This criminal revision has been preferred against the judgement and order dated 14.03.2016, passed by Additional Sessions Judge, Court No. 4, Kasganj in S.T. No. 30 of 2015 (State of U.P. Vs. Tahir @ Badshah & others) arising out of Case Crime No. 288 of 2014, under Sections 147, 148, 149, 452, 307, 504 and 506 of I.P.C. and 7 Criminal Law Amendment Act, Police Station-Ganj Dundwara, District-Kasganj, whereby the learned Judge has rejected the application of the revisionist under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') for summoning opposite party nos.2 as an accused to face the trial, which is under challenge in this revision.
The important and relevant facts are stated herein below:-
The complainant moved an application under Section 319 Cr.P.C. alleging that on 2.11.2014 at about 1.30 PM accused Tahir @ Badshah, Mohd. Qmar, Arif, Shamshul, Mohd. Gaffar, Aurangjeb, Ishak, Yusuf and Mohd. Zafar with a common intention assaulted Kasheem, Kaleem, Hasnain and Shana and with an intent to kill open fire resulting death of Kasheem. All the accused were named in the F.I.R. but conniving with the police the charge sheet has not been submitted against the accused Shamshul.
During trial PW1 complainant was examined and tendered his evidence to the extent that accused Shamshul also participated in the commission of the crime and physically involved and his complicity in the commission of the crime is established. The accused Shamshul also participated in the assault and on his exhortation accused Kasheem was murdered. The application under Section 319 Cr.P.C. has been illegally rejected.
Learned counsel for the revisionist submitted that the impugned order dated 14.3.2016 is against the weigh of evidence on record. Testimony of complainant PW1 fully support the prosecution version. Opposite party no. 2 is named in the F.I.R. The eye witnesses statement recorded under Section 161 Cr.P.C. support the prosecution version. The learned judge relying upon plea of alibi of opposite party no. 2 has rejected the application under Section 319 Cr.P.C. which is against the established provisions of the law. Hence, the impugned order is liable to be set aside.
Per contra the learned counsel for the opposite party contended that neither there is illegality nor any perversity in the impugned order. The statement tendered by the PW1 complainant had not been cross-examined. The other prosecution witnesses had not been examined. There is material contradictions in the statement of PW1 complainant recorded under Section 161 of the Cr.P.C. Hence, this revision lacks merit and is liable to be dismissed.
I have heard learned counsel for the parties, it is not disputed that the materials collected under Section 161 Cr.P.C. and the plea of alibi of the accused Shamshul, the Investigating Officer on relying the materials of the alibi exonerated the Shamshul and the charge sheet has not been filed against him. The impugned order also reveals that on the date of incident the accused Shamshul was admitted to the Siddharth Hospital, Badodara and relying on the medical evidence collected during the investigation under Section 161 of Cr.P.C. the learned trial court rejected the application under Section 319 of Cr.P.C. filed by the revisionist. The crux point which is to be considered under this revision is whether the defence of alibi and the material collected during investigation can be the basis of rejection of the application under Section 319 Cr.P.C.
For a ready reference Section 319 Cr.P.C. is reporduced hereinunder :-
"319 Cr.P.C.- Power to proceed against other persons 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."
Prima facie, a perusal of the impugned order shows that the learned trial judge has relied on the material statements under Sections 161 Cr.P.C. ignoring the preposition of law as held by the Hon'ble Apex Court in the case of Hardeep Singh & others Vs. State of Punjab and others, (2014) 3 SCC Page 92 that the material statements collected during investigation are not to be considered at the time of disposal of application under Section 319 Cr.P.C.
In Hardeep Singh (supra), the Hon'ble Apex Court has elaborately explained the scope and extent of the powers of the courts under the criminal justice system to arraign any person as an accused during the course of inquiry or trial as contemplated under Section 319 of Cr.P.C.
The Hon'ble Apex Court has also held that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The ''evidence' is thus, limited to the evidence recorded during trial.
The Hon'ble Apex Court has held that Section 319 Cr.P.C. can be exercised at the stage of completion of examination- in-chief and court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.
As I have already observed that the impugned order is mainly based on the medical materials collected during the investigation at the stage of 161 Cr.P.C. and the plea of alibi has been accepted while passing the impugned order. It is important to note that the application under Section 319 Cr.P.C. is to be decided on the basis of the evidence recorded during trial and any additional evidence is only be taken for the corroboration purposes. So far as with regard to the submissions raised by the opposite party that entire evidence has not been recorded and PW1 has not been cross-examined, this argument has got no substance because the Hon'ble Apex Court in case of Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 has held that :-
"It is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."
On the basis of the aforesaid reasons I found force in the arguments advanced by the learned counsel for the revisionist that the impugned order is based on the materials collected during the investigation by the IO. The statement of PW1 complainant recorded during trial has not been evaluated in the legal prospective.
Keeping all the facts and circumstances stated above and the legal preposition mentioned above the impugned judgement and order dated 14.3.2016 is not sustainable in the eye of law. The impugned judgement and order dated 14.3.2016 is set aside with a direction that the application under Section 319 Cr.P.C. be decided afresh after affording an opportunity of hearing to the parties and as per law laiddown in Hardeep Singh (Supra).
Accordingly, this revision is allowed subject to the observations made hereinabove.
Let a certified copy of the judgement be transmitted to the court concerned for compliance.
Order Date :- 25.11.2016 AKT