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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
NARENDRA KUMAR VYAS, J.
Deenbandhu Singh S/o Late Balbhadra Singh – Petitioner
Versus
State of Chhattisgarh – Respondent
Cr. M.P. No. 1958 of 2023
Decided On : 04-01-2024
Section 482 - Criminal Procedure - 319 - The court discussed the provisions of Section 319 of the Code of Criminal Procedure, 1973, which allows the court to proceed against a person not originally accused if evidence suggests their involvement in the offense. The court emphasized the discretionary nature of this power and the need for strong and cogent evidence before exercising it. The judgment of the Hon’ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and Others, 2014 (3) SCC 92 was cited to support the interpretation of the provisions. The court found that the Revisional Court had ignored the well-reasoned order passed by the Judicial Magistrate First Class and had committed illegality and irregularity in setting it aside, thus warranting interference by the court.
Fact of the Case:
The petitioner filed a petition challenging the order of the Revisional Court that quashed the order of the Judicial Magistrate First Class, which had allowed the application to include the respondent as an accused in a criminal case. The case involved an incident where the petitioner and others were accused of assaulting the complainant and his family.
Finding of the Court:
The court found that the Revisional Court had committed illegality and irregularity in setting aside the well-reasoned order passed by the Judicial Magistrate First Class, and therefore, the order of the Revisional Court was set aside, and the order of the Judicial Magistrate First Class was restored.
Issues: The main issue was whether the Revisional Court had committed illegality in setting aside the order passed by the Judicial Magistrate First Class, ignoring the provisions of Section 319 of the Code of Criminal Procedure, 1973.
Ratio Decidendi: The court emphasized the discretionary nature of the power under Section 319 of the Code of Criminal Procedure, 1973, and the need for strong and cogent evidence before exercising it. It found that the Revisional Court had ignored the well-reasoned order passed by the Judicial Magistrate First Class and had committed illegality and irregularity in setting it aside.
Final Decision: The order passed by the Revisional Court was set aside, and the order of the Judicial Magistrate First Class was restored, directing the trial court to proceed with the trial against the respondent in accordance with the law.
ORDER :
1. The petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 16.03.2023 and 28.12.2015 passed by learned 6th Additional Sessions Judge, Durg (C.G.) in Criminal Revision No. 41/2023 (Rajkumar Tiwari @ Raja vs. State of Chhattisgarh) by which the revision petition filed by respondent No. 2 has been allowed and the Revisional Court has quashed the order dated 18.01.2023 passed by Judicial Magistrate First Class, Bhilai-3 in Criminal Case No. 5/2018 (State vs. Tribhuwan Mishra) by which the learned Magistrate has allowed the application filed by the State/prosecution under Section 319 and impleaded respondent No. 2 as accused in the case.
2. Brief facts reflected from the record are that the petitioner lodged FIR before Police Station Purani Bhilai on 18.12.2017 bearing crime No. 441 of 2017 for the offence under Sections 294, 506, 323, 34 IPC against Tribhuwan Mishra, Pushpa, Pawan Mishra and Raja Tiwari alleging that on the date of incident on 18.12.2017 at about 12.30 o’clock they were constructing ladder on the public drain. The complainant has demanded Rs.27,000/- from the accused person as he has supplied juice in the marriage of daughter of Tribhuvan Mishra. On being heard regarding demand of money, respondent No. 2 started abusing and using filthy language in the public place and committed marpit with handd, fists and danda to the complainant. It is also case of the prosecution that when the complainant tried to intervene in the scuffle then Tribhuvan Mishra committed marpit with hands, fists and Pushpa and Pawan committed marpit with his wife and thereafter Tribhuvan Mishra and Rajkumar Tiwari committed marpit with the rod on the head of his daughter, as a result of which blood was oozing from her head, the incident was seen by Sudhir Singh, Dineshram and other public also. On the basis of the complaint, FIR has been registered for commission of offence as aforestated.
3. During investigation statements of the complainants were recorded wherein they have reiterated the same stand which they have taken in the FIR. It has been further contended that while they were returning from the hospital after taking treatment at about 3.30 pm. then Rajkumar Tiwari chased them having rod in his hand. The persons who were standing at the time of incident saved them then only they escaped from there. The complainant’s case was supported by other witnesses namely Shakuntala Singh, Sitanshusingh, Divya Singh and Sudhir Singh whose statements were recorded by the police.
4. On the basis of investigation final report was submitted before the Judicial Magistrate First Class wherein the name of respondent No. 2 Raja Tiwari was not included in the hierarchy of the accused thereafter the prosecution has moved an application under Section 319 Cr.P.C. Learned Judicial Magistrate First Class vide its order dated 18.01.2023 has allowed the said application by recording its finding that Rajkumar Tiwari has also named accused in the FIR and in the statement recorded under Section 161 Cr.P.C. wherein the name of Rajkumar Tiwari was mentioned, as such there is sufficient material to incorporate the name of Rajkumar Tiwari in the FIR as accused. The learned Magistrate while relying upon the judgment of Hon’ble Supreme Court in the case of Anju Chaudhary vs. State of U.P. and Another in Criminal Appeal No. 2039 of 2012 dated 13.12.2012 has allowed the application filed under Section 319 of the Cr.P.C. submitted by the prosecution.
5. Respondent No. 2 being aggrieved with this order has preferred revision petition before the learned Sixth Additional Sessions Judge, Durg which is registered as Revision No. 41/2023, which was allowed by the revisional court. Learned Revisional Court while allowing the revision has recorded its finding as under:
The discretionary nature of the power under Section 319 of the Code of Criminal Procedure, 1973, and the requirement for strong and cogent evidence before exercising it.
Trial commences upon framing charges; powers under Section 319 Cr.P.C. cannot be exercised before evidence is recorded.
The court held that under Section 319 of the Cr.P.C., prior notice to a proposed accused is not required before summoning, provided there is strong prima facie evidence against them.
The power under Section 319 Cr.P.C. is discretionary and should be exercised sparingly based on strong and cogent evidence, and the test for summoning a person is one which is more than prima facie c....
The court emphasized the discretionary and extraordinary nature of the power under Section 319 Cr.P.C., requiring stronger evidence than a prima facie case against the accused and the need for specif....
The discretionary nature of the power under Section 319 CrPC and the requirement of strong and cogent evidence to summon additional accused during trial.
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