Fakar Uddin Vs Durjan Khan and Anr.

2. In this petition, under Sections 482/397/401 of the Cr.P.C. read with Article 227 of the Constitution of India, the petitioner, namely, Fakar Uddin has challenged the Order dated 28.10.2014, passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 94/2014. It is to be noted here that vide impugned

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Order dated 28.10.2014, the learned Sessions Judge, Barpeta, had dismissed the petition No. 1744/2014, under section 319 Cr.P.C. filed by the learned Public Prosecutor, Barpeta to proceed against two more accused, namely, Kasem Khan and Rahim Khan, who were implicated by P.W. 1 and 2 during their examination in chief.

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Background facts:-

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3. The background fact leading to filing of this present petition is briefly stated as under:-

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“The petitioner is the informant in Barpeta P.S. Case No. 691/1995, corresponding to Sessions Cessions Case No. 94/2014, under Sections 448/326/302 of the IPC read with Section 25(1)(a) of the Arms Act. He lodged one FIR with the Officer-in-charge, Barpeta Police Station on 30.11.1995, alleging inter-alia amongst others that on the mid night of 19.11.1995, a group of miscreants including Jamal Bhuyan, Bahar Uddin, Farid Ali and Durjan Khan armed with dao, dagger, lathi, pistol, etc. entered into the dwelling house of his father by breaking the door and after removing the wearing apparels of his father, they caused his death by assaulting him with the said weapons and while his elder and younger brother, namely, Hakim Ali and Babul Ali, respectively, tried to save his father from the miscreants, they also caused grievous injuries to both of them and thereafter, they fled away from the scene and the informant’s brothers were taken to Gauhati Medical College and Hospital for treatment and the miscreants also left the pistol at the place of occurrence.

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Upon the said FIR, the Officer In-Charge of Barpeta Police Station had registered the case, being Barpeta P.S. Case No. 691/1995, under Sections 448/326/302 of the IPC read with Section 25(1)(a) of the

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Arms Act. Thereafter, the investigation carried out and during investigation, the Investigating Officer had arrested the accused named in the FIR and forwarded them to jail hazoot. Thereafter, on completion of the investigation, the Investigating Officer laid charge sheet against accused (i) Jamaluddin (ii) md. Baharuddin @ Bahadur (iii) Md. Farid Ali (iv) Md. Durjan Khan to stand the trial in the court under Section 448/326/302 IPC read with Section 25(1) (A) Arms Act.

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Thereafter, on appearance of the aforementioned accused before the court, the learned Sessions Judge, Barpeta, (trial court) had framed charge against them and examined two witnesses, namely Hakim Ali as P.W.1 and Fakar Uddin Ahmed as P.W.2. During the course of examination, P.W.1 and P.W.2 both had named Kashem Khan and Rohim Khan also as co-accused along with charged in the case.

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Thereafter, the learned Public Prosecutor, Barpeta had filed a petition, being Petition No. 1744/2014, under Section 319 of the Cr.P.C., before the learned trial court for proceeding against Kashem Khan and Rahim Khan as accused in the aforesaid case along with other accused charged in the said case. And after hearing learned counsel for both the parties, the learned trial court had dismissed the petition on the ground that P.W.1 and P.W.2 did not mention the name of above noted persons in their statements recorded under Section 161 of the Cr.P.C. and their names also find no mention in the FIR. Being aggrieved the petitioner approached this court by filing present petition.”

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Submissions:-

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4. Mr. Sikdar, learned counsel for the petitioner, referring to a decision of

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Constitutional Bench of Hon’ble Supreme court in the case of Hardeep Singh vs. State of Punjab and Others , reported in (2014) 3 SCC 92 , submits that the law in respect of invoking the provision under Section 319 of the Cr.P.C. is well settled and there is no requirement for mentioning the names of the persons as an accused in the statement recorded under Section 161 of the Cr.P.C. and also in the FIR and if the witnesses implicated them during trial they can be proceeded with along with other accused and on such count, the impugned order dated 28.10.2014, so passed by the learned trial court, is contrary to the provision of law. Therefore, Mr. Sikdar has contended to allow this petition by setting aside the impugned order dated 28.10.2014 and to direct the learned trial court for proceed against Kashem Khan and Rahim Khan as accused, along other accused standing trial, in the case of Barpeta P.S. Case No. 691/1995 and thereafter to proceed against them in accordance with law.

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5. On the other hand, Mr. Sarma, learned Additional Public Prosecutor also submits that the proposition of law so laid down by Hon’ble Supreme Court in the case of Hardeep Singh (Supra) is clear and the two persons having been named by P.W.1 and P.W.2, in their examination-in-chief, can be proceeded with as accused by invoking the jurisdiction under Section 319 of the Cr.P.C.

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5.1. However, Mr. Sarma, referring to a decision of a coordinate Bench of this Court in the case of Criminal Revision Petition No. 160/2018, submits that relying upon two decisions of Hon’ble Supreme Court in the case of Brijendra Singh & Others vs. State of Rajasthan , reported in (2017) 7 SCC 706 and in the case of Michael Machado & Another vs. Central Bureau of Investigation & Another , reported in (2000) 3 SCC 262 , the Bench was pleased to dismiss the petition filed under section 319 Cr.P.C. and thereby, upheld the order so passed by the learned trial court dismissing the said petition.

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Consideration:-

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6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 28.10.2014, passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 94/2014 and also gone through the decision of Hon’ble Supreme court in the case of Hardeep Singh (Supra) .

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7. It appears from the impugned order dated 28.10.2014, that the learned Sessions Judge, Barpeta had dismissed the petition filed by the learned Public Prosecutor before it under Section 319 of the Cr.P.C. on the ground that P.W.1 - Hakim Ali and P.W.2- Fakaruddin Ahmed did not mention the name of Kashem Khan and Rahim Khan in their statements recorded under Section 161 of the Cr.P.C. and their names also find no mention in the FIR.

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8. But, the proposition of law in respect of proceeding against a person, who has not been charge sheeted is well settled in plethora of decision of Hon’ble Supreme Court. In the case of Hardeep Singh (Supra) , Hon’ble Supreme Court, at paragraph No. 117.6, has dealt with the issue, while answering the question No. (v) formulated for discussion, as under:-

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“ Question (v):-

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Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?

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Answer:-

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117.6. 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

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tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh.”

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9. What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused was dealt by Hon’ble Supreme Court in answering the question No. 4, formulated for decision in paragraph No. 117.5, as under :-

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“ Question (iv):-

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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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Answer:-

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117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge". The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent)

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has to be different.”

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10. And while dealing with the word ‘evidence’, in the Section 319 Cr.P.C. Hon’ble Supreme Court, in paragraph No. 117.4, has held as under in answering the question No. (ii) as under:-

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“ Question (ii):-

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Whether the word "evidence" used in Section 319(1) CrPC 9 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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Answer:-

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117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.”

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11. In the case in hand, admittedly, the name of two persons, namely, Kashem Khan and Rahim Khan finds no mention in the statement of the P.W.1 - Hakim Ali and P.W.2- Fakaruddin Ahmed, recorded under Section 161 of the Cr.P.C. Also their names find no mention in the FIR. But, in their examination-in-chief, both P.W.1 and 2 had clearly implicated the above mentioned persons in assaulting their father, namely, Sorhab Ali and causing his death and also assaulting P.W.1. Section 319 Cr.P.C. requires that if 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 then such person could be tried together with the accused

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and the Court may proceed against such person for the offence which he appears to have committed. Thus, it appears that to invoke the jurisdiction under Section 319 Cr.P.C. the requirement is evidence. And further it appears from the record that there is evidence of P.W.1 and 2 who had in their examination-in-chief had clearly stated the name of Kashem Khan and Rahim Khan who had also assaulted their father, namely, Sorhab Ali. Besides, these two witnesses in their statement under section 164 Cr.P.C. also implicated Kashem Khan and Rahim Khan. But, these aspect eschewed consideration of the learned trial court.

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12. Thus, having examined the impugned order of the learned trial Court in the light of the ratio laid down by Hon’ble Supreme Court in the case of Hardeep Singh (Supra) , this court is of the view that the impugned order dated 28.10.2014, failed to withstand the test of legal scrutiny and on such count it requires interference of this court.

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13. And accordingly, the impugned order dated 28.10.2014, stands set aside and quashed. The learned trial court is directed to proceed against Kashem Khan and Rahim Khan by invoking the jurisdiction under Section 319 of the Cr.P.C. and thereafter, to proceed with the case in accordance with law.

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14. In terms of above, this criminal petition stands disposed of. Interim order, if any, stands vacated.

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JUDGE

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Fakar Uddin v. Durjan Khan and Anr.

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Fakar Uddin v. Durjan Khan and Anr.

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