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IN THE HIGH COURT OF ALLAHABAD
GIRIDHAR MALAVIYA, J. C. MISHRA
RAM GOPAL - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. MISC. APPLN. 1823 Of 1995
Decided On : 10/12/1998
CRIMINAL PROCEDURE CODE - SECTION 319 - SUMMONING OF ADDITIONAL ACCUSED - EVIDENCE - INTERPRETATION - SCOPE OF SECTION 319 - POWER OF COURT TO SUMMON ADDITIONAL ACCUSED - CONDITIONS PRECEDENT - CROSS-EXAMINATION OF WITNESSES NOT MANDATORY - PURPOSE OF SECTION 319 - DISTINCTION BETWEEN SECTION 319 AND SECTION 204 - RELEVANCE OF EVIDENCE AT THE STAGE OF SUMMONING - SECTION 319 CAN BE INVOKED AT THE STAGE OF INQUIRY - SECTION 319 IS NOT EXHAUSTIVE OF ALL POST-COGNIZANCE SITUATIONS - SECTION 319 DOES NOT EXCLUDE ACCUSED RELEASED UNDER SECTION 169 CR.P.C. - SECTION 319 SHOULD NOT BE CONFUSED WITH SECTION 193 CR.P.C. - SECTION 319 IS NOT BARRED BY THE PRINCIPLE OF ISSUE ESTOPPEL - SCOPE OF SECTION 319 IS WIDE ENOUGH TO INCLUDE CASES INSTITUTED ON PRIVATE COMPLAINT - SECTION 319 PERMITS SUMMONING OF ADDITIONAL ACCUSED ONLY WHEN THEIR INVOLVEMENT IS INDICATED FROM EVIDENCE DURING INQUIRY OR TRIAL - "EVIDENCE" IN SECTION 319 DOES NOT NECESSARILY INCLUDE CROSS-EXAMINATION - SUMMONING OF ADDITIONAL ACCUSED UNDER SECTION 319 DOES NOT CAUSE PREJUDICE AS PROCEEDINGS ARE COMMENCED AFRESH AND WITNESSES ARE RE-HEARD - SECTION 319 IS SIMILAR TO SECTION 204 CR.P.C. IN RESPECT OF SUMMONING OF ACCUSED - CROSS-EXAMINATION OF WITNESSES BY ACCUSED ALREADY FACING TRIAL MAY NOT BE HELPFUL TO PERSONS SUMMONED UNDER SECTION 319 - SECTION 319 CAN BE UTILIZED AT THE STAGE OF INQUIRY, WHICH MAY NOT CONTEMPLATE CROSS-EXAMINATION OF WITNESSES - SUMMONING ORDER PASSED BY SESSION JUDGE ON THE BASIS OF EVIDENCE OF EYE-WITNESSES, EXAMINED DURING TRIAL, IS VALID - COURT IS NOT PRECLUDED TO ASSESS THE VERACITY OF A WITNESS EVEN IN ABSENCE OF CROSS-EXAMINATION - SECTION 319 IS NOT EXHAUSTIVE OF ALL POST-COGNIZANCE SITUATIONS AND CANNOT BE INTERPRETED TO BE REPOSITORY OF ALL POWER FOR SUMMONING SUCH PERSON OR PERSONS TO STAND TRIAL ALONG WITH OTHERS ARRAIGNED BEFORE THE COURT.
Fact of the Case:
In the instant case, the applicants were summoned by the Additional Sessions Judge on the basis of the evidence of a witness whose cross-examination could not be completed. The accused challenged the order of summoning by filing an application under section 482 Cr.P.C. The arguments were heard by Hon'ble S.K. Phaujdar, J., who in view of conflicting decisions referred the controversy to a larger Bench.
Finding of the Court:
The Court held that the term "evidence" as used in Section 319 Cr.P.C. does not mean an evidence complete by cross-examination and the Court can take action under Section 319 Cr.P.C. even on the statement made in examination-in-chief of one or more witnesses.
Issues: Whether a person, who was not an accused in a case, can be summoned under Section 319 of Code of Criminal Procedure on the strength of uncross-examined evidence of a witness/witnesses and without giving opportunity of cross-examination to the accused.
Ratio Decidendi: The Court observed that Section 319 Cr.P.C. permits in an inquiry or trial to proceed against any person along with other accused against which it is proceeding, if from the evidence adduced it appears that such person has committed such offence. This power can be exercised only when the involvement of such person who is not an accused is indicated from the evidence during the course of inquiry or trial and not otherwise.
Final Decision: The Court answered the reference as follows: "the term evidence as used in Section 319, Cr. P. C. does not mean an evidence complete by cross-examination and the Court can take action under Section 319 Cr. P. C. even on the statement made in examination-in-chief of one or more witnesses."
( 1 ) THESE references have been made in the above cases to resolve the conflicting decisions of the Single Benches on the controversy, whether a person, who was not an accused in a case, can be summoned under Section 319 of Code of Criminal Procedure on the strength of uncross-examined evidence of a witness/witnesses and without giving opportunity of cross-examination to the accused. The question formulated in the reference made by Honble S. K. Phaujdar, J. in Criminal Misc. application No. 1823 of 1995 is incorporated below :"whether the term evidence as used in section 319 Cr. P. C. could only mean an evidence complete by cross-examination or if the court can take action under this section even on the statement made in examination-in-chief of one or other witnesses. "
( 2 ) SIMILAR reference was made by Honble C. A. Rahim, J. in Criminal Revision No. 447 of 1997. THE applicants Ram Gopal and Gajadhar in Criminal Misc. Application No. 1823 of 1995 were summoned by Ist Additional Sessions Judge, Agra by order dated 27-3-95 on the basis of evidence of Shri Prasad whose cross-examination could not be completed. The accused challenged the order of summoning by filing application under section 482 Cr. P. C. The arguments were heard by Honble S. K. Phaujdar, J. , who in view of conflicting decisions referred the controversy to larger Bench. IN Criminal Revision No. 447 of 1997 the evidence of Mehndi Hasan (P. W. 2) was recorded by V. Additional Sessions Judge, Etah. After completing examination-in-chief the State Counsel filed an application under section 319 Cr. P. C. The learned Additional Sessions Judge considered the evidence contained in the examination-in-chief of Mehndi Hasan, first information report and case diary, and observed that the revisionists had also committed the offence complained along with six other persons who were facing trial. He, therefore, summoned the revisionists and directed issuance of non-bailable warrants. Felt aggrieved these accused have preferred revision. Honble C. A. Rahim, J. , after hearing the parties referred the controversy to larger Bench.
( 3 ) AS the controversy in the application under section 482 Cr. P. C. and criminal revision is same, both references were heard together and are being answered by this order.
( 4 ) WE have heard Sri V. K. Chaturvedi, the learned counsel for the applicants, Sri Sheonath Singh, learned counsel for the revisionists, Sri Jagdish Tewari, learned A. G. A. and Sri Gopalswarup Chaturvedi, learned senior Advocate also expressed his valuable view on our request.
( 5 ) SECTION 319 Cr. P. C. gives power to the court to add any person not an accused before it as an accused and direct him to be tried along with other accused provided the evidence on record is sufficient to make out a prima facie case against such a person. For convenience section 319 Cr. P. C. is reproduced below :-"319. 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 purposes 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 reheard; (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
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