1. The petitioners herein are added as additional accused Nos. 15 to 19 consequent upon the order passed by the Sessions Court by allowing the application filed by the Public Prosecutor under Section 319 of Cr.P.C.
2. The fact is, the respondent/Police registered a FIR against ten accused persons, subsequently, charge sheet was filed against 14 accused persons by dropping five accused Nos. 2, 3, 8, 9 and 10 (petitioners herein) cited in the FIR and arraigning nine others. While the complainant was examined as PW-1, during examination-in-chief evidence, he testified against the petitioners herein. At that stage, the learned Public Prosecutor requested the Court to defer the examination-in-chief evidence of CW-1/ PW-1 and file an application under Section 319 of Cr.P.C. alleging that, the I.O. had given up these persons without valid reasons, which has prejudiced the prosecution case leading to injustice to the victims of the incident. On that, summons was ordered to the accused persons. On their appearance, considering their objections, impugned order is passed.
3. Sri. Tomy Sebastian, learned Senior Counsel appearing for the petitioners while taking the court through the prosecution papers submits that, CW-4, who was the scribe of the complaint, is none other than the brother of the complainant. In his further statement recorded on 21
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2.2010, CW-1 had specifically stated to the effect that the petitioners were not involved in the incident. In his previous statement dated 14.2.2010, he had named others, who had indulged in the galata. CWs-2, 3 and 4 are the kith and kin of CW-1. CWs-5 to 23 are the direct eye-witnesses to the incident. None of them had cited these petitioners as offenders. That being so, on 13.10.2015, while CW-1 was in the witness box, he during the course of examination-in-chief evidence testified against petitioners as the offenders. Immediately the Public Prosecutor presented an application under Section 319 of Cr.P.C., which he had already kept prepared and requested the Court to defer the further examination-in-chief of the witness. That by itself would smack that the Public Prosecutor beforehand had anticipated evidence that was going to be adduced by CW-1 during his examination-in-chief evidence. The Apex Court in its judgment, reported in(2014) 3 SCC 92 : (AIR 2014 SC 1400) in the matter of Hardeep Singh v. State of Punjab and othershas dealt in detail the scope and jurisdiction under Section 319 of Cr.P.C. At para-92 it was observed thus:"92. Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination-in-chief and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence."Thus, it is clear that the Trial Court can exercise its power at the stage of completion of examination-in-chief evidence, but not during half way, even before completion of the examination-in-chief evidence.4. At para-85 of the judgment, it was observed thus:"85. In view of the discussion made and the conclusion drawn herein above, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilized only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial."That makes it clear that, the sworn statement of PW-1 before the Court required corroboration and the said corroboration was not available on record for the court to exercise its jurisdiction under Section 319 of Cr.P.C. Wherefore, the order of the Trial Court in allowing the application of the prosecution and arraying them as additional accused persons is illegal and requires interference in this revision petition.5. Sri. Nasrulla Khan, learned HCGP with the assistance of Sri.N.Devhadass, learned Senior Counsel appearing for the defacto complainant/respondent No. 2 submits that, PW-1 had categorically testified about the complicity of these petitioners in the alleged incident. The Trial Court has opined that the statements recorded by the Investigating Officer is to be scrutinized by the court at the time of final adjudication and can be considered after full-fledged trial on merits. Whether the Public Prosecutor had kept the application ready in his file or he prepares the application after the evidence of the witnesses was adduced is of no importance. The only matter for concern is, CW-1 has testified against the accused persons and the Trial Court being convinced about the material against the petitioners procured them as additional accused persons and the evidence of the witnesses can be tested during cross-examination. The order of the court below is legal and does not call for interference.6. With the above submissions and also on perusal of the impugned order, the sole question that would arise for consideration is:"Whether the Trial Court was well within its jurisdiction in arraying the petitioners herein as additional accused persons?"7. The following questions fell for consideration for the Constitutional Bench in a reference case reported inHardeep Singh (AIR 2014 SC 1400)(supra):"Accordingly, the present Bench was required to answer the following questions:(i) What is the stage at which power under Section 319, Cr.P.C. can be exercised?(ii) Whether the word 'evidence' used in Section 319(1), Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?(iii) Whether the word 'evidence' used in Section 319(1), Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial?(iv) What is the nature of the satisfaction required to invoke the power under Section 319, Cr.P.C. to arraign as accused? Whether the power under Section 319(1), Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?(v) Does the power under Section 319, Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"8. The Hon'ble Bench was primarily concerned with the stage at which powers under Section 319 of Cr.P.C. can be invoked; secondly, the material on the basis whereof the invoking of powers under Section 319 Cr.P.C. can be justified and thirdly, the manner in which powers under Section 319 of Cr.P.C. have to be exercised.9. For our benefit suffice it to know that the five Judge Bench of the Apex Court inDharam Pal v. State of Haryana (2014) 3 SCC 306 : (2013 (3) AIR Kar R 718 (SC)wherein it was held that, Section 193 of Cr.P.C. confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it, was approved by the larger Constitutional Bench in the judgment (supra). At para 117.1 it was observed thus:"117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193, Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319, Cr.P.C. becomes available for summoning an additional accused'."10. While elaborating on the word 'evidence' in Section 319 of Cr.P.C., it was observed at paragraph No. 91 thus:"91. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319, Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross-examine the witness(es) prior to passing of an order under Section 319, Cr.P.C., as such a procedure is not contemplated by Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(es) is obliterating the role of persons already facing trial. More-so, Section 299, Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein."11. While answering point for reference No. 2, the ratio of paras-89, 90 and 86 laid down was, once the examination-in-chief is conducted, the statement becomes part of the record. Examination-in-chief untested by cross-examination, undoubtedly in itself is an evidence. Evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence.12. Regarding the degree of satisfaction required for invoking the power under Section 319 of Cr.P.C., on a survey of the previous judgments, at para-90 it was observed thus:"90. As held in Mohd. Shafi and Harbhajan Singh, all that is required for the exercise of the power under Section 319, Cr.P.C. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the Magistrate must come to in order to take cognizance of the offence. Therefore, no straitjacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/courts is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319, Cr.P.C. and can proceed against such other person(s). It is essential to note that the section also uses the words 'such person could be tried' instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section (4) of Section 319, Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of examination-in-chief, the court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, examination-in-chief untested by cross-examination, undoubtedly in itself, is an evidence."13. As per para-116, it is permissible to exercise the power under Section 319 of Cr.P.C. against a person not subjected to investigation, or a person placed in Column 2 of the charge sheet and against whom cognizance had not been taken.14. The satisfaction contemplated under the Section was analysed at para-117.5 thus:"117.5. Though under Section 319(4)(b), Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319, Cr.P.C. would be the same as for framing a charge'. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different'."15. In the light of the above, it is clear that the Sessions Court did no error in invoking its power under Section 319 of Cr.P.C., on the PW-1 testifying against the petitioners herein as the assailants with other accused persons. The prosecutor's demeanour in presenting the application under Section 319 in the midway of examination-in-chief of PW-1 is immaterial though it is possible that before the witness was put into witness box he had smelt the nature of the evidence that is going to be adduced in much improvement to his statement under Section 161, Cr.P.C. Omissions or lapses during investigation shall not choke the course of justice once the court is confronted about the complicity of the accused persons, who conveniently escape the fetter of prosecution. The order impugned is based on the foundation of the sound reasoning, hence, legal and does not call for interference. Revision petition is dismissed.Petition dismissed.
"2017 (3) AIR (Kar) R 762" == "2017 (176) ALLINDCAS 754" == "2017 (5) KantLJ 17,"