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Gurlabh Singh Majithia v. State Of U.P.
Judgment Summary — N. B. Asthana, J.
Factual and Procedural Background
This revision challenges an order dated 19-4-1984 passed by the IV Additional Sessions Judge, Gorakhpur, in Sessions Trial No. 579 of 1987 (registered under Sections 147, 148, 302/149, I.P.C., P.S. Chaurichaura, Gorakhpur), whereby the trial court summoned the revisionists under Section 319(1) of the Criminal Procedure Code (Cr. P. C.).
The factual basis recorded in the trial court and before this Court is that the first informant, both in the F.I.R. and in his statement under Section 161, Cr. P. C., stated that at the exhortation of the two revisionists the co-accused inflicted injuries which caused the death of Ram Narain. On the basis of this evidence, the trial court concluded that the offence appeared to have been committed at the exhortation of the two revisionists and summoned them under Section 319(1), Cr. P. C. The revisionists are aggrieved by that order and sought revision.
Legal Issues Presented
- Whether persons who were named as accused in the F.I.R. but who were not proceeded against by the police or committing court can be summoned by the trial court under Section 319(1) Cr. P. C. in the course of trial.
- Whether the court may summon persons under Section 319(1) on the basis of evidence recorded (including examination-in-chief) before the court, and whether "complete evidence" (including cross-examination) is required at the stage of issuing summons under Section 319.
- Whether precedent(s) such as Sahan Lal v. State of Rajasthan restrict the operation of Section 319 in situations where persons have earlier been arrayed as accused or discharged.
Arguments of the Parties
Revisionists' Arguments
- The revisionists contended that they were cited in the F.I.R. as accused, and because the Investigating Officer did not submit any charge-sheet against them and the committing court did not take action against them, they could not be summoned under Section 319(1), Cr. P. C.
- They argued that Section 319 applies only to "any person not being the accused" and therefore excludes persons who have been named as accused in the F.I.R.
- Reliance was placed on Sahan Lal v. State of Rajasthan (AIR 1990 SC 2158) as authority for the proposition that Section 319 is not applicable to persons who were previously the accused before the court (particularly where they were discharged after being tried or after cognizance was taken).
- Relying on Sannarevanappa Bharamajappa Kalal (1991 Cr. L. J. 21), it was argued that mere examination-in-chief of a witness (without subsequent cross-examination) does not constitute complete evidence upon which the court can take cognizance under Section 319; therefore, the court should not act on such incomplete evidence to summon persons under Section 319.
- R. N. Bhatt v. State (1986 A. Cr. R. 44) was also relied upon to assert that the evidence which justifies summoning under Section 319 must be evidence obtained during the course of the trial and that certain judicial constraints apply to when such an order can be passed.
Respondent's / State's Arguments
The opinion does not contain a detailed account of the State's oral submissions before this Court; however, the Court considered Supreme Court precedents cited by both sides in resolving the legal questions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sahan Lal v. State of Rajasthan, AIR 1990 SC 2158 | Held that the words "any person not being the accused" in Section 319 must be read in consonance with provisions relating to accused/discharged persons; where a person has been an accused and then discharged after cognizance, Section 319 may not apply to resurrect prosecution against such a person. | The Court distinguished this authority: in Sahan Lal appellants had been tried/charged and discharged by magistrate; here nothing on record showed the revisionists had been accused before the court and discharged, so Sahan Lal did not assist the revisionists. |
| Joginder Singh v. State of Punjab, AIR 1979 SC 339 | Held that "any person not being the accused" covers any person not already tried by the court, and includes persons dropped by the police during investigation when evidence of their involvement emerges during trial. | The Court relied on this principle to support the proposition that persons not being tried before the court (even though earlier dropped by police) can be summoned under Section 319 if evidence before the court indicates their involvement. |
| Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, AIR 1983 SC 67 (also cited as 1963 Cr LJ 159) | Under relevant statute, the Court held that if prosecution can at any stage produce evidence satisfying the court that other persons (not originally arrayed as accused or against whom proceedings were quashed) have committed the offence, the court can take cognizance against them and try them along with other accused. | The Court read this authority as supporting the trial court's power to summon persons under Section 319 where evidence before the court indicates involvement of others; it was held to justify the order below rather than assist the revisionists. |
| Sannarevanappa Bharamajappa Kalal @ Kuncharkar and others v. State of Karnataka, 1991 Cr. L. J. 21 | Addressed the proposition that mere evidence from an examination-in-chief (without cross-examination) may not constitute "complete evidence" and that a court cannot take cognizance on such incomplete evidence. | The Court considered this submission and concluded that Section 319 speaks of "evidence" generally; evidence recorded in the absence of persons later summoned is not admissible against them, but the fact that examination-in-chief exists does not preclude the court from summoning a person — cross-examination can occur once the person is summoned. Thus the purported requirement of "complete evidence" was rejected for the purpose of Section 319. |
| R. N. Bhatt v. State, 1986 A. Cr. R. 44 | Stated that the order summoning a person must be passed during the course of the trial/inquiry and that it must appear from evidence obtained during the trial that some person not present before the court has committed an offence; the evidence must be adduced before the court during trial. | The Court observed this authority but held it did not assist the revisionists' position; the Court interpreted it to mean some evidence adduced during trial suffices and complete evidence is not a precondition to summon under Section 319. |
Court's Reasoning and Analysis
The Court began by reproducing Section 319(1) Cr. P. C. which authorizes a court, on the basis of evidence in the course of an inquiry or trial, to proceed against any person not being the accused who appears to have committed an offence which could be tried together with the accused.
The Court analysed the revisionists' primary contention that persons named in the F.I.R. as accused could not be summoned under Section 319 because the expression "any person not being the accused" excludes those who were earlier accused. The Court considered Sahan Lal and noted that the crucial factor in that authority was that the persons had been accused before the court and had been discharged after cognizance and trial-stage proceedings; that factual matrix distinguished Sahan Lal from the present case because there was nothing on record here to show that the revisionists had been accused before the court and discharged or were otherwise proceeded against prior to being summoned under Section 319.
Turning to Joginder Singh and Municipal Corporation of Delhi, the Court accepted the principles that Section 319 covers any person who has not already been tried by the court, and that if the prosecution produces evidence during trial showing involvement of other persons (including those dropped by police or those against whom proceedings were quashed), the court may take cognizance and try them along with the accused. The Court viewed these precedents as supporting the trial court's power to summon persons under Section 319 where prima facie evidence links them to the offence.
The Court addressed the contention (based on Sannarevanappa) that evidence in the form of an examination-in-chief, without cross-examination, cannot support taking cognizance under Section 319. The Court observed that Section 319 refers to "evidence" and not to "complete evidence," and emphasised that persons summoned under Section 319 will be entitled to have an opportunity to cross-examine witnesses once they are summoned. Evidence recorded in the absence of such summoned persons would not be admissible against them, but the existence of examination-in-chief does not preclude the court from summoning them so that they may thereafter participate in the trial and cross-examine the witnesses.
The Court also reviewed R. N. Bhatt, noting it emphasises that the power under Section 319 must be exercised during the course of trial when evidence adduced before the court points to involvement of other persons. The Court interpreted this as meaning that some evidence adduced during trial suffices to justify summons under Section 319; there is no requirement for a notionally "complete" evidence record before the court can act.
Applying these principles to the facts, the Court found that the first informant's consistent statements in the F.I.R., in his Section 161 statement, and in his statement before the trial court connected the revisionists to the crime by exhortation. On that factual matrix, the trial court's conclusion that there was prima facie evidence showing that the two revisionists appeared to have committed an offence triable together with the accused was legally sustainable.
Holding and Implications
Holding: The revision is dismissed; the order of the trial court summoning the revisionists under Section 319, Cr. P. C. is affirmed. The stay order granted on 16-1-1989 is vacated. Petition dismissed.
Implications:
- The trial court's summons of the revisionists under Section 319(1) Cr. P. C. was held to be within the statutory ambit and legally and factually justified on the material before that court (consistent statements of the first informant linking the revisionists to the offence).
- The Court rejected the submission that being named in the F.I.R. as accused, without more, places a person beyond the reach of Section 319; rather, Section 319 applies to persons not already tried by the court and may include persons earlier dropped by the police if evidence before the court establishes a prima facie case against them.
- The decision is an affirmation of the trial court's exercise of power under Section 319 on the facts; the opinion does not purport to lay down any new, broader precedent beyond the application of existing authorities to the case's facts. The direct effect is to restore the trial court's order and permit the summoned persons to be proceeded against in the trial court.
End of summary based exclusively on the provided opinion.
N. B Asthana, J.-
This revision has been directed against the order( dated 19-4-1984 passed by the then IV Addl. Sessions Judge, Gorakhpur in Sessions Trial No. 579 of 1987 under Sections 147, 148, 302/149, I P.C., P. S. Chaurichaura, Gorakhpur, summoning the revisionists under Section 319 of Cr. P. C.
2. From the record it appears that the first informant in his statement before the trial Court stated that at the exhortation of the two revisionists the co-accused inflicted injuries causing the death of Ram Narain. In the F.I.R. also the first informant had made this allegation. From the order of trial Court it further appears that the same statement was given by him under Section 161, Cr. P. C. The statement of the first informant is consistent in the F. I. R. in statement under Section 161, Cr. P. C. and in the statement made before the trial Court. The trial court was of the opinion that the offence appears to have been committed at the exhortation of the two revisionists and therefore summoned them under Section 319 (1) of Cr. P. C. Aggrieved by it they have filed this revision.
3. I have beard the learned counsel for the revisionists and the learned A. G. A.
4. Section 319 (1) of Cr. P. C. says that
"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."The argument is that the two revisionist were cited in the F. I. R. as accused, the Investigating Officer did not submit any charge-sheet against them that the committing court did not take any action against them and since they were the accused in the case they could not have been summoned under Section 319 (1) of Cr. P. C. The contention is that only those persons could be summoned under this provision who were not accused and since the revisionists were named in the F. I. R. as accused, they could not have been summoned under Section 319(1), Cr. P. C. Reliance in this connection has been placed upon Sahan Lal v. State of Rajasthan, AIR 1990 SC 2158, in which it was held that the provisions of Section 319 have to be read in consonance with the provisions of section 398. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provision, of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 393 may not be lost sight of. Once a person was an accused in the case he would be out of reach of Section 319. The crucial words in Section 319 are any person not being the accused.' In that case appellants 4 and 5 were discharged vide order, dated 3-10-1980 passed by Judicial Magistrate, Bikaner after taking cognizance and after hearing the arguments. The Magistrate after recording evidence and on the basis of the application moved by A.P.P. summoned the discharged accused under Section 319, Cr. P. C. In these circumstances the Supreme Court held that the provisions of Section 319, Cr. P. C. were not applicable. It is not the case. There is nothing on record to show that appellants were accused before the court and were discharged or not proceeded with the injury. It cannot, therefore, be said that the above ruling would help the revisionists in any way.
5. Joginder Singh v. State of Punjab, AIR 1979 SC 339 is an authority for the proposition that expression "any person not being the accused clearly covers any person who is not being already tried by the Court. A criminal complaint was registered against five persons including the two appellants. The police having found that the two appellants were innocent charge-sheeted the remaining three persons and they were committed to trial. At the trial evidence having shown the appellants involvement in the crime the prosecution moved an application that they be tried along with three accused and the Sessions Judge directed the appellants to stand trial together with other accused. Their revision application in the High Court was dismissed. In their appeal in the Supreme Court it was inter alia submitted that Section 319, Cr. P. C. was inapplicable to the facts of this case because the phrase "any person not being the accused" occurring in the section excluded from its operation an accused who had been released by the police. The Supreme Court rejected the contention holding that the said expression clearly covered any person who has not already been tried by the court and the very purpose of enacting such a provision like Section 319 clearly showed that oven a person who had been dropped by the police during investigation but against whom evidence showing his involvement in the offence came before the criminal court were included in the said expression.
6. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, AIR 1983 SC 67, under the Food Adulteration Act, the respondent No. 1 was Manager of the Company and the respondent Nos. 2 to 5 were the Directors of the Company including the Company. The High Court quashed the proceedings against the Directors as also against the Manager. The Supreme Court set aside a part of the judgment of the High Court which quashed the proceedings against the Manager, respondent No. 1. It was held that
"In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused."
7. From the above two rulings of the Supreme Court it is clear that a criminal court can summon the accused under Section 319, Cr. P. C. who is not an accused before it irrespective of the fact whether the proceeding against him have been quashed earlier or not, in case it comes to the conclusion that the offence makes out a prima facie case against him. The argument, therefore, that once a person has been arrayed as an accused in the F. I. R. he cannot be summoned under Section 319, Cr. P. C. is an argument devoid of any substance.
8. Placing reliance upon Sannarevanappa Bharamajappa Kalal @ Knn-charkar and others v. State of Karnataka, 1991 Cr. L. J. 21, it was argued that the court can |take cognizance of offences against persons other than accused on the basis of evidence of witness before it. Mere evidence of witness in examination-in-chief does not constitute evidence and the court cannot take cognizance on the basis of it. Unless the witness is cross-examined it cannot be said that there is complete evidence as contemplated under Section 319, Cr. P. C. By analogy it may be stated that if the witness does not submit to cross-examination after he is examined-in-chief, the court would be precluded from acting on such incomplete evidence against the accused persons only from the examination-in-chief." At the stage the order under Section 319, Cr. P. C. is passed, the persons who appeared to have committed the offence are not before the court. Whether the examination-in-chief of such witness is recorded or his cross-examination is also recorded would be immaterial for the purpose of the persons who are summoned under Section 319, Cr. P. C. because even the examination-in-chief of such witness has to be recorded after such persons have been summoned and they have to he given an opportunity to cross-examine, such witness. The evidence recorded in the absence of such persons would not be admissible against the persons summoned by the court and, therefore, whether as the examination-in-chief has been recorded or the cross-examination is recorded would make no difference. Section 319 speaks of evidence and not of complete evidence.
It may be noticed that evidence is evidence. The Evidence Act does not speak of complete evidence or incomplete evidence.
9. In R. N. Bhatt v. Stale, 1986 A. Cr. R. 44, relied upon by the revisionist it was held that
"The order summoning a person before the Court can, therefore, be passed only during the course of the trial by the Sessions Judge and during the course of the inquiry proceeding by a Magistrate, which will mean that before the inquiry or trial no such order can be passed. Another requirement of the law it should appear from the evidence obtained during the course of the trial that some person other than one who is present before the Court, has committed an offence. The expression 'evidence', when it is read in the context of the words of the section and in the light of sub-section (4), can only mean that the evidence should be the one which is adduced before the court during the trial. If after the trial has already commenced, the court obtains some evidence on record to the effect that some person other than one who is before the court, is also concerned with the commission of the offence, which the court is trying, then the court can summon that other person also."From this ruling it would appear that complete evidence is not required to be recorded in the case whatever complete evidence may mean. If there is some evidence on the record which is adduced before the trial court during trial, the court is competent to summon such persons in exercise of powers under Section 319 Cr. P. C.
10. I have carefully perused the above ruling. It does not help the revisionists in any way.
11. Reliance has also been placed upon Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1963 Cr LJ 159. This ruling has already been discussed above. It does not help the revisionists in any way. On the other hand this ruling would justify the order passed by the court below.
12. In view of the discussion made above it is clear that the order passed by the court below is within the ambit of Section 319, Cr. P. C. The trial court was legally and on the basis of the evidence placed before it factually correct in summoning the revisionists under Section 319, Cr. P. C.
13. The revision is devoid of any force and is dismissed. The stay order granted on 16-1-1989 is vacated.
Petition dismissed.
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