Heard Sri Shiv Pal Singh learned counsel for the revisionists and learned AGA for the State.
This criminal revision has been preferred by revisionists challenging the order dated 31.3.2014 by which application under Section 319 Cr.P.C. moved by the informant was partially allowed and revisionists were summoned for facing trial under Section 319 Cr.P.C.
It was submitted by learned counsel for the revisionists that Pravesh Kumar Singh was adopted by late Bachchu Singh and was living with his adoptive father separately from his natural father, mother and brothers. In this way, there was no occasion for the relatives of natural father demanding dowry.
As per factual matrix of the case a first information report was lodged by the opposite party no.2 (Umesh Singh) in Police Station-Kotwali Dehat, District- Bahraich on 6.9.2005 at about 8.15 p.m. against Pravesh Singh, Raja Singh son of Shiv Mangal Singh, Rajesh Singh son of Shiv Mangal Singh, wife of Raja Singh, wife of Shiv Mangal Singh and Rajendra Singh, under Section 498-A,304-B,201 I.P.C.and 3/4 Dowry Prohibition Act. After investigation charge-sheet was submitted against Pravesh Singh only. After taking cognizance, the case was committed and the Sessions Court after framing of the charge recorded evidence. During evidence of P.W.1 Umesh Singh son of Narendra Pal Singh and P.W.2 Narendra Pal Singh son of Harihar Singh and an application was moved for summoning, Raja Singh, Rajesh Singh, Munni Devi, Rajendra Singh, learned court below has after gone though the evidence on record summoned the revisionists except Kaladevi wife of Shiv Mangal, Rajendra to face trial. Feeling aggrieved this criminal revision has been filed.
Learned AGA argued in favour of the impugned order.
7. Section 319 Cr.P.C. as it exists today, is quoted hereunder:
"319 Cr.P.C. - 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 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."
8. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.
It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.?
9. Section 319 Cr.P.C. 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 chargesheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that 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.
10. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded.
11. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.
12. In the case of Hardeep Singh v. State of Punjab and others [2014 (1) SCALE 241] the Apex Court has held that:
"86. Section 319 (1) Cr.P.C. empowers the court to proceed against other persons, who appear to be guilty of offence, though not an accused before the court."
The word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved". It imparts a lesser degree of probability than proof.
88. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two Judges' Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
89. In Rajendra Singh (Supra), the Court observed:
"Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."
90. In Mohd. Shafi (Supra), this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.
91. In Sarabjit Singh & Anr. v. State of Punjab & Anr., AIR 2009 SC 2792, while explaining the scope of Section 319 Cr.P.C., a two Judges' Bench of this Court observed: -
"....For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned......Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied." (Emphasis added)"
92. In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC 1248, a two-Judge Bench of this Court took a similar view observing that the court is 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 re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.
A similar view has been reiterated by this Court in Michael Machado & Anr. v. Central Bureau of Investigation & Ors., AIR 2000 SC 1127.
"99. 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."
A perusal of the evidence reveals that it has been accepted by P.W.1 that Pravesh Singh was adopted by Bachachu Singh. It has also come in evidence that there was demand of motorcycle and Rs.50,000/-only. No other persons was beneficiary of the demand of the motorcycle except Pravesh Singh. These facts should have been considered by the trial Court while passing under Section 319 Cr.P.C.
In view of this, and also considering the fact that Magistrate has not recorded his satisfaction as has been envisaged in the decision of Hardeep Singh v. State of Punjab and others [2014 (1) SCALE 241], this criminal revision is liable to be allowed and is hereby allowed. Order dated 31.3.2014 is quashed.
The matter is remanded back to the trial court for deciding the application under Section 319 of the Code of Criminal Procedure afresh in the light of the observations made above.
Order Date :- 21.4.2014 Subodh/-