THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR CRIMINAL REVISION CASE No.632 OF 2014 J U D G M E N T:
The petitioners, who are sought to be impleaded as A-8 and A-9, filed the present revision under Sections 397 and 401 CrPC, aggrieved by the order dated 28.02.2014 passed in Crl.M.P.No.643 of 2013 in C.C. No.73 of 2009 on the file of Judicial First Class Magistrate, Rajampet, wherein and whereunder, the application filed by the Public Prosecutor under Section 319 CrPC seeking addition of these petitioners as accused was allowed.
The case facts in issue are as under :
L.Ws.1 and 10 were strong supporters of T.D.P., while the Accused 2, 4, 5 and the petitioners were supporters of Congress-I party. During the elections to Rajampet municipality, L.W.1 and L.W.10 are alleged to have supported one C.Ramesh belonging to T.D.P., whereas the accused supported M.Venkatesh belonging to Congress-I party. In the said elections, Ramesh got elected as 6th Ward Councilor. While the mother of A-3 by name J.Nagamma was elected as councilor for 5th ward. Differences cropped up between the two groups and as such both the groups were waiting for an opportunity to wreck vengeance against each other. On 26.09.2005 at about 4.45 p.m., while L.W.1 was returning to his house met L.W.10 and both were proceeding towards the house of P.W.1 situated at Ram Nagar. The accused who were waiting for an opportunity, collected deadly weapons and when L.Ws.1 and 10 reached the house, A-1 to A-5 along with their followers armed with hunting sickles, iron rod, axes, spears attacked L.Ws.1 and 10. A-2 is alleged to have beat L.W.10 with a spear on the left leg causing injury. A-3 is alleged to have beat L.W.10 with an iron rod on the neck causing injury. A-4 is alleged to have beat L.W.10 with the reverse portion of Axe on the left leg causing bleeding injury. A-5 is alleged to have made an attempt to hack L.W.1 and when he resisted the blow by putting his right hand to ward off the blow, sustained bleeding injuries on his right hand finger. A-4 is alleged to have beat L.W.1 with the reverse portion of the axe on the back causing swelling injury. A-4 is alleged to have beat L.W.10 with the reverse portion of the axe causing an injury on the right leg. Due to fear L.Ws.1 and 10 rushed into the house of L.W.10, bolted the doors from inside and raised cries seeking help. Basing on these allegations, a case in crime No.88 of 2005 of Rajampet (U) P.S., was registered. In the same scuffle L.W.10 along with their men attacked the accused and committed murder and in that connection a counter case was registered against the complainant group for the offences punishable under Sections 147, 148, 324, 326, 307, 302 read with 149, 120(B) IPC and Section 3(1)(x) of SCs and STs. (POA) Act, 1989. Police completed the investigation and filed charge sheet against some of the accused and deleted the names of the petitioners and three others from the array of the accused. During the course of evidence, P.Ws.1 and 2 deposed about the complicity of the petitioners along with others in the commission of the offence and as such the Public Prosecutor filed an application under Section 319 CrPC seeking their impleadment. By an order dated 28.02.2014 the learned Magistrate allowed the said application and added these two petitioners as accused. Challenging the same, the present revision is filed.
The learned counsel for the petitioners mainly submits that though the petitioners are shown as accused in the First Information Report but their complicity could not be established during the course of investigation and hence, they were deleted from the array of the accused. According to him, even as per the First Information Report no specific role was attributed to them with regard to attack on the injured. In the absence of any fresh material to connect the accused with the crime, he submits that adding them as an accused in the above case is illegal. He further submits that no explanation is forthcoming from the prosecution as to why the names of these two petitioners only were selected for impleading them as an accused when the names of three other persons were deleted from the array of the accused while filing charge-sheet. Going through the evidence of P.Ws.1 and 2 he submits that the surnames of the petitioners were wrongly described and without following the due process the surnames were corrected from Kola to Pola.
On the other hand, the learned counsel for the second respondent who got himself impleaded vide Crl.R.C.M.P. No.1498 of 2014 submits that there is no illegality in the order passed by the trial court as Section 319 CrPC empowers the Court to implead persons as accused against whom there is evidence.
Learned Public Prosecutor submits that change in the surnames of the petitioners in the evidence of P.Ws.1 and 2 will not go to the root of the matter as in the First Information Report given by P.W.1 the names of the petitioners are correctly mentioned. He further submits that the evidence of P.Ws.1 and 2 clearly disclose the complicity of the petitioners in the crime and hence submits that there is no illegality or irregularity in the order passed by the trial court, warranting interference by this Court.
He further submits that the order passed under Section 319 CrPC being an interlocutory order, revision against the said order would not lie.
Before proceeding further, it would be appropriate to deal with the maintainability of the present revision filed under Section 397 and 401 CrPC against an order passed in an application filed by the State under Section 319 CrPC.
As stated above, the application filed by the State under Section 319 CrPC for impleading the persons, who were deleted from the charge-sheet, was allowed. Challenging the said order the present revision under Section 397 and 401 CrPC is filed. The learned Public Prosecutor strenuously contends that the said order passed by the trial court would not lead to termination of the entire proceedings against all the accused and even if the present revision is allowed it will lead to termination of only two of the accused and as such it is to be treated as an interlocutory order.
In support of his argument, he relied upon the judgments of the
[1]
Apex Court in Madhu Limaye v. State of Maharashtra , Bhaskar Industries Ltd., v. Bhiwani Denim & Apparels Ltd. and
[2]
others . In Madhu Limaye’s case, the Apex Court while dealing with the power of the High Court under Sections 482 and 397(2) CrPC held as under :
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
The purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court." But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub- section (2) of Section 397 operates only in exercise of the revisional power of the High court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character, which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.
The judgment of the Apex Court in Bhaskar Industries Ltd., case, relied upon by the prosecution, may not be of much help to him. It was a case where the court was dealing with an order passed in Section 317 CrPC. While dealing with the said application, the Court after referring to various cases held as under :
“It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim
[3]
stage (vide Amar Nath v. State of Haryana , Madhu Limaye v. State
[4] [5]
of Maharashtra , V.C. Shukla v. State through CBI and Rajendra
[6]
Kumar Sitaram Pande v. Uttam ). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.”
Relying upon the judgment of the Apex Court in Mohit alis
[7]
Sonu and Anr. v. State of U.P. and Anr. the counsel for the petitioner would contend that any order passed in an application under Section 319 CrPC would strenuously effects the rights of the parties and as such a revision under Sections 397 and 401 CrPC is maintainable. According to him, the said order cannot be termed as interlocutory order as the revision if allowed would lead to termination of main proceedings insofar as these petitioners are concerned.
It would be useful to refer to the findings given by the Apex Court in the said judgment referred to above. It was also a case where an application filed under Section 319 CrPC was rejected by the trial Court and the same was challenged before the High Court under Section 482 CrPC. The Apex Court held that the order under challenge should have been filed under Section 397 CrPC and not by invoking the inherent jurisdiction under Section 482 CrPC. Differentiating the power between Sections 399 and 401 CrPC the Court held that when an order not being an interlocutory in nature has to be assailed in High Court in revisional jurisdiction then there should be a bar invoking inherent jurisdiction of the High Court. In other words the Court held that inherent power of the High Court can be exercised when there is no remedy provided in the Criminal Procedure for redressal of the grievance. The Court also held that inherent power of the High Court can ordinarily be exercised when there is no express provision in the code under which order impugned can be challenged.
Since the order passed by the trial Court decides the rights and liabilities of the revision-petitioners in respect of their involvement in the case and since the order substantially effects the rights of the accused or decides certain rights of the parties, it cannot be said that an order passed under Section 319 CrPC is an interlocutory order so as to bar a revision to the High Court under Section 397 CrPC. Though the order passed in the said revision may not lead to termination of the entire case against all the accused but definitely the said order will terminate the proceedings in sofar as these two petitioners are concerned. Hence, a revision under Section 397 CrPC can be held to be maintainable against an order passed in an application under Section 319 CrPC.
Coming to the scope and power of the Court to implead the accused under Section 319 CrPC, it may be useful to refer to Section 319 CrPC, which reads as under :
(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 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 trial was commenced.
The scope and application of Section 319 CrPC is a self chain section, independent of Section 190, 191 of CrPC. Section 319 CrPC deals with a matter arising during the course of proceedings already initiated. When the enquiry or trial is already commenced, the Court may independent of Section 190 CrPC proceed against a person who fulfills the character described in Section 319 CrPC. The power to take cognizance against such
[8]
persons rests with the Court. In Michael Machado v. CBI the Apex Court held that it is not enough that the Court entertained some doubt from the evidence about the involvement of another person in the offence. The court must have reasonable satisfaction from the evidence already collected regarding two aspects. Firstly, that the other person has committed an offence. Secondly, that for such offence that other person could be tried along with the already arraigned accused. Therefore, the Court while dealing with whether to invoke the power under Section 319 CrPC must itself should also address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of the newly added persons shall be commenced afresh and the witnesses revisionary Court- examined. Therefore, the exercise of power under Section 319 CrPC is wholly dependent on the evidence which comes during the trial from which it may appear that such person, other than the accused was also involved in the commission of offence. Though the power under Section 319 CrPC is discretionary and such discretion must be exercised judicially having regard to the circumstances of the case. (2011(2) ALD (Crl.)485 (AP)).
Dealing with Section 319 CrPC, a Constitutional Bench of
[9]
the Apex Court in Hardeep Singh v. State of Punjab and others held as under :
“17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge-sheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the Court that it is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.
18. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.
19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.”
In Babubhai Bhimabhai Bokhiria and another v. State of [10]
Gujarat and others the Apex Court after referring to Hardeep Singh’s case summarize the power under Section 319 as under :
“8. Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction is much higher.”
Keeping in view the principles of law enunciated by the Apex Court with regard to the power under Section 319 CrPC, I shall now deal with the case on hand :
As seen from the record, the First Information Report which came to be registered at the instance of one S.Venkata Subbaiah Naidu refers to the names of ten persons who have participated in the commission of the offence. The name of the petitioner find place in F.I.R. Police during the course of investigation recorded the 161 CrPC statements of all the witnesses. The 161 CrPC statements of L.Ws.1 to 7 which are placed before the Court, does not refer to the names of the petitioners in the commission of the offence. Even L.Ws.1 and 10 who were examined as injured witnesses do not refer to the names of the petitioners in the commission of the offence. However, during the course of trial, P.W.1 in his evidence categorically deposed about the involvement of the petitioners in the commission of the offence along with the other accused. It may be apt to extract the evidence of P.W.1 which reads as under :
“I am the resident of Rajampet town. In know L.W.2 who is residing opposite to my house. I know L.W.10 T.Lakshminarayana. I know L.Ws.2 to 9 and also all the accused. On 26.09.2005 in the evening at about 4.45 p.m., I am returning to my house situate at Ramnagar. On that day L.W.10 joined me and we were proceeding by talking together. When we are reaching my house Mallela Subbarayudu, Kola Srinivasula Reddy, Mallela Surendra, Kola Ramanareddy, Mallela Subbarayudu @ Karri Subbarayudu, Mallela Bulli, Krishna Yadav attacked us. A-2 (Mallela Subbarayudu S/o.Subbanna) attacked L.W.10 with spear (eeate) on his left leg and caused bleeding injuries. A-4 (Krishna Yadvav) attacked L.W.10 with a iron rod and caused bleeding injuries on the back side of his head. A-1 (Mallela Surendra) attacked me with iron rod on the back side of my head and caused bleeding injuries as a result I fell down on the ground. Mallela Subbu attacked me with a sickle and caused injury on my right hand thumb finger. Due to fear of the accused myself and L.W.10 went into my house and bolted the doors. The accused damaged the front portion of our house and damaged the bulbs and also cut the electrical wire. At that time L.Ws.2,3 and 5 came and raised cries by stating that the accused are going to kill me. In the mean time the surrounding people came to the spot and on seeing them all the accused went away. Somebody informed to L.W.9 who is my brother and he came and shifted me to Kadapa, where police came and recorded my statement. Ex.P-1 is my statement recorded by the police. Police examined me. I am the supporter of Telugudesam party and the accused are supporters of Congress-I party. The accused attacked me in order to cause loss to the Telugudesam party at Rajampet and their intention is to kill me. I took treatment in the hospital for a continuous period of 24 days.
Cross-examination : differed at request”
Even P.W.2 who was examined to speak to the incident refer to the names of the petitioners in her evidence. Subsequent thereto, an application was filed in the above C.C. seeking correction of the surnames of the petitioners from ‘Kola’ to ‘Pola’. The said application which was filed by P.W.1 was allowed permitting to make necessary correction in the surnames of the petitioners, not only in the evidence of P.W.1 but also in the evidence of P.W.2. Even if the evidence of P.W.2 is eschewed from consideration with regard to implication of the petitioners, since no application was filed by him to carryout the necessary corrections in the surnames of the petitioners, but the evidence of P.W.1 cannot be ignored. There appears to have been some mistake in typing the surnames of these two petitioners. As stated earlier the First Information Report which was given by P.W.1 contains the names of the petitioners and their surnames were correctly mentioned in the said report. Such being the position, it is difficult to believe that P.W.1 who lodged the FIR would have mentioned different surnames while giving evidence. In any event the said discrepancy may not go to the root of the matter as the identity of the accused is not in dispute. Further, the record also reveals that immediately after the evidence of P.W.1, the Public Prosecutor filed an application seeking correction of the surnames and the same was allowed after obtaining no objection from the counsel appearing for accused.
The statement of L.W.1 which was recorded while he was an inpatient in Government Hospital, Kadapa categorically refers to names of 10 persons who participated in the commission of the offence. The said statement was the basis for registering the crime against the accused including the petitioners by the police.
As stated earlier, P.W.1 in his evidence categorically deposed about the presence of these two petitioners at the time of the commission of the offence. According to him on 26.09.2005 at about 4.45 p.m., while he was returning to his house situated at Ramnagar along with L.W.10 and when they reached near his house of one Mallela Subbarayudu the accused Pola Srinivasula Reddy (A-8), Mallela Surendra, Pola Ramanareddy (A-9), Mallela Subbarayudu @ Karri Subbarayudu, Mallela Bulli, Krishna Yadav attacked them. A-2 (Mallela Subbarayudu S/o.Subbanna) is said to have attacked L.W.10 with a spear (eeate) on his left leg and caused bleeding injuries. A-4 (Krishna Yadvav) is said to have attacked L.W.10 with an iron rod causing bleeding injuries on the back side of his head. A-1 (Mallela Surendra) is said to have attacked him with iron rod on the back side of his head causing bleeding injuries. Mallela Subbu is said to have attacked him with a sickle causing an injury on right hand thumb finger. Due to fear of the accused, himself (P.W.1) and L.W.10 went into his house and bolted the doors. The accused are said to have damaged the front portion of the house and also damaged the bulbs apart from cutting the electrical wire. At that time L.Ws.2,3 and 5 came there and raised cries stating that the accused are going to kill him. In the mean time the neighbours gathered and on seeing them all the accused ran away.
Similarly the evidence of P.W.2 also discloses that on the date of incident at about 4.30 or 5.00 p.m., while P.W.1 and L.W.10 were going to the house of P.W.1, a group of persons armed with deadly weapons came there to the house of P.W.1 and attacked them. The said evidence of P.W.2 refers to the presence of the petitioners being armed with deadly weapons and their intention to kill P.W.1 and L.W.10.
Therefore, the evidence of P.Ws.1 and 2 amply establishes the presence of these two petitioners along with the other accused. Though the charge-sheet was filed deleting five names, the presence and participation of the proposed accused i.e., the petitioners herein, along with other accused is very much spoken to by P.Ws.1 and 2 in their chief-examination which corroborates the version given in the FIR. It is true that the evidence of P.Ws.1 and 2 does not disclose about the participation of the petitioner in attacking the injured but the evidence disclose their presence at the scene with weapons. Therefore, the complicity of the proposed accused with regard to their presence at the scene armed with weapons along with the other accused cannot be doubted at this stage. Whether really the petitioners shared a common intention with other accused or had a common object to kill or cause injuries to P.Ws.1 and L.W.10 is matter of trial and cannot be gone into at this stage. Hence, the order under challenge warrants no interference.
However, the presence of the proposed accused/petitioners during the trial is dispensed with except on the dates when their presence is specifically required by the Court.
With the above direction, this Criminal Revision Case is disposed of.
As a sequel to it, miscellaneous petitions pending if any in this revision, shall stand dismissed.
C. PRAVEEN KUMAR, J Date:17.11.2014
GM
[1] AIR 1978 Supreme Court 47(1)
[2] (2001) 7 SCC 401
[3] (1977)4 SCC 137
[4] (1977)4 SCC 551
[5] 1980 Supp SCC 92
[6] (1999)3 SCC 134
[7] AIR 2013 Supreme Court 2248
[8] 2000(1)ALD (Crl.)697 (SC)
[9] (2014) 3 SCC 92
[10] (2014)5 SCC 568