Whether complainant can file petition under section 319 CRPC
Section 319 of Cr. P. C & Its Objective
The Section reads as:
319. Power to proceed against other persons appearing to be guilty of offence:
· 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.
· 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.
· Any person attending the Court, although not under arrest or upon a summon, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
·
Where the Court proceeds against any person
under sub- section (1), then -
a. the proceedings in respect of such person shall be commenced a fresh, and the witnesses re-heard;
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 the trial was commenced.
1. This revision is directed
against the orders dated 07.08.2017 passed by the learned Judicial Magistrate
First Class, Kamrup (M), Guwahati in C.R. Case
2. The facts leading to file the revision may shortly be stated that the petitioner (hereinafter referred to as the complainant) instituted a complaint case against the respondent No.1 along with three others before the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati which was registered and numbered as CR No. 1945C /2012. On receipt of the case record the learned trial court caused enquiry and after examining the prosecution witnesses has taken cognizance against only Gokul Deka under section 406 IPC. Accordingly, process was issued against him and the accused entered appearance in the case. The case proceeded with against the accused Gokul Deka although the respondent No.1 was initially implicated as an accused in the case.
3. The trial of the case commenced and the prosecution witnesses adduce evidence after charge and they were examined and cross examined. Thereafter, statement of defence was recorded in terms of Section 313 Cr.P.C. and the case was posted for argument. Both the parties filed their written argument in connection with the above case, but the learned trial Court by exercising the power under Section 311 Cr.P.C. called for examination of the present respondent No. 1 Geeta Barman as Court witness. Accordingly, the respondent No. 1 appeared before the trial Court and she was examined and cross examined as CW-1.
4. On 24.04.2017 the petitioner in terms of Section 319 of Cr.P.C. which was numbered as 1185/17 seeking for initiating the proceeding against the respondent No. 1 as an accused inasmuch as the statement of this CW-1 has surfaced which requires the trial of the present respondent No. 1 and who appears to be guilty for commission of the offence in the case. However, the petition was heard by both sides.
5. The learned trial court heard the parties on the petition and passed the impugned order dated 07.08.2017 rejecting the petition holding that there is nothing evidence on record that the present respondent No.1 Geeta Barman has misappropriated the auto vehicle and no case was made out for putting the respondent No. 1 on trial.
6. Being highly aggrieved at
and dissatisfied with the order so passed b the learned court below, the
petitioner has preferred the revision on the following grounds inter alia that
–
(i) For that, the material on record and proposition of the provisions under Sections 319 Cr.P.C. warrants interference of the court for holding prima facie that the respondent No.1 appears to have involved in the instant case and it suffices to initiate a proceeding against the present respondent No. 1, but the trial court failed to discuss the materials on record and rejected the petition, as such the impugned order is liable to be quashed.
(ii) As a trial commences after framing of charge an enquiry could be understood to be a pre-trail enquiry. Enquiries under sections 200, 201, 202 and under section 398 Cr.P.C. are spices of the enquiry contemplated by section 319 Cr.P.C. Materials coming before the trila court in course of such enquiry can be used for corroboration of the evidence recorded in the Court after the trial commences, for exercise of power under Section 319 Cr.P.C. and also to add an accused who appears to be guilty or named as an accused. But the learned Trial Court did not discuss anything about the materials and passed the impugned order dated 07.08.2017 and the same is liable to be quashed.
(iii) For that, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person who can be a accused. In the present case in hand the trial court never applied its mind judicially inasmuch as the instant complaint was initially filed against the present respondent also, although cognizance was not taken against het which was totally ignored by the learned trial court.
(iv) For that on examination of respondent No.1 as court witnesses the trail court recorded her evidence which has surfaced the requires of putting the respondent No. 1 on trial, but the trial only consider her deposition and passed the impugned order holding that there is no evidence to proceed with against her which not tenable in the eye of law and the impugned order is bad in law and is liable to be set aside.
(v) For that learned trial Court has committed a patent illegality in overlooking the statutory provisions as to whether there are sufficient grounds to proceed with the case by summoning the respondent No.1 and passing of the impugned order dated 07.08.2017 is liable to be quashed.
(vi) For that, in any view of the matter the impugned order dated 07.08.2017 cannot allow to be sustained in law and as such the same is liable to be quashed.
- · The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.
- · The power conferred under Section 319 (1) Cr. P. C applies to all Courts including the Sessions Court.
- · The phrase any person not being the accused occurring in Section 319 Cr. P. C does not exclude from its operation an accused who has been released by the police under Section 169 of the Code of Criminal Procedure, 1973 and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court.
- · The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word evidence in Section 319 Cr. P. C contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the Court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the addition let in before it.
- · The power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A more doubt about involvement of the other person on the basis of the evidence let in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that the other person be tried with the already arraigned accused.
- · The Court while exercising its power under Section 319 of the Code of Criminal Procedure, 1973 must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.
- · Regard must also be had by the Court to be constraints imposed in Section 319 (4) Cr. P. C that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial.
- · The Court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.
7. Now the Point for Determination :-
i) Whether there is any irregularity or impropriety with the Order dated 07.08.2017 passed by the Ld. JMFC, Kamrup (M)?
8. Discussion, Decision and
Reasons for such Decision :-
I have carefully perused the Revision Petition, the impugned order and the case record of the Ld. Court below. I have already heard the argument advanced by the learned counsel for both the sides. Accordingly, I proceed to dispose of the case.
9. I have already heard the Ld. Counsel for both the sides on the Revision Petition. The Ld. Trial Court vide its order dated 07.08.17 was pleased to reject the petition filed u/s 319 Cr.P.C. filed by the complainant for summoning Geeta Barman as an accused to the case. The Ld. Counsel for the appellant has submitted that this order is wrong and erroneous and needs interference of this Court.
10. On the other hand, the Ld. Counsel for the respondent has submitted that it is not a fit case to allow the Revision Petition which is liable to be dismissed.
11. During the course of argument, Ld. Counsel for the Revision Petitioner has submitted that the order under challenge was passed mechanically by not considering the evidence on record. Therefore, the Ld. Counsel for the complainant/Revision Petitioner has submitted that the order of the Ld. Trial Court may be set aside and Geeta Barman may be added as an accused in view of Section 319 of Cr.P.C.
12. Now let me see section 319
of Cr.P.C.–
“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 witnesses re-heard;
(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.”
13. The Hon’ble Apex Court in
Periyasami v. S. Nallasamy, (2019) SCC
342 : 2019 SCC OnLine SC 379 at page 345 has observed that
“10. The learned counsel for the appellants relies upon a Constitution Bench judgment of this Court in Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] to contend that satisfaction required to invoke the power under Section 319 of the Code to arraign an accused is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is only where strong and cogent evidence occurs against a person from the evidence laid before the court, such power should be exercised and not in a casual and cavalier manner. The Court held as under: (SCC p. 138, paras 105-06)
“105. Power under Section 319 Cr,P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
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 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 CrPC to form any opinion as to the guilt of the accused.”
14. I have gone through the order passed by Ld. Trial Court. Also gone through the evidence recorded by that Court. The Ld. Trial Court has also relied the judgment of Hon'ble Apex Court of Brijendra Singh & Ors. Vs. State of Rajasthan in Criminal Appeal No. 763/2017 , considered the evidence on record and hold that there is no strong evidence to presume that CW-1 has also committed the alleged offence. Further, handing over the Auto to the CW-1 does not at all imply that she has mis-appropriated the vehicle of the complainant.
15. From the evidence on record it is seen that CW-1 identified herself to be the wife of the complainant; whereas the complainant in his evidence in crossexamination has deposed that he only knew Geeta Barman (CW-1). It implies that the relationship of husband and wife between the complainant and Geeta Barman is denied by the complainant. On the other hand, the PW-2 during his cross-examination deposed that he has knowledge that one case is pending between the complainant and Geeta Barman (CW-1) in Family Court.
16. The Ld. Trial Court has rightly consider that if the accused in collusion with the CW-1 had misappropriated his auto, but the evidence on record, do not show any strong ground to believe that CW-1 was involved in the alleged offence. There is no strong evidence to presume that CW-1 also committed the alleged offence. Further, handing over the Auto to the CW-1 does not at all imply that she had misappropriated the vehicle of the complainant.
17. Upon perusal of the evidence on record, I am of the view that there is lack of cogent evidence occurs against Geeta Barman from the evidence led before the court to implicate or to add Geeta Barman as an accused to the case.
18. Having considered all, I am of the view that the Ld. Trial Court has rightly passed the order rejecting the petition filed u/s 319 Cr.P.C. by the complainant needs no interference from this Court. Thus order passed by the Ld. trial Court is hereby upheld. Accordingly, the Revision Petition is dismissed on contest.
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