IMPORTANT POINT
While exercising power u/s 319 Cr.P.C. Court has to analyse the evidence examined before it during trial and should not give primacy to the conclusions reached by Investigating Officer during investigation.

Headnote:Criminal Procedure Code, 1973 — Section 319 — Jurisdiction of trial Court to add any person not being accused before it to face trial with other accused persons — Power is discretionary and discretion must be exercised judicially — It is extraordinary power and should be used very sparingly and only if compelling reasons existed — Expression “evidence” contemplates evidence of witnesses given in Court — Respondents were name as accused by complainant-informant in murder case in F.I.R. — They were not charge-sheeted with other accused as their plea of alibi was accepted by Investigating Officer — PW1 during trial named respondents with other accused as assailants of deceased — Application by prosecution to summon respondents also as accused was dismissed by trial Court on ground that plea of alibi raised by respondents was investigated and found acceptable — High Court found no infirmity in the order — Appeal — High Court had not found evidence of PW1 to be unworthy of acceptance — Conclusion that IO’s satisfaction should be given primacy was unsustainable — Impugned order was liable to be set aside and trial Court to proceed against respondents.
       Held : There is a basic fallacy in the approach of the High Court. It called for the file to be satisfied as to whether the enquiry conducted was to be preferred to the evidence of PW-1. If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated. Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the Code it was required to be analysed. The conclusion that the IO’s satisfaction should be given primacy is unsustainable. (Para 8)
       Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. (Para 13)
       The conclusion of the High Court after calling for the records from the Investigating Officer to satisfy itself and deciding whether version of PW-1 was to be accepted or not is a very unusual procedure adopted. (Para 15)
       In the result, the High Court’s order is clearly indefensible and is set aside. The trial Court shall take steps for proceeding against the respondents in terms of Section 319 of the Code. We make it clear that by allowing this appeal we are not expressing any opinion on the merits of the case. (Para 16)

JUDGMENT

Dr. Arijit Pasayat, J. — Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Andhra Pradesh High Court dismissing the revision petitions filed by the appellant and the State questioning the correctness of the order passed by the learned VIth Additional Sessions Judge, Gooty, (Fast Track Court), Gooty.

3. Background facts as projected by the appellant in a nutshell are as follows:

4. On 26.07.1997 at about 6 p.m., while Yeddula Siva Prasad Reddy (hereinafter referred to as the ‘deceased’) was coming on a motorbike, accused persons armed with deadly weapons, attacked and killed him. Appellant who was examined as P.W.1 lodged complaint with the police and investigation was taken up. On an application made by the respondents in Crl.R.C.No.1551 of 2004, the Superintendent of Police, Anantapur District got the matter investigated by the Deputy Superintendent of Police, Guntakal and on the basis of his report, names of the present respondents were deleted from the array of accused. They were not included in the charge sheet filed on 07.11.1997. Thereafter, the case was committed to Sessions Court on 10.11.1997 and numbered as S.C.No.378 of 1998. There was delay in progress of the trial. P.W.1 was examined on 7.7.2004. Thereafter, a petition in terms of Section 319 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) was filed for arraying the present respondents as accused. The learned Sessions Judge dismissed the petition by order, giving a somewhat conclusive finding that the present respondents have not participated in the offence.

5. The trial Court rejected the application made in terms of Section 319 of the Code primarily on the ground that the plea of alibi raised by the respondent was investigated by the Deputy Superintendent of Police under the instructions of the Superintendent of Police and on his satisfying about the substance in the plea of accused about their non-involvement. directed the omission of their names. Though their names were deleted from the array of accused their names were found in the FIR and statement of witnesses. Assailing the same, firstly the State filed Crl.R.C.No.1476 of 2004 and thereafter appellant (PW-1 the de facto complainant) filed Crl.R.C. No.1551 of 2004 before the High Court. The High Court found no infirmity in the trial Court’s order and additionally found that the charge sheet was filed on 7.11.1997. Neither the public prosecutor nor the appellant took any steps immediately. Only on 7.7.2004 an application was filed. The High Court found that first of all the appellant and the public prosecutor should not have kept quiet for such a long period of about 7 years. The fact that they kept silent for such a long period, according to High Court, shows that the plea of alibi which was found to be true by the Special Investigating Officer who enquired into that aspect was true. The High Court also accepted that there was force in the contention that on account of political factions the respondents were falsely implicated and on account of change of government, the public prosecutor had filed the petition. Since the Deputy Superintendent of Police had found the plea of alibi to be correct, the fact that the witnesses during trial stated otherwise was really of no consequence.

6. In support of the appeal, learned counsel for the appellant submitted that the orders of the trial Court as well as that of the High Court cannot be maintained. The alleged occurrence took place on 26.7.1997. The charge sheet was filed on 7.11.1997 and charges were framed on 25.8.2003. The delay in framing of charges cannot in any way be attributed to the complainant. PW-1 was examined on 7.7.2004 and immediately after his evidence was recorded, the application in terms of Section 319 of the Code was filed. There was, therefore, no scope for the High Court to hold that there was delay in making the application. Before the charges were framed there was no sc

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2007 Supreme(SC) 664

IMPORTANT POINTWhile exercising power u/s 319 Cr.P.C. Court has to analyse the evidence examined before it during trial and should not give primacy to the conclusions reached by Investigating Officer during investigation.

Cases Referred (3)

IMPORTANT POINT
While exercising power u/s 319 Cr.P.C. Court has to analyse the evidence examined before it during trial and should not give primacy to the conclusions reached by Investigating Officer during investigation.