IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN,

JAIPUR BENCH, JAIPUR.

JUDGMENT
Hardev Vs. State of Rajasthan
(S. B. Criminal Revision Petition No.1396/2009)
S. B. Criminal Revision Petition under Section 397 read
with 401 Cr.P.C. against the order dated 4-9-2009
passed by Additional Sessions Judge, (Fast Track
No.2) Bharatpur in Sessions Case No.29/2009 whereby
the learned Judge has issued process against the
petitioner under section 319 Cr.P.C..
Date of Judgment: March 31st, 2010
PRESENT
Hon'ble Mr. Justice R. S. Chauhan
Mr. D.G. Chaturvedi, for the petitioner.
Mr. Javed Chaudhary, Public Prosecutor for the State.
Mr. Biri singh, for the complainant.
BY THE COURT:
REPORTABLE
Aggrieved by the order dated 4-9-2009, passed by the learned
Additional Sessions Judge, Fast Track No.2, Bharatpur, whereby the
learned Judge has accepted the application under Section 319
Cr.P.C. and issued process against the petitioner, the petitioner has
challenged the same before this Court.
2. Brief facts of the case are that on 24-12-2008 on the basis of
parcha bayan of Lakhan Singh, a FIR, FIR No.521/2008, was
registered at Police Station Nadbai, District Bharatpur for the
offences under Sections 147, 148, 149, 341, 323, and 307 IPC.
However, after the death of Lakhan Singh, on the same day, offence
under Section 302 IPC was added. After investigation, a chargesheet
was submitted against four persons namely, Chatar Singh, Pooran
Singh, Jaideo Singh, and Narendra Singh by the police. Investigation
against the present petitioner was kept pending under Section 173
(8) Cr.P.C. During the course of trial, the learned trial Judge recorded
testimony of seven witnesses, P.W.1 to P.W.7. During the course of
trial, Sheodan Singh, the complainant, submitted an application under
Section 319 Cr.P.C., wherein he claimed that sufficient evidence has
come on record during trial to make out a strong case against the
present petitioner for his involvement in the alleged offence. Vide
order dated 4-9-2009, the learned trial Judge proceeded against the
petitioner. Hence, this petition before this Court.
3. Mr. Chaturvedi, the learned counsel for the petitioner has raised
various contentions: firstly, the FIR cannot be registered on the basis
of statement recorded under Section 161 Cr.P.C.
Secondly, the statement of Lakhan Singh, recorded under
Section 161 Cr.P.C. is suspect, as the statement was merely
recorded 45 minutes prior to his death. The said statement cannot be
treated as “a dying declaration”. Therefore, it could not be used for
invoking power under section 319 Cr.P.C.
Thirdly, the learned trial Judge has erred in concluding that the
deceased was in a position to give statement. According to learned
counsel, the deceased was not in a position to give statement, as the
dying declaration was recorded just prior to his death.
Fourthly, despite the existence of parcha bayan in the
chargesheet, the trial court did not take cognizance against the
petitioner. Hence, from the very beginning the trial court was
convinced that no case is made out against the petitioner. Therefore,
the trial court cannot invoke its power under Section 319 Cr.P.C. at a
later stage.
Fifthly, the trial court should have examined the genuineness of
the dying declaration prior to invoking its power under Section 319
Cr.P.C.
Sixthly, but for the dying declaration, no fresh evidence has
come into existence. Therefore, the power under Section 319 Cr.P.C.
has been invoked illegally.
Lastly, since power under Section 319 Cr.P.C. is a vast one, it
should be exercised sparingly. In fact, the said power should not
have been exercised until and unless all evidence was recorded and
trial was completed.
4. On the other hand, Mr. Biri Singh, the learned counsel for the
complainant, has contended that there is no bar in law for registering
a FIR on the basis of statement recorded under section 161 Cr.P.C.
In fact, once a statement reveals the commission of a cognizable
offence, by known or unknown person, the police is legally bound to
register a FIR. Since the statement given by Lakhan Singh revealed
commission of cognizable offences by known persons, the police was
justified in registering a FIR against all the five persons. Moreover, in
his statement itself Lakhan Singh had claimed that the present
petitioner, Hardev, was riding a motor cycle, and he along with other
co-accused persons surrounded him and assaulted him with “Saria”
(iron rods). Consequently, his hands and feet were broken.
Subsequently, due to the said injuries, Lakhan Singh died. Thus, the
statement of Lakhan Singh not only revealed the commission of
cognizable offences, but also revealed the names of the culprits, and
also informed the police about the weapon used for the commission
of crime. Since sufficient information existed, the said statement can
be used and should have been used for registering a FIR.
Secondly, the statement of Lakhan Singh can be treated as
dying declaration, for it reveals the cause of his death. Moreso, it
discloses the name of culprits, who have caused his death. Thus, the
statement does fall under section 32 (1) of the Evidence Act, which
deals with dying declaration. Therefore, the learned trial court is
justified in treating the statement as dying declaration.
Thirdly, the veracity or validity of the dying declaration can be
adjudged only during the course of trial. At the moment of proceeding
against the accused under section 319 Cr.P.C., the trial court is not
required to first test the veracity or validity of the dying declaration.
Fourthly, the police had not submitted the chargesheet against
the present petitioner. In fact, the police had kept the investigation
pending against the present petitioner. Therefore, the learned
counsel for the petitioner is not justified in claiming that despite the
submission of chargesheet, despite the existence of dying
declaration, the trial court did not take cognizance against the
present petitioner.
Fifthly, once the evidence had started, tricking in, once it was
noticed by the court that the deceased had named the petitioner in
the dying declaration, a strong prima facie case did exist for the court
to proceed against the petitioner.
Lastly, criminal justice system is meant not only for acquitting
the innocent person, but most importantly for punishing the
perpetrator of crime. Considering the fact that a murder had been
committed, considering the fact that the petitioner was alleged to be
one of the perpetrators of the crime, the power under Section 319
Cr.P.C. has rightly been invoked in order to put the petitioner on trial.
Hence, the learned Public Prosecutor, and the learned counsel for
the complainant have supported the impugned order.
5. Heard the learned counsel for the parties, considered the
material available on record, and examined the impugned order.
6. Section 319 Cr.P.C. reads as under:-
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 purpose 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
witnesses re-heard;
(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 the offence
upon which the inquiry or trial was
commenced.”
In Annamma Cherian Vs. State of Karala [1990 Cr.L.J.
1796] Kerala High Court (Hon'ble K.G. Balakrishnan J. as His
Lordship then was) had occasion to analyse Section 319 Cr.P.C. It
was observed as under:-
(Para 4)
“Section 319 says that if in the course of inquiry into, or
trial of, an offence, it appears from the evidence that any
person other than the accused who are already on party
array 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. Sub-sec.(2) of S.319 further says that if
such person is not attending the court the Court may
arrest him and summon him for the purpose of proceeding
against him. Sub-sec.(3) of S.319 empowers the Court to
detain such person for the purpose of any inquiry or trial of
the offence which he appears to have committed. Subsec.
4(1)(a) of S.319 says that proceedings in respect of
the person who is newly added as the accused shall be
commenced afresh and the witnesses be re-heard. Subsec.
4(1)(b) of S.319 raises a legal fiction that the case
may proceed against the newly added accused as if such
person had been an accused when the Court took
cognizance of the offence upon which the inquiry or trial
was commenced.”
In Guriya @ Tabassum Tauquir Vs. State of Bihar [J.T.
2007 (11) SC 438] the Apex Court had occasion to analyze Section
319 Cr.P.C. and it was observed as under:-
“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 and 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 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.”
Section 319 CrPC was also subject matter in Y.Saraba
Reddy Vs. Puthur Rami Reddu [J.T. 2007(6) SC 460] and the Apex
Court propounded as follows:-
(Para 12)
“The trial court has undoubted jurisdiction to add any
person not being the accused before it to face the trial
along with other accused persons, if the court is satisfied
at any stage of the proceedings on the evidence adduced
that the persons who have not been arrayed as accused
should face the trial. It is further evident that such person
even though had initially been named in the FIR as an
accused, but not charge sheeted, can also be added to
face the trial. The trial court can take such a step to add
such persons as accused only on the basis of evidence
adduced before it and not on the basis of material
available in the charge sheet or the case diary, because
such materials contained in the charge sheet or the case
diary do not constitute evidence.”
(Emphasis Supplied)
A bare look at Section 319 Cr.P.C. reveals that it empowers a
court to summon a person if from the evidence produced before the
court, it appears that a person has committed an offence, and if the
said person has not been charge sheeted by the investigating
agency.
7. Undoubtedly, the power under Section 319 Cr.P.C. is vast one.
Although vast power should be exercised sparingly, but while
exercising the power, the trial court should be aware of the very
purpose for which the courts have been established. Although every
person is presumed to be innocent, but it is the duty of the trial court
to adjudge the innocence or the guilt of the person. In grave offences,
in case there is sufficient evidence to indicate or to point towards the
involvement of a person, who has not been chargesheeted by the
police, ordinarily the court should proceed against him. The guilt and
involvement of a person in grave offences should not be overlooked
on the basis of hyper-technicalities and should not be ignored by
myopic vision. For, the purpose of criminal justice system is to protect
the society from those persons who violate the law and who pose a
threat to the society at large. The protection of the society from
offenders is foundation, or raison d'etre (reason to be) of the criminal
courts. Therefore, if there is sufficient evidence against a person, the
trial court would be justified in proceeding against such a person.
8. Criminal Justice System has been considered by the Apex
Court in the case of Rajendra Singh Vs. State of U.P. (2007) 3 SCC
(Cri) 375 and observed as under:-
The power under Section 319 Cr.P.C. is conferred on the
court to ensure that justice is done to the society by bringing
to book all those guilty of an offence. One of the aims and
purpose of the criminal justice system is to maintain social
order. It is necessary in that context to ensure that no one
who appears to be guilty escapes a proper trial in relation to
that guilt. There is also a duty to render justice to the victim
of the offence. It is in recognition of this that Cr.P.C. has
specifically conferred a power on the court to proceed
against others not arrayed as accused in the circumstances
set out by Section 319 Cr.P.C. It is a salutary power enabling
the discharge of a court's obligation to the society to bring to
book all those guilty of a crime.
9. While applying its judicious mind on an application under
Section 319 Cr.P.C., the trial court cannot go into microscopic
discussion of the evidence. It is required to see the existence of a
strong prima facie case against the alleged accused. At the initial
stage of proceeding against the person, the trial court is not
concerned with the issue whether the trial would conclude with a
conviction or not. Since the provision of Section 319 (4) (a) envisages
a fresh trial for the newly added accused, fresh evidence needs to be
recorded, the evidence so recorded has to be discussed and
analyzed by the trial court. Thus the trial court is not required to
meticulously discuss the evidence while exercising the power under
section 319 Cr.P.C.
10. In the present case, Lakhan Singh had clearly revealed in his
statement under section 161 Cr.P.C. that the petitioner, along with
four others, had assaulted him with Saria. Thus, involvement of the
petitioner is apparent. There is no bar in law that the said statement
cannot be used for registering FIR. In fact according to section 154
Cr.P.C. the moment the police receives information about
commission of a cognizable offence, by known or unknown person,
the police is legally bound to register a FIR. In the present case, the
statement of Lakhan Singh not only revealed the commission of a
cognizable offence, but it also revealed the name of culprits and the
weapon used by them for assaulting him. Thus, the police was
certainly justified in registering a FIR. Hence, the first contention
raised by the learned counsel for the petitioner is without merit.
11. No universal principle can be laid down on the issue whether a
person is competent enough to give statement prior to his death or
not. A person's ability to give statement depends on various factors
about which evidence has to be led during the course of the trial.
Therefore, the learned counsel for the petitioner is not justified in
claiming that a person is incapable of giving statement just 45
minutes prior to his death. In the present case, according to Dr.
Ramesh Kumar (P.W.1) Lakhan Singh was certainly in a position to
comprehend the questions put to him and was capable of answering
them. Bharat Singh, ASI (P.W.2), who recorded the statement of
Lakhan Singh, has stated that Lakhan Singh was in his senses when
his statement was recorded. Thus, sufficient evidence does exist to
prima facie establish the veracity of the dying declaration. Therefore,
the learned Judge is certainly justified in summoning the petitioner.
12. At the stage of Section 319 Cr.P.C., there is no reason to
disbelieve the veracity and validity of the dying declaration. Whether
the dying declaration is genuine or not is to be adjudged on the basis
of testimony of the Doctor and of the ASI. Both the prosecution and
defence would have ample opportunities to examine and crossexamine
the witnesses with regard to veracity and validity of the
dying declaration. Therefore, the trial court is not required to adjudge
the genuineness of the dying declaration at the stage of Section 319
Cr.P.C. That is a task which the trial court has to perform after
placing the petitioner on trial. Hence, the contention that the trial
court should have gone into truthfulness of the dying declaration at
the stage of dealing with an application under Section 319 Cr.P.C. is
unacceptable.
13. Although the dying declaration did exist along with the charge
sheet, the police had kept the investigation pending against the
petitioner under section 173 (8) Cr.P.C. Since the police did not
submit a negative final report in favour of the petitioner, since the
police kept the investigation pending against the petitioner, therefore,
obviously the police was also convinced that the petitioner is prima
facie involved in the alleged offences. Thus, Mr. Chaturvedi is not
justified in claiming that despite existence of dying declaration, the
trial court did not take cognizance against the petitioner. In fact, once
the prima facie evidence with regard to genuineness of dying
declaration had come in, once the application under Section 319
Cr.P.C. was moved, the learned trial Judge was legally justified in
proceeding against the present petitioner.
14. Mr. Chaturvedi, is also unjustified in claiming that no fresh
evidence had come in against the petitioner during the course of trial.
Although it is true that no eyewitness has been examined, but the fact
remains that the trial court could act on the alleged dying declaration
after the evidence of Bharat Singh, ASI was recorded. Moreover, the
Doctor Ramesh Kumar P.W.1 has also testified about Lakhan Singh's
ability to give the statement. Thus, “fresh evidence” about the
capacity of Lakhan Singh had come in during the course of trial.
Therefore, the contention raised by Mr. Chaturvedi is without merit.
15. Mr. Chaturvedi, has suggested that application under Section
319 Cr.P.C. should have been decided after completion of the trial is
also unacceptable. For, Section 319 (4) (a) prescribes for a denovo
trial for the newly added accused. It would be in the fitness of thing to
add the accused, and to record the evidence against him during the
continuation of original trial against other co-accused. In case denovo
trial were to commence after the completion of original trial, valuable
time of the court would be wasted in re-recording the entire evidence.
Considering the burden of litigations on the trial court, the trial court
has to save its precious time. Therefore, the suggestion made by Mr.
Chaturvedi is unacceptable.
16. Considering the fact that murder was committed, considering
the fact that the deceased was allegedly assaulted by the petitioner,
considering the fact that the dying declaration has been proved prima
facie by P.W.1 and P.W.2, sufficient prima facie case does exist
against the present petitioner. Hence, there is neither any illegality,
nor any perversity in the impugned order.
17. Therefore, the revision petition being devoid of merit is, hereby,
dismissed.
( R.S. CHAUHAN ) J.
arn/