Allowed

Smt Balbiri Devi v. State of U.P and Another

Allahabad HC13 Oct 2022A482/19213/2022

Case brief

AI extract

What is this about?

Court allowed an application under Section 319 Cr.P.C. to summon an accused named in FIR but not charged. The High Court quashed lower court orders rejecting the application as belated and remanded the matter, holding that power can be exercised after examination-in-chief based on Supreme Court precedents.

What did the court decide?

Orders dated 25.04.2018 and 13.12.2021 set aside; application under Section 319 Cr.P.C. allowed; matter remanded to Trial Court.

Smt Balbiri Devi Vs State of U.P and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 19213 of 2022

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Applicant :- Smt Balbiri Devi Opposite Party :- State Of U.P And Another Counsel for Applicant :- Santosh Yadav Counsel for Opposite Party :- G.A.,Sanjay Kumar Mishra

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Hon'ble Saurabh Shyam Shamshery,J.

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1 . Heard Sri Santosh Kumar Tiwari, Advocate holding brief of Sri Santosh Yadav, learned counsel for applicant, learned AGA for State and Sri Sanjay Kuamr Mishra, Advocate for Opposite Party No. 2.

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2 . In the present case the applicant is complainant, who has approached this Court as her application filed under Section 319 Cr.P.C. to summon accused-Opposite Party No. 2, was rejected vide order dated 25.04.2018 passed by Additional Civil Judge (Junior Division)/ Judicial Magistrate, Court No. 1, Kairana, Muzaffarnagar in Criminal Case No. 178/9 of 2006, on the ground that it was filed belatedly as well as PWs-1, 2 and 3 have made contradictory statements qua to the issue of date of incident. Revision filed by applicant against aforesaid has also been rejected by Additional Sessions Judge, Kairana, Shamli vide order dated 13.12.2021.

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3 . Learned counsel for applicant submits that application under Section 319 Cr.P.C. was filed on 16.08.2016 whereas statement of PW-3 was recorded on 25.09.2017, therefore, it was filed prior to conclusion of his evidence. There are only three prosecution witnesses, therefore, there was no delay.

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4 . Above submission was opposed by learned counsel appearing for Opposite Party No. 2. He submitted that Opposite Party No. 2 was not named in the FIR as well as no evidence was brought during investigation and as such charge sheet was not filed against him. However, he is not disputing the date of filing application under Section 319 Cr.P.C. as well as the date of testimony of PW-3 recorded before Court.

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5 . Heard learned counsel for parties and perused the material available on record.

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6 . Before adverting to the facts of case it would be apposite to refer the recent judgment of Supreme Court in Sartaj Singh vs The State Of Haryana and another, (2021) 5 SCC 337 which has followed the judgment passed by Constitution Bench in Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 and relevant paras are mentioned hereinafter:

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“6.1.2 In the said case, the following five questions fell for consideration before this Court.

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(i) What is the stage at which power under Section 319 CrPC can be exercised?

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(ii) Whether the word “evidence” used in Section 319(1) CrPC could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

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(iii) Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial ?

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(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

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(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?”

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xxx xxx

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“6.1.4 While answering Questions (iii), namely, whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial, this Court, in the aforesaid decision has observed and held as under:

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“58. To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 CrPC, the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being

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drawn up by the court for summoning a person arise out of the availability of the facts and material that come up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be “where … it appears from the evidence” before the court.

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Before we answer this issue, let us examine the meaning of the word “evidence”. According to Section 3 of the Evidence Act, “evidence” means and includes:

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“(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

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such statements are called oral evidence;

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(2) all documents including electronic records produced for the inspection of the court;

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such documents are called documentary evidence.”

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xxx

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It is, therefore, clear that the word “evidence” in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation.

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xxx xxx xxx

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This pretrial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material along with the chargesheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the chargesheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges.

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It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word “evidence” as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court.

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The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.

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In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The “evidence” is thus, limited to the evidence recorded during trial .

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6.1.5 While answering Question (ii) namely, whether the word “evidence” used in Section 319(1) Cr.P.C. means as arising in examination-in-chief or also together with cross-examination, in the aforesaid decision, this Court has observed and held as under:

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The second question referred to herein is in relation to the word “evidence” as used under Section 319 CrPC, which leaves no room for doubt that the evidence as understood under Section 3 of the Evidence Act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the Evidence Act, which also includes the document and material evidence in the Evidence Act. Such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which

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includes the statement during examination-in-chief. In Rakesh (2001) 6 SCC 248 : 2001 SCC (Cri) 1090 : AIR 2001 SC 2521, it was held that: (SCC p. 252, para 10)

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“10. … It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under Section 319 CrPC. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under Section 319 should be exercised or not.”

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In Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554 : AIR 1998 SC 3148, this Court held that: (SCC p. 156, para 20)

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“20. … it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.”

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In Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899, it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross-examination is over and that there would be no illegality in doing so. A similar view has been taken by a two Judge Bench in Harbhajan Singh v. State of Punjab (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135. This Court in Hardeep Singh v. State of Punjab, (2009) 16 SCC 785 : (2010) 2 SCC (Cri) 355 seems to have misread the judgment in Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899, as it construed that the said judgment laid down that for the exercise of power under Section 319 CrPC, the court has to necessarily wait till the witness is cross-examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under Section 319 CrPC.

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We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.

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As held in Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : AIR 2007 SC 1899 and Harbhajan Singh (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135, all that is required for the exercise of the power under Section 319 CrPC is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s). It is essential to note that the section also uses the words “such person could be tried” instead of should be tried. Hence, what is required is not to have a mini trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any crossexamination at all, for in light of subsection (4) of Section 319 CrPC, the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination,undoubtedly in itself, is an evidence.

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Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 CrPC, the person sought to be arraigned as an accused, is in no way participating in the trial . Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319 CrPC, as such a procedure is not contemplated by CrPC. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(es) is obliterating the role of persons already facing trial. More so, Section 299 CrPC enables the court to

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record evidence in absence of the accused in the circumstances mentioned therein.

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Thus, in view of the above, we hold that power under Section 319 CrPC can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence .

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xxx xxx

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6.2 Considering the law laid down by this Court in Hardeep Singh (supra) and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till the crossexamination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by crossexamination; and (ii) 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 (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.

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xxx xxx

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6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC 368, after considering the observations made by this Court in Hardeep Singh (supra) referred to hereinabove, this Court has further observed and held that even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in chargesheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.” (Emphasis supplied)

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As referred above, while considering the application under Section 319 Cr.P.C. Court has to consider the evidence recorded before Court concerned. However, in the present case though Trial Court considered the evidence of PWs-1, 2 and 3 but it concentrated only on certain contradictions amongst the statements of witnesses with regard to date of incident and has not adverted to other portion of evidence wherein the name

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of Opposite Party No. 2 has also been mentioned as one of the assailant, who had participated in crime alongwith other accused. Court cannot scrutinize any evidence in part while considering application under Section 319 Cr.P.C.

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8 . Trial Court has also committed error while rejecting the application on the ground that it was filed belatedly, without appreciating that though trial is of the year 2006, however, testimony of PW-3 was concluded only in the year 2017 and application under Section 319 Cr.P.C. was filed much prior to it. Therefore, it cannot be held that it was filed belatedly. The error committed by Trial Court has also been perpetuated by Revisional Court also.

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9 . In view of above, the application is allowed. The orders dated 25.04.2018 passed by Additional Civil Judge (Junior Division)/ Judicial Magistrate, Court No. 1, Kairana, Muzaffarnagar and 13.12.2021 passed by Additional Sessions Judge, Kairana, Shamli, are here by set aside. Matter is remanded back to Trial Court to consider the application filed under Section 319 Cr.P.C. afresh in accordance with law and taking note of the judgment passed by Supreme Court in Sartaj Singh (supra). The aforesaid exercise shall be concluded by Trial Court preferably within a period of six weeks from today.

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Order Date :-13.10.2022 AK

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Digitally signed by AWADESH KUMAR Date: 2022.10.13 17:39:37 IST Reason: Location: High Court of Judicature at Allahabad

Smt Balbiri Devi v. State of U.P and Another

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Smt Balbiri Devi v. State of U.P and Another

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