After the charge-sheet was filed in the committal
Court before the concerned Magistrate, the record reveals that
notice was given to the de facto complainant, who is P.W.1,
regarding deletion of names of the revision petitioners named
in the FIR. It appears that the de facto complainant has filed
a Memo in the committal Court stating that he has no
objection for deletion of the names of the said accused.
It is also relevant to note here that the Constitution
Bench of the Apex Court in Hardeep Singh’s case (1 supra)
while considering what is the meaning of the word “evidence”
used in Section 319(1) of Cr.P.C held that the Court can
exercise the power under Section 319(1) of Cr.P.C even on the
basis of the statement made in the examination-in-chief of the
witness concerned. It is further held that the Court need not
wait for the evidence against the accused proposed to be
summoned to be tested by cross-examination. So, it is evident
that even on the basis of the examination-in-chief alone, the
Court can exercise the power under Section 319 of Cr.P.C.
46. Ultimately, at the cost of repetition, it is reiterated
that the Apex Court in the above Constitution Bench
judgment also held as follows:
“A person not named in the FIR or a person though named in
the FIR but has not been charge-sheeted or a person who
has been discharged can be summoned under Section 319
CrPC provided from the evidence it appears that such person
can be tried along with the accused already facing trial.”
47. Therefore, the revision petitioners, though named in
the FIR but not charge-sheeted can also be added as accused
under Section 319 of Cr.P.C as it appears from the evidence
on record that they have also committed the said offences.
ANDHRA PRADESH HIGH COURT
SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Criminal Revision Case No.533 of 2015
Boya Kajje Pedda Ambaraju Vs State of Andhra Pradesh,
Dated 21-5-2020
Challenge in this criminal revision case is to the order
dated 13-3-2015 whereby the II Additional Sessions Judge,
Kurnool at Adoni, has allowed the petition filed under Section
319 of Cr.P.C by the prosecution to add the revision
petitioners also as accused 7 to 16 to face trial of the case
along with accused 1 to 6.
2. Concise statement of facts relevant to dispose of this
criminal revision case may be stated as follows:
(a) On 25-02-2010 at about 12.15 p.m., Kuruva
Seethakkagari Ambanna (hereinafter called as ‘the deceased’)
was murdered. So, his son Kuruva Seethakkagari Mallanna,
P.W.1 lodged a report with the Police stating that about eleven
persons i.e. accused No.1 and the revision petitioners who are
ten in number named in his report attacked the deceased with
deadly weapons near Electrical Sub Station at Gulyam Village
on Gulyam – Halaharvi road while the deceased was returning
from his agricultural lands and committed his murder. P.W.1
has stated in his report that he is following his father from
their lands at that time and he has seen the said persons
named in the FIR attacking his father with deadly weapons
and killing him. The Station House Officer of Alur Police
Station registered the said report as an FIR in Crime
No.18/2010 for the offences punishable under Sections 147,
148, 302, 506 and 120B read with Section 149 of IPC against
eleven accused named in the FIR and investigated the case.
(b) During the course of investigation, the witnesses
L.Ws.1 to 11 have given their statements before the Police
stating that they have witnessed the offence and that the
eleven persons i.e. accused No.1 and the revision petitioners
who are ten in number named in the FIR committed the
murder of the deceased. However, L.Ws.12 to 18, who are
also the alleged eyewitnesses to the offence, appears to have
stated in their statements before the Police that accused 1 to 6
committed the murder of the deceased and that they have
witnessed the same. Among these six accused, only accused
No.1 was found to be named in the FIR. Therefore, the
Investigating Officer has re-examined L.Ws.1 to 11 witnesses.
In their re-examination, it is alleged that L.Ws.1 to 11 stated
that on the advice of the caste elders in the village that they
have given the statements against the revision petitioners as
accused and in their re-examination, it is alleged that they
have eliminated the role of the revision petitioners in
committing the said offence and gave statements in their
re-examination in tune with the statements of L.Ws.12 to 18
stating that accused 1 to 6 have committed the said offence of
murder of the deceased.
(c) Therefore, after obtaining permission from the
Superintendent of Police, Kurnool, the Investigating Officer
has filed charge-sheet only against accused 1 to 6.
The revision petitioners were not charge-sheeted.
(d) After the charge-sheet was filed in the committal
Court before the concerned Magistrate, the record reveals that
notice was given to the de facto complainant, who is P.W.1,
regarding deletion of names of the revision petitioners named
in the FIR. It appears that the de facto complainant has filed
a Memo in the committal Court stating that he has no
objection for deletion of the names of the said accused.
Therefore, the learned Magistrate has committed the case for
trial to the Court of Sessions only against accused 1 to 6 as
the offence under Section 302 of IPC is exclusively triable by
Court of Sessions.
(e) The said case, on committal, was made over to the
II Additional Sessions Judge, Kurnool at Adoni for trial.
The learned II Additional Sessions Judge framed necessary
charges against accused 1 to 6 and commenced trial against
them.
(f) The de facto complainant, who is the son of the
deceased, was examined as P.W.1 during the course of trial
before the trial Court. At the time of giving his evidence in the
trial Court, P.W.1 stated in his evidence that revision
petitioners 1 to 10 herein have also attacked the deceased
with deadly weapons and caused injuries to him and killed
him and that he has personally witnessed the revision
petitioners also committing murder of the deceased. He has
given a detailed account in his evidence as to how the revision
petitioners also attacked the deceased with lethal weapons by
giving specific overt acts against each of these revision
petitioners in attacking the deceased and killing him.
Therefore, he stuck to his guns as per the contents of FIR
lodged by him with the Police.
(g) Before commencing the cross-examination of P.W.1,
as can be seen from the deposition of P.W.1, the learned
counsel for the accused i.e. accused 1 to 6 contended before
the Court that as P.W.1 in his examination-in-chief attributed
overt acts to the revision petitioners that unless they are
brought on to the record that the true facts cannot be elicited.
Therefore, the learned II Additional Sessions Judge held in the
deposition that it is a fit case to initiate proceedings under
Section 319 of Cr.P.C. The learned Additional Public
Prosecutor sought time for taking steps under Section 319 of
Cr.P.C. Therefore, the cross-examination of P.W.1 was
deferred.
(h) Thereafter, the Additional Public Prosecutor Grade-I
(FAC), on behalf of the prosecution, filed a petition under
Section 319 of Cr.P.C stating that accused 1 to 6 are only
facing trial in the case and as P.W.1 deposed during the
course of trial that revision petitioners 1 to 10 have also
committed the murder of the deceased and as he has given
specific overt acts against the revision petitioners regarding
their complicity in commission of the said crime that the
revision petitioners shall also be added as accused 7 to 16 to
face trial along with accused 1 to 6 and thereby prayed to add
the revision petitioners as accused 7 to 16 in the case to face
trial along with accused 1 to 6.
(i) After hearing the learned Additional Public
Prosecutor, the learned II Additional Sessions Judge by the
impugned order allowed the said petition and ordered to issue
summons to the revision petitioners, who are the proposed
accused, to face the trial.
(j) Aggrieved thereby, the revision petitioners, who are
added as accused 7 to 16 in Sessions Case No.670 of 2011 to
face trial along with accused 1 to 6, have filed the criminal
revision case assailing the legality and validity of the said
order.
3. When the revision case came up for hearing before
this Court, heard Sri S.D. Gowd, learned counsel for the
revision petitioners; learned Additional Public Prosecutor for
the 1st respondent/State and Sri J.Janakirami Reddy, learned
counsel for the 2nd respondent/de facto complainant (P.W.1).
4. In the background of the facts narrated supra and in
the light of the submissions made by both the parties to the
revision case, it is to be now ascertained whether the learned
II Additional Sessions Judge is justified in summoning the
revision petitioners also as accused in the said case in
S.C.No.670 of 2011 to face trial along with accused 1 to 6 or
not ?
5. Before adverting to the same, the historical
background in incorporating Section 319 in the Code of
Criminal Procedure needs to be considered for better
understanding of the intention of the Legislature in
incorporating this Section 319 with a drastic change when
compared to its earlier Section 351 in the Old Code which is
corresponding to Section 319 in the present Code.
6. Prior to 1973, before the Criminal Procedure Code is
drastically amended, Section 351 in the Old Code is the
corresponding section to Section 319 of the present Code.
Clause (1) of Section 351 in the Old Code reads thus:
“Detention of offenders attending Court.- (1) 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 though
he had been arrested or summoned.”
7. As per sub-clause (2) of Section 351 in the Old Code,
when the detention takes place in the course of any inquiry
under Chapter XVIII or after a trial has been begun, the
proceedings in respect of such person shall be commenced
afresh, and the witnesses reheard.
8. From a perusal of the above extracted provision, it is
obvious that only against a person who is attending the Court
who also appears to have committed the offence from the
evidence adduced before the Court, of which such Court can
take cognizance may be detained by the Court for the purpose
of enquiry or trial and in respect of that person, the
proceedings shall have to be commenced afresh and the
witnesses re-heard. The expression used, inter alia, in the
Section is “any offence of which such Court can take
cognizance and which, from the evidence, may appear to have
been committed” clearly indicates two aspects, namely, (i) that
it shall appear from the evidence that a person who is
attending the Court has committed an offence; and (ii) that the
offence is such that the Court can take cognizance. Therefore,
it is obvious that there is a lacuna in the Section as it is not
covering two important situations, namely, the situation
where the person who appears to have committed an offence
during the course of the enquiry into or trial was not
attending the Court; and the manner in which the cognizance
will be taken as against that person.
9. Therefore, to make the Section fairly a comprehensive
one, realizing the above two grey areas, the Law Commission
in its 41st report recommended for suitable amendment
of the said provision. It is expedient to extract the relevant
recommendation of the Law Commission. It reads thus:
“24.80. It happens sometimes, though not very often, that
a Magistrate hearing a case against certain accused finds from
the evidence that some person, other than the accused before
him, is also concerned in that very offence or in a connected
offence. It is only proper that a Magistrate should have the
power to call and join him in the proceedings. Section 351
provides for such a situation, but only if that person happens
to be attending the Court. He can then be detained and
proceeded against. There is no express provision in Section
351 for summoning such a person if he is not present in Court.
Such a provision would make Section 351 fairly
comprehensive, and we think it proper to expressly provide for
that situation.
24.81. Section 351 assumes that the Magistrate
proceeding under it has the power of taking cognizance of the
new case. It does not, however, say in what manner
cognizance is taken by the Magistrate. The modes of taking
cognizance are mentioned in Section 190, and are apparently
exhaustive. The question is, whether against the newly added
accused, cognizance will be supposed to have been taken on
the Magistrate’s own information under Section 190(1)(c),
or only in the manner in which cognizance was first taken of
the offence against the accused. The question is important,
because the methods of inquiry and trial in the two cases
differ. About the true position under the existing law, there
has been difference of opinion, and we think it should be made
clear. It seems to us that the main purpose of this
particular provision is, that the whole case against all
known suspects should be proceeded with expeditiously
and convenience requires, that cognizance against the
newly added accused should be taken in the same manner
as against the other accused. We, therefore, propose to
recast Section 351 making it comprehensive and providing that
there will be no difference in the mode of taking cognizance of
a new person is added as an accused during the proceedings.”
10. Thus, it is clear that the Law Commission made two
recommendations, namely, (i) to add an accused who is not
before the Court but concerned with that offence and (ii) the
mode of taking cognizance as against the newly added
accused. These two additions, in the view of the Law
Commission, would make the provision fairly a comprehensive
one. Pursuant to the above recommendation, Section 319 of
the Code has been enacted amending the same in a suitable
manner.
11. The new Section 319 in the 1973 Code reads thus:
“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 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 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. A perusal of the present Section 319 of Cr.P.C makes
it manifest now that any person not being the accused before
the Court who also appears to have committed an offence from
the evidence adduced before the Court during the course of
any enquiry into or trial of an offence for which cognizance
has already been taken, whether that person is attending the
Court or not, can be summoned and if he is added as
an accused pursuant to the said decision of the Court, the
mode of taking cognizance qua the newly added person is the
same as in the case of the already arraigned accused. In other
words, he is deemed to have been an accused when the Court
has originally taken cognizance of the offence earlier. For this
purpose, a legal fiction is created in Clause (b) of sub-section
(4) of Section 319 of Cr.P.C.
13. Therefore, a critical examination of sub-section (1) of
Section 319 of Cr.P.C shows that it should appear from the
evidence before it to the Court during the course of enquiry
into or trial of an offence that any person not being the
accused has committed an offence for which such person
could be tried together with the accused on record.
The Section envisages two requirements, namely, (i) that some
other person, who is not arraigned as an accused in that case
has committed an offence; and (ii) that for such offence, that
person could as well be tried along with the already arraigned
accused.
14. While this is the historical background of Section
319 of the present Code from which legislative intent is
apparent, it is also relevant to consider the observation made
by the Constitution Bench of five Judges of the Apex Court in
Hardeep Singh v. State of Punjab1 while dealing with the
scope and extent of power of the Court under Section 319 of
Cr.P.C., in the light of Articles 20 and 21 of the Constitution of
India, which this Court is of the view germane to resolve the
present controversy. The five-Judge Constitution Bench held
as follows:
“Section 319 Cr.P.C springs out of the doctrine judex damnatur
cum nocens absolvitur (which means, Judge is condemned
when guilty is acquitted) and this doctrine must be used as
a beacon light while explaining the ambit and the spirit
underlying the enactment of Section 319 Cr.P.C.”
15. The Constitution Bench further held as follows:
“The Constitutional mandate under Articles 20 and 21 of the
Constitution of India, 1950 provides a protective umbrella for
the smooth administration of justice making adequate
provisions to ensure a fair and efficacious trial so that the
accused does not get prejudiced after the law has been put into
motion to try him for the offence but at the same time also
gives equal protection to victims and to the society at
large to ensure that the guilty does not get away from the
clutches of law. For the empowerment of the courts to
ensure that the criminal administration of justice works
properly, the law was appropriately codified and modified
by the legislature under the Cr.P.C. indicating as to how
the courts should proceed in order to ultimately find out
the truth so that an innocent does not get punished but at
the same time, the guilty are brought to book under the
law. It is these ideals as enshrined under the Constitution and
our laws that have led to several decisions, whereby innovating
methods and progressive tools have been forged to find out the
real truth and to ensure that the guilty does not go
unpunished.”
1 (2014) 3 SCC 92
16. Therefore, it is now clear that in incorporating
Section 319 as it now stands in the Criminal Procedure Code,
1973 the entire effort is not to allow the real perpetrator of
an offence to go scot-free and to get away unpunished. This is
also part of a fair trial. Therefore, in order to achieve this very
end the Legislature thought of incorporating Section 319 in
the Code.
17. Incidentally, the Constitution Bench also held in the
above decision as follows:
“It is the duty of the Court to do justice by punishing the real
culprit. Where the investigating agency for any reason does
not array one of the real culprits as an accused, the court is
not powerless in calling the said accused to face trial.
The question remains under what circumstances and at what
stage should the court exercise its power as contemplated in
Section 319 Cr.P.C.?”
18. It is also held that Section 319 of Cr.P.C is
an enabling provision and an extraordinary power conferred
on the Court which is to be exercised judiciously with
circumspection.
19. Thus, from the historical background in
incorporating Section 319 of Cr.P.C as discussed in detail
supra coupled with the observations made by the Constitution
Bench of the Apex Court, it is important to note that the whole
idea behind incorporating it is that not to allow a person who
deserves to be tried to go scot-free by being not arraigned in
the trial inspite of possibility of his complicity in perpetrating
the crime emanating from the evidence both oral and
documentary adduced during the course of enquiry or trial of
the case by the prosecution.
20. Bearing in mind the above object, reasons, principles
of law and the scope and extent of power of the Court under
Section 319 of Cr.P.C., the present case is to be considered.
21. Now, while reverting to the facts of the case, it is
significant to note at the outset that as per the version of the
prosecution, P.W.1 is the de facto complainant, who is the son
of the deceased and he is an eyewitness to the offence. It is
this P.W.1 who has lodged the report with the Police after the
murder took place and set the criminal law into motion. It is
the said report that was registered as an FIR by the Police and
investigated the case. This FIR lodged by P.W.1, the
eyewitness to the offence originally disclosed the names of
about eleven persons including the revision petitioners as the
assailants who committed the said murder of the deceased.
The record reveals that L.Ws.2 to 11 are also the eyewitnesses
to the said offence. Though they stated the names of the
revision petitioners as assailants in their statements given to
the Police at the first instance during the course of
investigation, surprisingly the Investigating Officer reexamined
them and in their re-examination, they eliminated
the role of the revision petitioners who are named in the FIR
and they confined to only accused 1 to 6 as stated by L.Ws.12
to 18 as the assailants who committed the said offence of
murder. Therefore, the Investigating Officer has deleted the
names of the other accused after taking permission from the
Superintendent of Police and filed charge-sheet only against
accused 1 to 6. The learned Magistrate of the committal Court
issued notice to the de facto complainant regarding deletion of
the names of the revision petitioners and it is the version of
the prosecution that the de facto complainant filed a memo
stating that he has no objection for deletion of the said names.
Therefore, the learned Magistrate has committed the said case
only against accused 1 to 6 to the Court of Sessions for trial.
22. The de facto complainant now disputed the fact that
he has filed any such memo in the Court stating that he has
no objection for deletion of the said names contending that
when notice issued by the committal Court was served on him
that the Police has taken his signatures on blank papers and
that they might have fabricated it as a memo said to have
been filed by him stating that he has no objection for deletion
of the names. Thus the de facto complainant now disputes
the very validity of the memo said to have been filed by him in
the Court. This Court is not inclined to enter into the said
controversy to resolve the said contentious issue which
requires an elaborate enquiry to record a finding of fact
regarding the genuineness of the said memo said to have been
filed by the de facto complainant. It is suffice to consider
whether despite filing of any such memo, even if true, whether
the trial Court is powerless and precluded from adding the
revision petitioners also as accused to face trial along with
accused 1 to 6 in view of the evidence given by P.W.1,
an eyewitness to the offence, during the course of trial that
these revision petitioners also have committed the said offence
of murder or not. In other words, it is suffice to consider
whether the said Memo, even if true, would operate as a bar
for invoking Section 319 of Cr.P.C by the trial Court or not.
23. Learned counsel for the revision petitioners,
taking complete advantage of the deletion of names of the
revision petitioners by the Investigating Officer in the chargesheet
and taking advantage of the alleged memo available on
record said to have been filed by the de facto complainant
stating that he has no objection for deletion of the names of
the revision petitioners named in the FIR and the order passed
thereon by the committal Court and also based on the fact
that the alleged other eyewitnesses L.Ws.2 to 11 have
eliminated the role of the revision petitioners in commission of
the said offence in their statements recorded under Section
161 of Cr.P.C at the time of their re-examination by the
Investigating Officer vehemently contends that no reliance can
be placed on the testimony of P.W.1 given during the course of
trial to invoke Section 319 of Cr.P.C to summon the revision
petitioners also to face trial in the case. He would submit that
the order passed by the committal Court accepting deletion of
names by the Investigating Officer also operates as a bar to
again take cognizance of the case against the revision
petitioners. These are the principal grounds on which the
revision petitioners contend that there are no valid legal
grounds to add these revision petitioners as accused to face
trial along with accused 1 to 6.
24. Thus, the contention of the revision petitioners,
as per the above submissions, is two-fold. Regarding the first
contention that the memo said to have been filed by the
de facto complainant before the committal Court in response
to the notice given to him by the said Court that he has no
objection for deletion of the names of the revision petitioners
who are named in the FIR at the time of filing charge-sheet by
the Police and the order passed thereon by the committal
Court would operate as a bar to invoke Section 319 of Cr.P.C
by the trial Court, this Court has absolutely no hesitation to
reject the said contention at the threshold as it is absolutely
devoid of any merit.
25. In the case of Y.Saraba Reddy v. Puthur Rami
Reddy2, the three-Judge Bench of the Supreme Court
held at para-8 as follows:
“… … … 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
2 2007 (6) Scale 555
given primacy is unsustainable. The High Court was not
justified in holding that there was belated approach.”
26. In the case of Kishore Prasad v. State of Bihar (AIR
1996 SC 1931), the Supreme Court held that Section 319(1) of
Cr.P.C operates in an ongoing enquiry into or trial of
an offence and further held that that at the stage of Section
209 of Cr.P.C., the Court is neither at the stage of enquiry nor
at the stage of trial. Even at the stage of ensuring compliance
of Sections 207 and 209 Cr.P.C., it cannot be said that the
Court is at the stage of enquiry because there is no judicial
application of mind and all that the Magistrate is required to
do is to make the case ready to be heard by the Court of
Sessions.
27. Therefore, since the Magistrate of the committal
Court, after the charge-sheet is filed in the said Court, has to
only commit the case to the Court of Sessions for trial under
Section 209 of Cr.P.C., as per the ratio laid down in the above
judgment of the Supreme Court, the said proceedings relating
to committal of the case under Section 209 of Cr.P.C cannot
be construed as an enquiry for the purpose of Section 319 of
Cr.P.C. Therefore, even if any order accepting the deletion of
names of the other accused mentioned in the FIR in the
charge-sheet albeit on the alleged memo said to have been
filed by the de facto complainant, it does not preclude the trial
Court in any manner to consider whether the persons who are
named in the evidence given before it during the course of trial
also as assailants to be added as accused along with the other
accused to face the trial or not. The said stage of considering
whether to add any other person as accused comes into play
only during the course of enquiry or the trial of the case.
Since the proceedings of committal is not considered to be an
enquiry for the purpose of Section 319 of Cr.P.C., in view of
the ratio laid down in the above judgment, the said memo or
the order if any passed on the said memo by the committal
Court will not come in the way of exercising the power under
Section 319 of Cr.P.C subsequently during the course of the
trial by the trial Court on the basis of the evidence adduced in
the said case from which it appears that some other person or
persons also committed the offence. Considering the above
judgment of the Apex Court in Kishore Prasad v. State of
Bihar, the Constitution Bench of the Apex Court in Hardeep
Singh’s case (1 supra) also held that while considering the
language employed in Section 319 of Cr.P.C., “in the course of
any enquiry into, or trial of, an offence” and while considering
the stage at which the power can be exercised under Section
319 of Cr.P.C in the light of the above phrase used in the
Section, the Constitution Bench of the Apex Court held that
the power under Section 319 of Cr.P.C can be exercised at any
time after commencement of enquiry into an offence by the
Court and before conclusion of trial, except during stage of
Sections 207 to 209 of Cr.P.C which is not a judicial step in
the true sense.
28. Therefore, in view of the above law, as the Magistrate
of the committal Court at the time of committing the case
under Section 209 of Cr.P.C to the Court of Sessions cannot
make any enquiry as contemplated under Section 319 of the
Code and as the said committal proceedings under Section
209 of Cr.P.C cannot be equated with enquiry as required
under law for the said purpose, any order passed on the
alleged memo said to have been filed by the de facto
complainant regarding the deletion of names cannot operate
as a bar for the Sessions Court being a trial Court to exercise
its power under Section 319 of Cr.P.C when it is made to
appear to the said Court from the evidence which was
adduced before it that the other persons i.e. the revision
petitioners herein also committed the said offence along with
the accused who are already on record to add them as
accused in the said case.
29. Now, it is also relevant to note that as per settled
legal position that even if the accused are discharged earlier
by an order of the competent Court from the case, still it will
not operate as a bar to exercise the power of the Court under
Section 319 of Cr.P.C subsequently or proscribe the Court
from adding them as accused in the criminal case to face trial
along with the other accused. So also, even when the case
against the accused is quashed, subsequently if it comes to
light during the course of trial before the Court as per the
evidence adduced before it that they have also committed the
offence, it will not also preclude the Court or make the Court
powerless or imposes a bar on the Court to invoke 319 of
Cr.P.C to add them as accused. The legal position in this
regard is not res nova and it is authoritatively settled by
a Constitution Bench judgment in Hardeep Singh’s case
(1 supra). It is held at paras 107 to 109 that Section 319 of
Cr.P.C can also be invoked even against a person who is
discharged from the case. It is held that a person discharged
can also be arraigned again as an accused but only after
an enquiry as contemplated under Sections 300(5) and 398 of
Cr.P.C. If during or after such enquiry, there appears to be
an evidence against such person, power under Section 319 of
Cr.P.C can be exercised.
30. In the case of Municipal Corporation of Delhi v. Ram
Kishan Rohtagi (AIR 1983 SC 67), the Apex Court held that
if the prosecution can at any stage produce evidence which
satisfies the Court that those who have not been arraigned as
accused or against whom proceedings have been quashed,
have also committed the offence, the Court can take
cognizance against them under Section 319 of Cr.P.C.
31. This judgment is again quoted with approval by the
Constitution Bench in the above judgment in Hardeep
Singh’s case (1 supra) by the Apex Court at para-106.
32. Therefore, from the above legal position, it is now
clear that even when the accused is discharged from the case
previously and even when the proceedings against the
accused are quashed previously, when subsequently during
the course of trial of the said case if it emanates from the
evidence produced before the Court and appears to the Court
that the said accused who is discharged from the case or even
against whom proceedings were quashed or even against
a person who is not at all shown as accused also committed
the said offence, it is within the power and competence of the
Court to invoke Section 319 of Cr.P.C to add the said persons
also as accused under Section 319 of Cr.P.C to try them along
with the other accused. There is absolutely no legal bar
imposed on the Court to add them as accused. In the above
Constitution Bench judgment, it is also held that the persons
who are not subjected to investigation or person who is
subjected to investigation but not charge-sheeted and
against whom cognizance had not been taken also can be
added as accused under Section 319 of Cr.P.C if it comes to
light during the course of trial as per the evidence adduced
before the Court that the said person also committed the said
offence.
33. Therefore, when such is the law that an accused who
was discharged previously and an accused against whom
proceedings are previously quashed and a person against
whom cognizance was not taken previously can also be added
as an accused under Section 319 of Cr.P.C notwithstanding
the said orders passed earlier, it is really beyond the
comprehension of this Court as to how the mere order passed
by a committal Court accepting the deletion of the names in
the charge-sheet on the basis of the alleged memo filed by the
de facto complainant would come in the way of the trial Court
in adding the revision petitioners also as accused in this case
under Section 319 of Cr.P.C in view of the categorical evidence
given by the eyewitness to the offence who is P.W.1 in the
Court against the revision petitioners during the course of
trial of the said case. Certainly it cannot operate as a bar for
the trial Court to exercise its power under Section 319 of
Cr.P.C. In fact, comparing the case on hand with other nature
of cases like discharge and quash of proceedings, this case
stands on a better footing. Therefore, that part of the
contention of revision petitioners is rejected.
34. Learned counsel for the revision petitioners sought
to assail the impugned order also on the ground that as
P.W.1, who was examined as L.W.1, during the course of
investigation by the Police along with other eyewitnesses
L.Ws.2 to 11 in their re-examination by the Investigating
Officer eliminated the role of the revision petitioners, though
named in the FIR in commission of the said offence and they
did not state anything against these revision petitioners that
in view of the said earlier statements given to the Police that
any evidence given by P.W.1 subsequently during the course
of trial in his evidence against the revision petitioners
implicating them also as accused in this case contrary to his
earlier statement will not be a reliable evidence and
a trustworthy evidence on account of the said prevaricating
statements given at various stages and the said evidence of
P.W.1 cannot be made basis for forming an opinion by the
trial Court that these accused also committed the said offence
along with accused 1 to 6 and as such adding the revision
petitioners as accused under Section 319 of Cr.P.C in the said
case is legally unsustainable. The said contention again has
no merit.
35. The fundamental tenet of Law of Evidence is that the
statements given by the witnesses before the Police under
Section 161 of Cr.P.C either at the first instance or in
re-examination during the course of investigation is not
an evidence and it has no evidentiary value. They can be used
only to contradict the witnesses as per the evidence given by
them in the Court with reference to the earlier statements of
the accused. Except for the said purpose, the statements of
witnesses under Section 161 of Cr.P.C cannot be used for any
other purpose. It is only the evidence given by the witness in
the Court during the course of trial is the substantive piece of
evidence. The Court has to ultimately go by the evidence
given by the witness during the course of trial which is
a substantive piece of evidence to adjudicate whether the
accused are guilty of the offence or not. After completion of
the trial of the criminal case, the trial Court has to eventually
appreciate the substantive evidence given before it in the
course of trial with reference to any other contradictions that
were marked in the earlier statements said to have been given
to the Police in the final adjudication of the case to find out
the veracity of the testimony of the witnesses given in the
course of trial and to find out whether the same is reliable and
trustworthy or not and the Court has to record a finding to
that effect. The Supreme Court in the case of Sri Mahant
Amar Nath v. State of Haryana3 held that the fact that the
details given by the eyewitness at the trial had not figured in
his statement under Section 161 of Cr.P.C., was at that stage
immaterial.
36. So, the contention of the revision petitioners that
since the evidence given by P.W.1 in the Court now is
inconsistent with his statement given under Section 161 of
Cr.P.C before the Police and as such his evidence given in the
Court cannot be considered, merits no consideration.
37. At the stage of considering the case under Section
319 of Cr.P.C after it appears to the Court from the evidence
adduced before it that other persons also committed the said
offence, all that the Court has to see is whether the said
evidence is sufficient enough to call the said accused for trial
leaving the aspect of appreciation of the said evidence to
ascertain its veracity and trustworthiness to be decided in the
final adjudication of the case. As per settled law, the enquiry
in this regard under Section 319 of Cr.P.C is almost equal to
the enquiry to be made by the Court while considering framing
3 AIR 1983 SC 288
of charges against the accused or discharge of the accused to
find out whether there is a prima facie case to presume that
the accused has committed the said offence and whether there
are sufficient grounds to proceed against the accused to try
them for the said case or not. However, a little more degree of
satisfaction of the Court is required which is much stricter.
It must be more than the prima facie case. It is the objective
satisfaction of the Court that is required ultimately to exercise
the power under Section 319 of Cr.P.C against the other
persons to add them as accused.
38. The Constitution Bench in Hardeep Singh’s case
(1 supra) while dealing with what is the degree of satisfaction
required for invoking the power under Section 319 of Cr.P.C
held that the word “appear” used in Section 319 of Cr.P.C
means “clear to the comprehension” or a phrase near to, if not
synonymous with “proved”. It imparts a lesser degree of
probability than proof.
39. The Constitution Bench further held that at the time
of taking cognizance, the Court has to see whether a prima
facie case is made out to proceed against the accused. But
under Section 319 of Cr.P.C, though the test of prima facie
case is the same, the degree of satisfaction that is required is
much stricter. The Supreme Court in Vikas v. State of
Rajasthan (2013 (11) Scale 23), which is quoted with approval
by the Constitution Bench in the above case, held:
“That on the objective satisfaction of the Court a person may be
‘arrested’ or ‘summoned’, as the circumstances of the case may
require, if it appears from the evidence that any such person
not being the accused has committed an offence for which
such person could be tried together with the already arraigned
accused persons.”
40. In Ram Singh v. Ram Niwas [(2009) 14 SCC 25], the
Apex Court while considering the importance of the word
“appear” as appearing in the Section, held:
“… … … the court must satisfy itself about the existence of
an exceptional circumstance enabling it to exercise
an extraordinary jurisdiction. What is, therefore, necessary for
the court is to arrive at a satisfaction that the evidence
adduced on behalf of the prosecution, if unrebutted, may lead
to conviction of the persons sought to be added as the accused
in the case.”
41. Therefore, the evidence of P.W.1 which is given
during the course of trial in the trial Court against the revision
petitioners is to be considered in the light of the law
enunciated by the Apex Court in various judgments cited
supra. A perusal of the evidence of P.W.1 given in the trial
Court clearly shows that he has clearly and unequivocally and
emphatically stated that these revision petitioners have also
attacked the deceased with lethal weapons and caused
injuries to him and killed him. He has given a vivid account
regarding complicity of the revision petitioners in his evidence
by giving individual overt acts of each of these ten revision
petitioners regarding the manner in which they have attacked
the deceased and killed him. The said evidence, if remains
unrebutted, certainly will lead to conviction against the
persons sought to be added as accused in this case. While
considering the said evidence of P.W.1 which was given in the
Court during the course of trial, one should not ignore the fact
that the said evidence given by P.W.1 in the Court during trial
was given on oath and it is a substantive piece of evidence.
If the said evidence ultimately remains unchallenged and if it
is not impeached in any way, it would certainly be a valid
evidence under law to hold that the revision petitioners are
guilty of commission of the said offence. So, more than
a prima facie case and a strong case is made out against the
revision petitioners who are sought to be added as accused in
this case. The said evidence given by P.W.1 as it stands now
clearly proves the complicity of these revision petitioners in
commission of the said offence with their individual overt acts
as spoken to by P.W.1. Therefore, there is valid evidence on
record as required under law for the purpose of invoking
Section 319 of Cr.P.C to record a subjective satisfaction of the
trial Court to add these revision petitioners also as accused
along with accused 1 to 6 to face the trial in the case.
42. The said evidence cannot be now subjected to strict
judicial scrutiny or scanned or appreciated at this stage as
required in the final adjudication of the case while considering
the said evidence under Section 319 of Cr.P.C. It is for the
revision petitioners after they are added as accused to
impeach the said evidence of P.W.1 after subjecting him to
cross-examination. Therefore, the contention of the revision
petitioners that on account of the previous statement given by
P.W.1 which stands contradictory to the evidence given by
P.W.1 now in the Court that it is to be held that the said
evidence is not sufficient or trustworthy to add them as
accused is devoid of merit and is liable to be rejected.
43. At this juncture it is apposite to reiterate the
observations made by the Constitution Bench which are
extracted at the inception of this order that a fair trial requires
the Court to see that the guilty is not escaped and the real
perpetrators of the crime whose role came to light during the
course of trial of the case cannot be left scot-free and the
Court has to take care of such a situation when it comes to its
notice. In fact, that is the object of incorporating Section 319
of Cr.P.C in the Code. Taking any other view in the facts and
circumstances of the case would have the effect of frustrating
the object of Section 319 of Cr.P.C. Therefore, the said
contention is not legally sustainable.
44. It is also relevant to note here that the Constitution
Bench of the Apex Court in Hardeep Singh’s case (1 supra)
while considering what is the meaning of the word “evidence”
used in Section 319(1) of Cr.P.C held that the Court can
exercise the power under Section 319(1) of Cr.P.C even on the
basis of the statement made in the examination-in-chief of the
witness concerned. It is further held that the Court need not
wait for the evidence against the accused proposed to be
summoned to be tested by cross-examination. So, it is evident
that even on the basis of the examination-in-chief alone, the
Court can exercise the power under Section 319 of Cr.P.C.
45. Finally, even though the case is now committed to
the Court of Sessions for trial and the trial commenced, the
cognizance of the case against the revision petitioners who are
now sought to be added as accused is deemed to have been
taken at the time of taking cognizance of the case against
accused 1 to 6 in view of the legal fiction created in Section
319(4) of Cr.P.C. It is held that under Section 319(4)(b) of
Cr.P.C the accused subsequently impleaded is to be treated as
if he has been accused when the Court initially took
cognizance of the offence. So, there is no difficulty in adding
the revision petitioners as accused during the trial of the case
in the Sessions Court. The Apex Court in the case of
Joginder Singh v. State of Punjab AIR 1979 SC 339 observed as follows:
“A plain reading of Section 319(1), which occurs in Chap. 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; ... … …”
46. Ultimately, at the cost of repetition, it is reiterated
that the Apex Court in the above Constitution Bench
judgment also held as follows:
“A person not named in the FIR or a person though named in
the FIR but has not been charge-sheeted or a person who
has been discharged can be summoned under Section 319
CrPC provided from the evidence it appears that such person
can be tried along with the accused already facing trial.”
47. Therefore, the revision petitioners, though named in
the FIR but not charge-sheeted can also be added as accused
under Section 319 of Cr.P.C as it appears from the evidence
on record that they have also committed the said offences.
48. In view of the foregoing discussion and the settled
proposition of law relating to scope and extent of power of the
Court under Section 319 of Cr.P.C as discussed, the revision
case lacks merit. The impugned order is perfectly sustainable
under law and it calls for no interference in this criminal
revision case. Resultantly, the criminal revision case is
dismissed. Pending applications, if any, shall stand closed.
__________________________________________
CHEEKATI MANAVENDRANATH ROY, J.
21st May, 2020.
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