Allowed

Pandurang S/O Jagannath Deshpandeand Ors. v. the State through P.S.I Afzalpur Police

Karnataka HC21 Jun 2016CRL.RP/200033/2016

Case brief

AI extract

What is this about?

This order allowed a criminal revision petition challenging the summoning of petitioners under Section 319 CrPC. The High Court held that since petitioners were in the FIR but not charge-sheeted, the court below failed to exercise special care required by Supreme Court guidelines and lacked compelling circumstances. The order summoning the petitioners was quashed.

What did the court decide?

The proceedings initiated against the petitioners under Section 319 CrPC were quashed.

Pandurang S/O Jagannath Deshpandeand Ors. Vs the… — Criminal Trial and Appeal | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

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DATED THIS THE 21^ST DAY OF JUNE, 2016

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BEFORE

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THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

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CRIMINAL REVISION PETITION NO.200033 OF 2016

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BETWEEN:

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Pandurang S/o Jagannath Deshpande Aged about 85 years,

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Sunil S/o Pandurang Deshpande Aged about 49 years,

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Sameer S/o Pandurang Deshpande Aged about 43 years,

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All Residings at 161-C, Jagannath LDS Marg, Kurla-H, Mumbai – 70, Maharashtra State.

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… PETITIONERS

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(Shri Ameet Kumar Deshpande, Advocate)

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AND

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The State Through Police Sub Inspector, Afzalpur Police Station, Afzalpur.

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…RESPONDENT

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(Shri Maqbool Ahmed, Government Pleader)

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This Criminal Revision Petition is filed under Section 397 of Code of Criminal Procedure, 1973, praying to allow this Revision Petition, call for the records in Special Case (SC/ST) No.38/2013 and set aside the order dated 15.02.2016 passed in Special Case (SC/ST) No.38/2013 by the Hon’ble II Additional Sessions Judge at Kalaburagi, in so far these petitioners are concerned, and to pass any other appropriate orders, as this Hon’ble Court deems fit.

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This petition coming on for Admission this day, the Court made the following:

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O R D E R

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The petition coming on for admission, is heard at length and

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is disposed of by this order.

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The present petition is preferred against an order passed under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’, for brevity). The prosecution had filed the application under Section 319 Cr.P.C. with a prayer to summon Accused No.1 - Panduranga, Accused No.2 – Sunil, Accused No.3 – Samir, Accused No.4 – Subhash and

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Accused No.5 – Sharanbassu, on the ground that the case was registered against six persons and the charge-sheet was filed only against one person namely, Maharaya, with the above said five accused having been dropped from the proceedings.

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The trial had commenced and 10 witnesses were examined and during the course of evidence, it was discovered by the prosecution that the above named persons were also present at the time of the incident and may have committed the offence and therefore, an application was moved to summon them so that they also face the trial with the accused Maharaya. It is on hearing the prosecution as well as the counsel for the defendants that the application had been allowed on 28.02.2015. That order was challenged before this Court in an earlier petition in Crl.P.200037/2015. The petition was allowed and the order was set aside while directing the court below to reconsider the case, keeping in view the decision of the Apex Court in the case of Hardeep Singh vs. State of Punjab & Others 2014 (3) SCC 92, and

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to pass a fresh order. It is on such remand that the present impugned order has been passed.

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The court below has concluded after a detailed hearing that whether the persons now sought to be summoned have committed offences or not would be a matter for final adjudication. But, in considering the application under Section 319 Cr.P.C., the court below has opined that there was sufficient material on record to frame charges against the petitioners herein and therefore, has allowed the petition and has directed issuance of summons to the

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accused to stand trial. It is this reasoning which is sought to be questioned in this petition.

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It is pointed out that the reasoning of the court below that there was sufficient material to frame a charge against the accused already on record and that the power under Section 319 Cr.P.C. could be invoked to summon the accused to stand trial, is not in consonance with the settled legal position and he would seek to place reliance on a decision of the Supreme Court in the case of

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Brindaban Das and others vs. State of West Bengal (2009) 3 SCC 329 , where the case law has been reviewed and digested.

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It is pointed out that on a conspectus of the principles laid down in several decisions of the Supreme Court, the Apex Court has held that the common thread in most matters where the use of discretion is in issue, is that in the exercise of such discretion each case has to be considered on its own set of facts and circumstances. In matters relating to invocation of power under Section 319 Cr.P.C., the court is not merely required to take note of the fact that

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the name of a person who has not been named as an accused in the F.I.R. has surfaced during the trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their reexamination could prejudice the prosecution and delay the trial, the Trial Court has to exercise such discretion with great care and perspicacity. Although a somewhat discordant note was struck in Rajender Singh vs. State

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of UP (2007) 7 SCC 378 , the views expressed in the majority of decisions of the Supreme Court on the point subscribe to the view that power under Section 319 Cr.P.C. is to be invoked not as a matter of course but in circumstances where the invocation of such power is imperative to meet the ends of justice.

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Therefore, the learned counsel would submit that the mere fact that there is some evidence which would be sufficient to frame a charge, according to the court below, is intenable, since it is settled law that the evidence appearing on record must be sufficient

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to convict the accused and not merely to frame a charge or to take cognizance. This is the consistent view expressed by the Supreme Court and therefore, the observation of the court below that the case against the accused could be trashed out at a de novo trial, would indicate that the endeavour is to embark on a wild goose chase, on matters which are yet to come on record and therefore, he would submit that the order impugned is clearly against the law of the land. Even on merits, he would point out that it is on record that

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the complainant has made divergent statements in alleging that these petitioners were also involved. Thereafter has resiled, to restrict his allegation only against the accused who is on trial. It is therefore on the initiative of the Prosecution which has treated the complainant as a hostile witness, it is sought to be made out that these accused have been named by the complainant and it is on that footing that it was pleaded that there is sufficient material to summon the accused. This, it is emphasized, was not sufficient material for the court to have invoked the extra-ordinary power under Section 319 Cr.P.C. and seeks that the petition be allowed.

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The learned Government Pleader on the other hand, would submit that the decision relied upon by the learned counsel for the petitioner has been considered in a later Constitution Bench judgment of the Supreme Court in Hardeep Singh (supra) and a more comprehensive judgment has been rendered, and seeks to rely on the following passage therein:

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“As held in Mohd. Shafi vs. Mohd. Rafiq (2007) 14 SCC 544 and Harbhajan Singh vs. State of Punjab

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(2009) 13 SCC 608, all that is required for the exercise of the power under Section 319 Cr.P.C. 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 pre-requisite 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 straight-jacket 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 Cr.P.C. 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 cross-examination at all, for in light of sub-section 4 of Section 319 Cr.P.C., 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

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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 the case of Dharam Pal vs. State of Haryana (2014) 3 SCC 306 which is again referred to in Hardeep Singh’s case, another Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation.

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Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of, namely, (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Materials coming before the

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Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet. Therefore, the word 'evidence' referred to in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial and hence he would submit that the court below has acted in its discretion which is in accordance with the law laid down by the Constitution Bench.

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However, the learned counsel for the petitioner would insist that Hardeep Singh’s case has not laid down any law different from the law which was already settled and which has been reiterated in Brindaban Das’s case. It is not the case of the prosecution that Brindaban Das has been over-ruled. The Constitution Bench judgment merely discusses other dimensions and ought not to be misread to efface the decisions which have been reviewed and digested in Brindaban Das’s case and therefore,

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he would seek to sustain the argument canvassed to urge that the impugned order is not in accordance with law.

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In addressing the controversy, we may first note the language of Section 319, which reads as follows:

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“319. Power to proceed against other persons appearing to be guilty of offence.

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(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.

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(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.

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(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.

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(4) Where the Court proceeds against any person under sub-section (1), then-

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(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;

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(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.”

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It is to be observed that in the paragraph relied upon by the learned Government Pleader as extracted from Hardeep Singh’s case, no doubt it is laid down that 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 and in fact even if examination-in-chief is untested by cross-examination, undoubtedly, in itself was evidence. However, those observations are made in answering the question framed by the Apex Court as follows:

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“Does the word ‘evidence’ in Section 319 Cr.P.C. mean as

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arising in Examination-in-Chief or also together with CrossExamination?”

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Thereafter, the Apex Court has proceeded to formulate yet another question namely,

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“What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C.?”

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After referring to the case law including the judgment in Brindabandas (supra), it is concluded as follows:

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“106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence

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that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.”

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(Emphasis supplied)

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The court has framed a further question, namely,

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“In what situations can the power under this section be

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exercised: not named in FIR; named in the FIR but not charge-

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sheeted or has been discharged?

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In addressing the difference with regard to a person who has

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been discharged and insofar as a person who has not been investigated or not been charge-sheeted, as follows:

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“112. However, there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the

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court and upon judicial examination of the material collected during investigation, the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The Court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 Cr.P.C. without resorting to the provision of Section 319 Cr.P.C. directly.”

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Therefore, in reconciling the view of the Constitution Bench

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that the test that has to be applied is “the one which is more than

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prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction” is in consonance with the further opinion as regards the difference in respect of persons who have been named in the FIR but not charge-sheeted or has been discharged.

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Since the petitioners were named in the FIR but not chargesheeted, they would have to be treated differently in the manner as stated above and it is not evident from the impugned order that the court below has taken recourse to such measures but has proceeded as if the petitioners were named for the first time in the course of evidence in order that the court having been satisfied to the degree as required in invoking the power under Section 319 as expressed by the Constitution Bench.

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Consequently, the petitioners have certainly made out a case for interference. The impugned order is bad in law and is contrary to the guidelines enumerated by the Supreme Court and

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accordingly, the petition is allowed. The proceedings initiated

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against the petitioners stand quashed.

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Sd/JUDGE

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Pandurang S/O Jagannath Deshpandeand Ors. v. the State through P.S.I Afzalpur Police

Case brief

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Pandurang S/O Jagannath Deshpandeand Ors. v. the State through P.S.I Afzalpur Police

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