The Allahabad High Court in Abbas Ali vs State of UP dismissed a criminal revision challenging a trial court order that summoned additional accused persons under Section 319 of the Code of Criminal Procedure, 1973. Deciding Criminal Revision No. 397 of 2013 on September 18, 2013, the High Court held that Section 319 CrPC summoning empowers the trial court to add persons named in the FIR who were not charge-sheeted by the police, provided that substantive evidence adduced during trial demonstrates their prima facie involvement in the offence.
Court Roster and Case Information
HIGH COURT OF JUDICATURE AT ALLAHABAD
Date of Decision: 18 September 2013
Criminal Revision No. 397 of 2013
Abbas Ali and others Vs. State of Uttar Pradesh and another
Judicial Proceedings and Case Background
1. Heard Sri K.N. Mishra, learned counsel for the revisionist, Sri Nishant Srivastava, learned counsel for opposite party no. 2 and learned Additional Government Advocate (AGA) for the State.
2. This criminal revision Allahabad High Court petition has been filed by Abbas Ali, Samseer, Safiqurrehman and Shaukat Ali against the order dated 17.1.2013 passed by the Additional Sessions Judge, Court No. 3, Sultanpur in Sessions Trial No. 138 of 2010 (State v. Inam and others), arising out of Crime No. 2517 of 2009 under Sections 302/149, 323/149, 504 and 506 of the Indian Penal Code (IPC), Police Station Kotwali Dehat, District Sultanpur, whereby the learned court below allowed the application under Section 319 Cr.P.C. moved by opposite party no. 2 and summoned the revisionists to face trial for offences under Sections 302/149, 323/149, 504 and 506 IPC.
3. The facts giving rise to the case are that a first information report (FIR) was lodged by Ram Milan (opposite party no. 2) on 19.9.2009 at 19:30 hours in respect of an incident that occurred on 19.9.2009 at about 5:30 PM alleging that all the accused persons named in the FIR, armed with lathis and danda, assaulted the informant and his family members. In the incident, Ram Lakhan sustained serious injuries and died. The police investigated the matter and submitted a charge sheet only against Inam, Aslam, and Julfikar, while dropping the names of the revisionists. During trial, after the examination of prosecution witnesses PW-1 Ram Milan and PW-2 Smt. Lalti, an application under Section 319 Cr.P.C. was moved by opposite party no. 2 for summoning additional accused trial.
4. The learned court below after hearing the parties allowed the application under Section 319 Cr.P.C. and summoned the revisionists to face trial along with the other accused persons.
Submissions of the Revisionists and Respondents
5. The primary argument raised by learned counsel for the revisionists was that the revisionists were named in the FIR, but during investigation the police found them innocent and did not submit a charge sheet against them. It was contended that once the police dropped the revisionists from the charge sheet, the trial court could not summon them under Section 319 Cr.P.C. on the basis of identical witness statements without compelling extraordinary grounds.
6. The learned counsel for the respondents argued that the phrase 'any person not being the accused' occurring in Section 319 Cr.P.C. includes a person who was named in the FIR but was not charge-sheeted by the police. It was submitted that during trial, PW-1 and PW-2 deposed before the court regarding the active role played by the revisionists in assaulting the deceased and injured witnesses. Therefore, the trial court possessed full jurisdiction to summon them to face trial.
7. Learned counsel for the respondent placed reliance upon the authoritative pronouncements of the Supreme Court in Joginder Singh and Another v. State of Punjab and Another and Suman v. State of Rajasthan.
Statutory Framework of Section 319 Cr.P.C.
8. For proper appreciation of the arguments advanced by learned counsel for the parties, it is relevant to examine Section 319 of the Code of Criminal Procedure, 1973:
'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; and
(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.'
9. A somewhat similar provision was contained in Section 351(1) of the Code of Criminal Procedure, 1898. Section 319 of the 1973 Code substantially clarified and widened the powers of the criminal court. The Law Commission in its 41st Report recommended these changes to ensure that every person against whom evidence of complicity emerges during trial can be brought to justice before the same forum.
10. Section 319 Cr.P.C. applies to all criminal courts including the Court of Session. The trial court Section 319 powers can be invoked at any stage of inquiry or trial after recording evidence, provided the evidence discloses the complicity of persons not currently facing trial.
Precedents on Cognizance and Addition of Accused
11. In the landmark case of Suman v. State of Rajasthan and Another, AIR 2010 SC 518, the Apex Court held as follows:
'In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of offence Section 190 and not of the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in Pravin Chandra Mody v. State of Andhra Pradesh, the term complaint would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, under Section 190(1)(b).'
The Supreme Court further observed regarding committal proceedings under Section 193 read with Section 209 Cr.P.C.:
'It will thus appear clear that under Section 193 read with Section 209 of the Code when a case is committed to the Court of Session in respect of an offence the Court of Session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be no question of reading Section 319(1) subject or subordinate to Section 193.'
'The argument that Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police under Section 169 Cr.P.C. was rejected by the Court. 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 Section 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.'
12. In Joginder Singh and Another v. State of Punjab and Another, (1979) 1 SCC 345, the Apex Court held:
'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 an extraordinary power which is conferred on the court and should be used sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.'
13. In Lok Ram v. Nihal Singh and Another, (2006) 10 SCC 192, the Apex Court examined the correctness of the direction given by the High Court for impleading the appellant as an accused in terms of Section 319 Cr.P.C. The facts of that case were that two daughters of Nihal Singh (the complainant) were married to two sons of the appellant Lok Ram. One of the daughters of Nihal Singh, namely, Saroj died on 14.9.2001. Soon thereafter, Nihal Singh filed a complaint alleging commission of offence under Section 406 read with Section 34 IPC. During investigation, the appellant claimed an alibi that he was serving in a school at the time of the incident. His plea was accepted by the Investigating Officer and he was not charge-sheeted. During trial, the complainant filed an application under Section 319 Cr.P.C. By an order dated 6.9.2002, the learned Sessions Judge rejected the application. That order was reversed by the High Court and a direction was given to the trial court to proceed against the appellant by summoning him. Before the Supreme Court, it was argued that the appellant could not be summoned under Section 319 Cr.P.C. because even though he was named in the FIR, the police found no evidence against him. Rejecting this argument and citing Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Michael Machado v. CBI, the Supreme Court held that the trial court has undoubted jurisdiction to add any person not being the accused before it to face trial along with other accused persons.
14. In Suman v. State of Rajasthan (supra), the Apex Court reiterated:
'On a careful reading of Section 319 of the Code as well as the aforesaid 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 the 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 trial. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face 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 in Sohan Lal v. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.'
Legal practitioners analyzing trial court summoning doctrines frequently examine how evidentiary standards operate across other statutory settings, such as regulatory compliance examined in SEM V Competition Law - Unit II Class Notes or matrimonial criminal jurisprudence analyzed in Preeti Gupta Vs. State of Jharkhand [Supreme Court of India, 13-08-2010].
Analysis and Findings of the High Court
15. From a perusal of the order of the lower court, it is clear that the learned court below has held that the evidence on record, if unrebutted, will lead to the conviction of the accused persons. The order of the learned court below is supported by the decision of the Apex Court in Sarabjit Singh Vs. State of Punjab and Another, 2009 (3) JIC 522.
16. From the above discussion, there is no illegality or irregularity in the order of the learned court below summoning the revisionists under Section 319 Cr.P.C.
The principles reaffirmed in this judgment highlight the vital supervisory jurisdiction of the trial court to ensure that all culpable individuals are brought to trial. The criminal justice system cannot remain restricted solely by the conclusions reached by the police during preliminary investigation. Where eye-witness depositions in open court establish specific overt acts against persons named in the first information report, the trial judge is duty-bound under Section 319 Cr.P.C. to summon such individuals, thereby preventing any miscarriage of justice resulting from omissions in the police final report.
Furthermore, the statutory safeguard under Section 319(4) Cr.P.C. guarantees that when an additional accused is summoned, the trial against them commences afresh, and all prosecution witnesses are re-heard in their presence. This ensures complete protection of the fundamental rights of the summoned accused under Article 21 of the Constitution, granting them full opportunity to cross-examine witnesses and present their defense during the subsequent proceedings.
This ruling reinforces the fundamental distinction between the investigative domain of law enforcement agencies and the judicial domain of criminal courts. While investigating officers may form an administrative opinion regarding the sufficiency of evidence during the pre-trial stage under Chapter XII of the Code of Criminal Procedure, such opinion does not bind the trial court once substantive oral testimony is tendered on oath. When sworn testimony before the court implicates individuals in heinous offences, the court retains the paramount statutory responsibility to ensure that all perpetrators face judicial scrutiny in accordance with law.
Conclusion and Disposal of Revision
17. The criminal revision is devoid of merits and is hereby dismissed.
Revision dismissed.