 2010 by R.D. Sharma, the Project Director of a
scheme under the Mahatma Gandhi National Rural Employment
Guarantee Act (hereinafter referred to as ‘MNREGA’ Scheme). One Rahul
Yadav, a Junior Clerk in the Amroha Block Office and one Omkar Singh
were named as accused with allegation that they had, as per enquiry
report, prima facie embezzled an amount to the tune of Rs.49 Lacs from
official account for the MNREGA Scheme, thereby attracting offence
under Section 409 IPC.
3. In the Special Leave Petition there is reference to another FIR
bearing No. 50 of 2010 dated 16th July, 2010 lodged by one Mr.
Muneshwar Singh, Block Development Officer, Gangeshwari, (J.P.
Nagar). In this FIR the same Rahul Yadav, Junior Clerk alone has been
named as an accused with allegation of cheating and embezzlement in
respect of an amount of Rs.25 lacs of MNREGA. However, in course of
further hearing it was made clear by learned counsel for the appellant
that the present proceeding does not arise from this FIR and the whole
purpose of annexing a copy of this FIR was to draw attention of this
Court to allegations to the affect that the appellant although signed
cheques for withdrawal of money from MNREGA account, she was
innocent and had been cheated by Rahul Yadav.

4. The written notes of arguments on behalf of the appellant also
clarify that the instant proceedings arise only out of FIR No. 53 of 2010
leading to Crime No. 1364 of 2010. The first charge-sheet dated
3.10.2010 was only against Omkar Singh and the other was filed
subsequently against accused Rahul Yadav, after he surrendered.
5. The criminal case progressed as Trial No. 9191 of 2010 and after
some witnesses had been examined, an application under Section 319 of
the Code of Criminal Procedure was filed by the Prosecution on 4.7.2013.
The application discloses that the case was fixed for evidence and
prosecution had already examined five witnesses including PW-1, R.D.
Sharma. On the basis of evidence of prosecution witnesses recorded in
the course of trial, it was urged in the application that involvement of
Muneshwar Singh, the then Block Development Officer and the appellant
Smt. Hardei, the then Block Pramukh of Kshetra Panchayat,
Gangeshwari had emerged and such materials were also available in the
statement of concerned witnesses recorded under Section 161 of
Criminal Procedure Code. The prayer to summon both of them under
Section 319 Cr.P.C. was considered by the learned Chief Judicial
Magistrate, Amroha. He, after noticing in particular the statement made
by R.D. Sharma as P.W.1, came to the conclusion that prima facie
offence was made against both the proposed accused and hence the
application was allowed by order passed on 9th July, 2013. As already
noticed, the High Court affirmed the order of the Magistrate by rejecting

Criminal Revision preferred by the appellant on 29.1.2014 and that order
has given rise to the present appeal.
6. Mr. R. K. Kapoor, learned counsel for the appellant has relied
heavily upon the fact that the appellant was not named as an accused in
the FIR nor any charge-sheet was submitted against her after completion
of investigation. He further submitted that the amount has been
embezzled mainly by accused Rahul Yadav and Omkar Singh and
therefore, the defence of the appellant that she was illiterate lady who
does not know even to sign much less reading or writing should have
been accepted by the Magistrate and the High Court. It was pointed out
that in the FIR lodged by co-accused Muneshwar Singh against Rahul
Yadav, the defence of the appellant was clearly spelt out.
7. Learned counsel for the State of U.P., on the other hand supported
the summoning order of Chief Judicial Magistrate as well as the order
under appeal by the High Court. According to him, there is no denial of
the fact that along with Muneshwar Singh, this appellant was the cosignatory
and only with their signatures money could be withdrawn from
the MNREGA account; therefore, in such a situation the statement
emerging from the deposition of the complainant/informant R.D.
Sharma, P.W.1 that amounts used to be withdrawn jointly by the
appellant and the Muneshwar Singh, the Block Development Officer and
hence they are also answerable for the embezzlement of the concerned
amount could not have been ignored at the present stage in anticipation

of defence of the appellant that she is illiterate and cannot sign her name
and that she was duped or cheated by co-accused Rahul Yadav.
8. Having given our anxious consideration to the rival submissions,
we find no good reason to interfere with the order under appeal.
9. It is well accepted in criminal jurisprudence that F.I.R. may not
contain all the details of the occurrence or even the names of all the
accused. It is not expected to be an encyclopedia even of facts already
known. There are varities of crimes and by their very nature, details of
some crimes can be unfolded only by a detailed and expert investigation.
This is more true in crimes involving conspiracy, economic offences or
cases not founded on eye witness accounts. The fact that Police chose
not to send up a suspect to face trial does not affect power of the trial
court under Section 319 of the Cr.P.C. to summon such a person on
account of evidence recorded during trial. This is the factual scenario in
the case at hand also.
10. It would not be proper for us to deal with detailed merits of the
prosecution case or the defence case at this juncture. Hence, while
dismissing the appeal, we make it clear that the observations made in
the impugned orders or this order shall not have any adverse effect on
the case of either of the parties. It is also made clear that the appellant
shall be at liberty to take all the defence available to her, in accordance

with law, in course of the trial. The appeal stands dismissed with the
aforesaid observations.
 …………………………………….J.
 [DIPAK MISRA]
 ……………………………………..J.
 [SHIVA KIRTI SINGH]
New Delhi.
March 30, 2016.

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