HIGH COURT OF JUDICATURE OF ALLAHABAD
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HIGH COURT OF JUDICATURE OF ALLAHABAD
Civil Misc. Application No. 22382 of 2007
Amar Singh and others....Vs... State of U.P. And another
This is an application u/s 482 Cr.P.C. to quash the order dated 5.12.2006 passed by the Judicial Magistrate IVth , Aligarh in case no. 450/06, State Vs. Harpal and others, u/s 147,148,323,504,506,332,353 I.P.C., P.S. Dadon, District Aligarh.
The facts relevant for disposal of this application is that on 22.9.2000 at about 2.30 P.M. Constable Rajendra Singh of P.S. Dadon lodged a F.I.R. against nine accused persons named therein including the present applicants and 15-20 unknown persons on which case crime no.364/2000, u/s 147,148,324,504,506,332,353 I.P.C. and Section 7 Criminal Law Amendment Act, was registered against the accused persons.
The police after investigation submitted the charge sheet against six accused persons only named in the F.I.R. and no charge sheet was filed against the present applicants though they were named in the F.I.R.. The case proceeded against six accused only named in the charge sheet and the statement of the informant Constable Rajendra Singh was recorded as P.W.1 and in his statement he named the present applicants also as accused. Thereafter an application was moved from the side of the prosecution to summon the applicants u/s 319 Cr.P.C. The learned Magistrate after hearing the prosecution allowed the application and summoned the applicants accused u/s 319 Cr.P.C. Against the above order this application has been filed u/s 482 Cr.P.C. by those accused summoned u/s 319 Cr.P.C.
I have heard learned counsel for the applicants and learned A.G.A. at the admission stage.
Since the point involved in the case is legal one, I am deciding it at the admission stage after hearing both the parties.
The scope of power of the court u/s 319 Cr.P.C. was considered by Hon'ble Apex Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others 1983 (20) ACC 50 (SC), and it was observed in the above case:
"......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."
The above view was followed by Hon'ble Apex Court in Michael Machado V. Central Bureau of Investigation 2000 SCC (Cri) 609 holding that unless the Court is hopeful that there is a reasonable prospect of the case against the newly added accused ending in their conviction for the offence concerned , the Court shall refrain from adding them as accused.
In the case of Palanisamy Gounder and another Vs. State Represented by Inspector of Police (2006) 1 SCC (Cri) 568. The facts were that a charge sheet had been submitted against 5 accused persons, but on the basis of further investigation the names of two accused were dropped and the case proceeded against three accused persons only. However during trial, the prosecution witnesses named all the five accused persons and then an application was moved from the side of the prosecution to summon those two accused also who had been subsequently discharged. The Sessions Judge allowed that application and that order was confirmed by the High court but on appeal the Apex Court considering the law laid down in Municipal Corporation of Delhi Vs Ram Kishan Rohtagi and others (Supra) and Michael Machado V. Central Bureau of Investigation (supra), allowed the appeal and set aside the summoning order passed by the learned sessions Judge against those co accused who had been discharged on the basis of the further investigation, and observed therein as follows:
"In Michael Machado accused V. Central Bureau of Investigation construing the words ' the court may proceed against such person' in Section 319 Cr.P.C., 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 Cr.P.C., 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 Cr.P.C. 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."
In the case of Mohd. Shafi Vs. Mohd. Rafiq and another (2007 (58) ACC 254, the facts were that the appellant Mohd. Shafi and one Karimullah were named as the accused persons in a case u/s 302 I.P.C. The police after investigation submitted a charge sheet against Karimullah @ Arif only and discharged Mohd. Shafi. Thereafter when the statement of P.W.1 Rafiq was recorded, he stated in his examination- in-chief that Mohd. Shafi had also participated in the murder, and on that basis the prosecution moved an application for summoning Mohd. Shafi u/s 319 Cr.P.C. The learned Sessions Judge rejected that application on the ground that only the examination in chief of the witnesses had been recorded and he had not been put to cross examination and so on the basis of examination in chief of P.W.1 Karimullah could not be summoned as accused u/s 319 Cr.P.C.
Then the complainant O.P. no. 2 filed an application u/s 482 Cr.P.C. before this Court which was allowed and the order of the Sessions Judge rejecting the application u/s 319 Cr.P.C. was set aside and the court passed an order for summoning Mohd. Shafi u/s 319 Cr.P.C.
Aggrieved with that order Mohd.Shafi filed an appeal before the Apex Court and the Hon'ble Apex Court holding that the order passed by the High court was erroneous made the following observations:
"From the decisions of this Court, as noticed above, it is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter- alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence."
In view of the above rulings of the Hon'ble Apex Court the legal position regarding summoning of any person as accused u/s 319 Cr.P.C. can be summed up as under:
1. The power u/s 319 Cr.P.C. is not to be exercised mechanically on the ground that some evidence has come on record implicating the person sought to be made an accused.
2. There is no compelling duty on the Court to proceed against those persons against whom no charge sheet has been submitted.
3. The power u/s 319 Cr.P.C. is discretionary and should be exercised to achieve criminal justice and the Court should not turn against another person simply because it has come across some evidence connecting that person also with the offence. The court should exercise judicial discretion in the matter considering all the relevant facts and circumstances.
4. The Court must be satisfied that the other person , who had not been arrayed as accused, had also participated in commission of the offence.
5. The power u/s 319 Cr.P.C. is extraordinary power conferred on the court and this should be used very sparingly if the compelling reasons exist for taking cognizance against other accused persons against whom no charge sheet has been submitted.
6. There must be reasonable prospect of the case against the newly added accused ending in his conviction for the offence concerned and then only that person should be summoned as an accused otherwise the Court should refrain from adding him as an accused.
7. The Court shall exercise a judicial discretion taking into consideration conspectus of the case including the stage at which the trial has proceeded and the quantum of evidence collected till the date and time spent by the Court for collecting such evidence while passing the order of summoning the person u/s 319 Cr.P.C.
8. The satisfaction whether there exists likelihood of conviction of the person to be summoned as accused can be arrived at inter alia upon cross examination of the witness naming him and so the orders for summoning a person as accused u/s 319 Cr.P.C. should be passed after cross examination of the witness.
9. The Court concerned may also take into consideration other evidence before passing an order for summoning a person as an accused u/s 319 Cr.P.C.
The position in the present case is that the learned Magistrate has not taken into consideration the above aspects of the case which he was bound to consider while passing the order for summoning the applicant u/s 319 Cr.P.C. Hence, the order passed by him cannot be sustained and it is liable to be set aside.
The present application u/s 482 Cr.P.C. is, therefore, allowed. The order of the learned Magistrate concerned summoning the accused applicant under section 319 Cr.P.C. is set aside. The application for summoning the accused applicant under section 319 Cr.P.C. is rejected. However, if at any subsequent stage of the proceedings there comes any credible evidence regarding participation of the present accused applicant in commission of the crime, then the learned Magistrate can reconsider the feasibility of summoning him taking into consideration the observations of the Hon'ble Apex Court in the above quoted judgements.
Let a copy of this judgement be sent to the Registrar General of the court for circulation amongst Judicial Officers of the subordinate judiciary for their information and guidance.