Single Judge dismissed criminal revision challenging summons to an accused already deleted from charge sheet. Upheld Sessions Court's exercise of power under Sections 193/319 CrPC without mandatory cross-examination of sums.
Revision petition dismissed; no summons quashed; pending miscellaneous petitions closed.
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THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI
CRIMINAL REVISION CASE No. 2387 OF 2014
ORDER:
This Criminal Revision Case under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) is filed by the petitioner/A3 assailing the order dated 18.11.2014 of the learned Special Sessions Judge for Trial of Cases under SCs/STs (POA) Actcum-Additional Sessions Judge, Khammam passed in SC 19 of 2014 taken on file for the offences punishable under sections 147, 148, 302, 307 read with 149 and under sections 3 (2) (v) of the above said special Act.
1. (a) Though A3 was deleted by the Investigating Officer from the array of the accused, the learned Additional Sessions Judge had directed for issuance of summons to A3 by inter alia observing in the impugned order that the involvement of the said A3 was mentioned in the FIR and also in the statement of the informant/LW1 recorded under Section 161 of the CrPC by the police.
2. I have heard the submissions of the learned counsel for the petitioner/A3 and of the learned Additional Public Prosecutor. I have carefully perused the material record.
3. The learned counsel for the petitioner/A3 would submit as follows: “The investigation in the crime was entrusted to an Officer of the rank of the Additional Superintendent of Police. The said officer had thoroughly investigated into the case and had recorded the statements of the witnesses LWs 1 to 10. His investigation had revealed that A3 was not involved in the offence. Therefore, he had obtained the permission of his Superior Officer and had deleted A3 from the array of the accused and had laid the charge sheet against the other accused excluding A3.
Indeed no case is made out against the said accused for laying a charge sheet against him, as LW2-Lavudiya Bhadru, who is one of the injured witnesses, LW3-an eye-witness and LW10, who is also injured in the incident and who is the wife of the deceased, did not speak about the presence and involvement of A3 in the incident. They did not make any statements attributing any overt acts to the said accused. Except taking his name in the report there are no specific allegations against A3. Investigation disclosed non participation of A3 in the alleged incident. However, the learned Additional Sessions Judge without any additional material and by merely perusing the statements of the witnesses recorded as per the provision of Section 161 CrPC had come to a conclusion that A3 is also involved in the case and had directed issuance of summonses to him. The said conclusion is not supported by any material much less additional material. In the absence of specific allegations and when no overt acts are attributed to A3 and when the allegations are of omnibus nature, the learned Additional Sessions Judge ought not to have directed for issuance of summons to A3, who was deleted by the Investigating Officer from the array of the accused after obtaining permission from his superior officer. The order impugned which causes prejudice and great hardship to the A3 and which unnecessarily subjects him to the ordeal of criminal trial is liable to be set aside to secure the ends of justice.” On the other hand, the learned Additional Public Prosecutor had supported the orders by stating that the first information, the charge sheet and the statements of the witnesses recorded under Section 161 of CrPC clearly lay bare the involvement of A3.
4. A careful perusal of the first information, the F.I.R, the charge sheet and the statements of witnesses, the copies of which are made available to this Court, would disclose a case which is as follows: “On 01.07.2012 the deceased and his family members were attending to
the field work in the land at Sunkara Banjar. After lunch hour all the accused including A3, armed with big knives/Kota Kathulu and sticks, came to that land and attacked the deceased and his family members by saying that ‘land problem would be solved if only they killed the deceased and his family members’ and beat them with sticks and hacked them on their heads and caused bleeding injuries. On seeing the incident, when the informant and the LW2-Lavudiya Bhadru went to their rescue they had also sustained injuries in the incident. The deceased and his wife-LW10 had also sustained head injuries due to hacking with knives by some of the accused and beating with sticks by the other accused. Later, they both were taken into the Government Hospital, Kothagudem for treatment. The Doctor had declared that the deceased Somla had died.” A plain perusal of the first information lodged with the police and the statement of LW1, the informant, would make it clear that Guguloth Balu-A3 was also present and was involved in the incident. It is fairly conceded that as per the ratio in the decision in Kishun Singh v.
State of Bihar[1] the session Court can suo motu summon a person not named police report to stand trial even without recording evidence as after the case is committed to the Court of Session the bar placed on the power to take cognizance under section 193 gets lifted. This is so in view of the powers conferred by sections 193 and 319 of the CrPC. In the decision in Dharam Pal and others v. State of Haryana and another[2] the five judge constitution bench of the Hon’ble Supreme Court of India while answering the Reference as to whether the decision in in Kishun Singh's case (supra) was correct or not, had held that the decision in Kishun Singh's case was the correct decision and that the learned Session Judge, acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate. Therefore, the impugned order directing issuance of
summons to A3 cannot be said to be unsustainable. Viewed thus, this Court finds that in the facts and circumstances of the case, no case is made out by the petitioner/A3 calling for interference with the order impugned.
5. In the result, the Criminal Revision Case is dismissed. Miscellaneous petitions pending, if any, in this Criminal Revision Case shall stand closed.
____________________________ M.SEETHARAMA MURTI, J
Date: 04.12.2014 MVA
2 issues framed by the court
Whether the Session Court erred in summoning an accused already deleted by the Investigating Officer based on material under Sections 193 and 319 of the CrPC.
Whether cross-examination of summonsed accused under Section 319 CrPC is mandatory before impounding evidence.
Colour shows how this judgement treated each authority
Kishun Singh v. State of BiharFollowed¶9
(1993) 2 SCC 16 · Who else cites this
Dharam Pal and others v. State of HaryanaFollowed¶10
AIR 2013 SC 3018 · Who else cites this
3 provisions across 1 enactments
Guguloth Balu
State of Andhra Pradesh
M. Seetharama Murti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
