Full Judgment Text
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CASE NO.:
Appeal (crl.) 405 of 2006
PETITIONER:
Lok Ram
RESPONDENT:
Nihal Singh & Anr
DATE OF JUDGMENT: 10/04/2006
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Crl.) No. 1204 of 2004)
ARIJIT PASAYAT, J.
Leave granted.
Appellant who has been directed to be impleaded as an
accused in terms of Section 319 of the Code of Criminal
Procedure, 1973 (in short the ’Code’) challenges the order
passed by learned Single Judge of the Rajasthan High Court at
Jodhpur.
Background facts are as under:
Respondent No.1-Nihal Singh’s daughters Saroj and
Kanta were married to Ishwar Singh and Bhim Singh, both
sons of Appellant, Lok Ram. Saroj died on 14.9.2001. On
2.9.2001, respondent Nihal Singh filed a complaint at the
Police Station, Fatehabad (Haryana), alleging commission of
offence punishable under Section 406 read with Section 34 of
the Indian Penal Code, 1860 (in short the ’IPC’) and moved an
application for seizure of articles purported to have been given
as dowry. In the complaint it was stated that on 14.9.2001
Saroj, daughter of complainant Nihal Singh died. When his
nephew Mangal Singh went to meet Saroj he learnt that she
had been killed by her husband Ishwar Singh, brother in law-
Bhim Singh and father in law-Lok Ram. Kerosene oil was
poured on her and then she was set on fire. Police registered a
case relating to offences punishable under Section 304(B) and
498 (A) read with Section 34 IPC. On the basis of the aforesaid
report an investigation was started. Stand of the appellant,
Lok Ram was that he was serving at a school at the alleged
time of incident. Statements of various persons were recorded.
During trial, complainant Nihal Singh moved an application
under Section 319 of the Code. By order dated 6.9.2002
learned Sessions Judge rejected the application. On
4.12.2002, trial court convicted Ishwar Singh, Bhim Singh and
their mother for commission of offences punishable under
Section 304 (B) IPC and each was sentenced to undergo
rigorous imprisonment for 7 years. Against the order dated
6.9.2002 a revision petition was filed. The High Court by the
impugned judgment directed the trial court to proceed against
the appellant by summoning him.
In support of the appeal, learned counsel for the
appellant submitted that the true scope and ambit of Section
319 of the Code has not been kept in view. The trial had
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continued to a considerable extent. The power to summon an
accused is an extra-ordinary power conferred on the court and
is to be used sparingly. Only if compelling reasons exist for
taking cognizance against a person against whom action had
not been taken earlier then only Section 319 of the Code has
to be pressed into service. The trial Court had given ample
reasons for refusal to exercise the power. The High Court
should not have interfered in the matter.
In response, learned counsel for the complainant-
respondent No. 1 submitted that the trial court had not kept
the correct parameters in view and, therefore, the High Court
was justified in setting aside the order of the trial court and
directing summons to be issued to appellant.
In Michael Machado and Anr. v. Central Bureau of
Investigation and Anr. (2000 (3) SCC 262) construing the
words "the court may proceed against such person" in Section
319 of the Code, 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 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. The court, while examining an
application under Section 319 of the Code, has also to bear in
mind that there is no compelling duty on the court to proceed
against other persons. In a nutshell, for exercise of discretion
under Section 319 of the Code all relevant factors including
those 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.
The above principles were highlighted in Krishnappa v.
State of Karnataka (2004 (7) SCC 792).
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."
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
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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."
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."
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.
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
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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.
It is to be noted that the trial court rejected the
application only on the ground that the complainant was an
interested witness and therefore, sufficient ground did not
exist to take action against the accused persons. As noted
above though the power is an extra-ordinary and is used only
if compelling reasons exist; the factor which weighed is that
the trial court does not appear to be relevant and, therefore,
the High Court has rightly interfered in the matter. The
impugned judgment does not suffer from any infirmity.
However, we make it clear that we have not expressed any
opinion on the merits of the case. Since the matter is pending
long the trial court is requested to complete the trial as early
as possible.
The appeal is accordingly dismissed.