Skip to content


Abhey Singh Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 308 of 1984
Judge
Reported in1985(2)WLN417
AppellantAbhey Singh
RespondentState of Rajasthan
DispositionRevision allowed
Cases ReferredState v. Lekh Raj
Excerpt:
.....accused before him--held, order passed is beyond scope of section 319 and cannot be sustained ;the learned sessions judge has decided to proceed under section 319 against the petitioners after he had already concluded the trial of the accused persons who had been brought before him and thus these orders are beyond the scope of section 319 cr.p.c and cannot be sustained. after having announced the judgment in the two cases, the learned sessions judge was left with no jurisdiction to pass any order under section 319 cr. pc.;revision allowed. - - this departure by not keeping a provision like section 351(1) of the old code clearly shows that the powers under section 319 can be exercised only while the enquiry or trial the accused already before the court is still pending. this contention..........application under section 319 cr.p.c for taking cognizance against ram singh and padam singh. the learned sessions judge heard arguments on this application also and fixed the case for pronouncement of judgment as also the order on this application on 10-8-1984. the learned judge by his judgment dated 22-8-1984 acquitted the accused persons of the charge under section 307 ipc but convicted the three accused who had already been tried for offences under sections 326/34, 325/34, 324/34 and 323 ipc and sentenced them to various terms of imprisonment and fine. by another order of the same date, the learned sessions judge directed that cognizance is also taken against abhey singh, padam singh and ran singh for offences under sections 326/34, 325/34, 324/34 and section 323 ipc. he further.....
Judgment:

Kishore Singh Lodha, J.

1. The point involved in these two criminal revisions is common and, therefore, they are being disposed of by a common order.

2. In Revision No. 308/84, the police had put up a challan against three persons Chhail Singh, Mehar Singh and Roop Singh for offences under Sections 147, 148, 149, 307, 323, 325 and 341 IPC. The case was committed to the Court of Sessions and the trial started. The prosecution evidence was over. The accused were examined under Section 315 and thereafter the defence witnesses were also examined and the case was fixed for final arguments. During the course of arguments, on 8-8-1984, the learned PP moved an application under Section 319 Cr.P.C for taking cognizance against Ram Singh and Padam Singh. The learned Sessions Judge heard arguments on this application also and fixed the case for pronouncement of judgment as also the order on this application on 10-8-1984. The learned Judge by his judgment dated 22-8-1984 acquitted the accused persons of the charge under Section 307 IPC but convicted the three accused who had already been tried for offences under Sections 326/34, 325/34, 324/34 and 323 IPC and sentenced them to various terms of imprisonment and fine. By another order of the same date, the learned Sessions Judge directed that cognizance is also taken against Abhey Singh, Padam Singh and Ran Singh for offences under Sections 326/34, 325/34, 324/34 and Section 323 IPC. He further observed that since all these offences are triable by the Court of Magistrate, the matter may be sent to the Chief Judicial Magistrate, Banner to summon the three aforesaid persons and deal with them in accordance with law. It is against this order that the present petitioners have come up in revision.

3. In Revision No. 331/84, the police had put up a challan for offences under Sections 147, 148, 307, 323, 324, 325 and 326 IPC read with Section 149 IPC against seven accused persons. They were committed to the Court of Sessions and charges regarding the aforesaid offences were framed against them. They pleaded not guilty and the trial started. On 16-6-1983, one witness Sattar was examined. When his examination-in-chief was over, the PP submitted am application under Section 319 Cr.P.C before the learned Sessions Judge praying that cognizance may also be taken against the twenty persons, who are the present petitioners. The learned Sessions Judge deferred the cross-examination of the witness Sattar and by his order dated 16-6-1983, allowed the aforesaid application and took cognizance against the petitioners and issued bailable warrants against them. The petitioners came up in revision before this Court & this Court by its order dt. 2-9-1983, set aside the order of the learned Sessions Judge on two counts, namely, that the cognizance Under Section 319 could have been taken only after the statements of the witnesses had been completed and the mere examination-in-chief of the witness does not amount to his evidence as such and that the order taking cognizance against the petitioners was not a speaking order as required by Section 319(1) Cr.P.C. The matter was sent back to the learned Sessions Judge, Balotra, observing 'In case, he feels, he should take cognizance against the petitioners and to summon them for trial, he will pass a fresh speaking order in the light of the observations made above'. When the matter went back to the learned Sessions Judge, he started taking evidence. The case was fixed for evidence oh 8th and 9th February, 1984. However on 8-2-1984, the learned PP withdrew his application under Section 319 Cr.P.C and the case proceeded for further evidence. Five witnesses were examined by 8-5-1984 and then again, the learned PP moved an application under Section 319 Cr.P.C a copy of which was given to the learned counsel for the accused, who wanted time to argue the same. This application, however, was not argued till the whole prosecution evidence was over as also till the accused were examined and their defence evidence was also taken. It appears that on 18-7-1984, 19-7-1984 and 31-7-1984, the learned Sessions Judge heard arguments in the sessions case and fixed the case for judgment on 2-8-1984. He by his judgment dated 2 8-1984, convicted the accused persons who had been put up for trial before him for various offences, namely, 147, 325, 326, 324 and 323 and some of the offences with the aid of Section 149 and sentenced all the persons to various terms of imprisonment and fines. Thereafter the learned Sessions Judge proceeded to hear arguments on the application under Section 319 and by a separate order took cognizance for offences under Sections 147, 326/149, 325/149, 324/149 and Section 323 IPC against the present petitioners and directed that as these offences were triable by Magistrate, the matter may be sent to the Chief Judicial Magistrate. It is against this order that Revision No. 331/84 has been filed.

4. I have heard the learned counsel for the petitioners in both the cases as also the learned PP and have gone through the record of both the cases.

5. The question which arises for consideration in these two revisions is whether after having disposed of the sessions case pending before him, could the learned Sessions Judge take cognizance against the present petitioners, who according to him, could have been tried together with the accused who had already been committed and stood tried before him.

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 subSection (1), then.

(a) the proceedings in respect of such person shall be commenced afresh, and the 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.

7. Now the very opening words of this Section make it clear that the Court can proceed against persons who had not been accused before it only in the course of any enquiry into or trial of an offence. That means that some accused must have been put up for enquiry or trial before the court and during the course of that enquiry or trial, the court receives evidence which shows that any person who was not so put up before the court as an accused has also committed any offence for which such persons could be tried together with the accused, who had already been committed to the court, the court may proceed against such persons for the offences which he appears to have committed. Thus, when the enquiry or a trial of the accused who had been brought before the court comes to an end, the power to proceed against any other person who may appear to have committed any offence and who could have been tried together with the accused already before the court also comes to an end & the court cannot take cognizance against him at that stage because this power can be exercised by the court only in the course of any enquiry into or trial of the accused who were already before it. The trial in these cases started with the framing of the charges against the accused persons who had been committed to the Court of Sessions and ended with the judgment of the court by which they were found guilty and sentenced. Since the judgment in those cases were announced and the accused persons had been convicted and sentenced the course of the trials came to an end and with it, the powers of the court under Section 319 also came to an end.

8. From the facts stated above, in both these cases, there is absolutely no reason to think that the order under Section 319 Cr.P.C had been passed before the judgment against the accused already before the court had been announced. It may, however, be stated that in the case of Toga and others, the trial court has observed:

bu dsl es ftu eqyfteku ds fo:) vfHk;kstu i{k es pkyku is'k fd;k gS muds f[kykQ vkjksi vUrZxr /kkjk 326] 325] 326@149] 325@149] 323 o 147 Hkk- n- la- c[kwch lkfcr gqvk gS A

9. It leaves no room for doubt that that observation could be made by learned Sessions Judge only after pronouncement of the judgment against those accused persons. Again in the order sheet of 2-8-1984 first brief note of the judgment has been recorded and thereafter it states that arguments on the application of the PP (under Section 319 Cr.P.C) were heard and by a separate order, cognizance was taken against the present petitioners. In the case of Abhey Singh and others also, the order sheet shows that first the judgment against the accused was announced thereafter the application under Section 319 Cr.P.C was considered and by a separate order cognizance was taken, against the petitioners in that case.

10. There does not appear to be any controversy about the term 'course of any enquiry or trial' and its normal meaning, must be deemed to-be, as stated above but it will be profitable here to refer to Palaght Municipality v. S.R. and Oil Mills 1975 Cri.L.J 479, a Full Bench decision of the Kerala High Court where a similar term under Section 20A of the Prevention of Food Adulteration Act came up for consideration and their Lordships observed the powers given under Section 20A can be invoked only during the trial of any person...Then in Govindarajan v. Food Inspector, Palni 1982 Cri.L.J (NOC) 131 (Mad) a learned Single Judge of that court observed 'the condition precedent for the application of Section 319(1) is that the proceedings should be taken against a person for an offence which he appears to have committed' in the course of any inquiry into, or trial of an offence... The trial of a case legally does not cease till the proceedings come to an end by the conviction or acquittal as the case may be, of the accused, and till then the proceedings are in the course of the trial'. It may, of course, be pointed out that this case is reverse to the case in our hand in as much as in that case cognizance was taken before the judgment in the trial of the accused already put up before the court was announced and, therefore, it was held that the powers under Section 319 could have been exercised. In our cases, the judgments have already been announced in the trial of the accused who had been put up before the court for trial and, therefore, on the analogy of this case it has to be concluded that the trial had come to an end by the pronouncement of the judgment against those accused persons and, therefore, the court ceased trying the case and this power under Section 319 Cr.P.C came to an end. In other words, after the judgment against the persons put up for trial had been announced, the court lost its jurisdiction under Section 319 Cr.P.C.

11. The conclusion that the court can proceed Under Section 319(1) only during the course of an enquiry or trial of some other accused persons already before the court is further supported by the provisions of Sub-section (4) of Section 319, which envisages that if the court decided to proceed against some other person, who is not accused before it, then the proceedings in respect of such person shall be commenced afresh and the witness re-heard and 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. If the court was free to proceed against those other persons after the completion of the enquiry or trial of the accused already before it, then there was no question of the proceeding being commenced against such persons afresh and the witness being re-heard and the assumption that such persons of the accused persons when the court took cognizance of the offence upon which the enquiry or trial was commenced.

12. It will be worth-while to point out that before the present Section 319 was introduced in 1973 under the amended Criminal Procedure Code, Section 351 was the analogous provision under the old Code but there is a significant distinction between the two provisions. Under Section 351 of the old Code Sub-section (1) authorises the criminal court to take cognizance against any person attending the court though not under arrest or upon the summons to detain such person for the purpose of enquiry into or trial of any offence, which from the evidence may appear to have been committed by him and Sub-section (2) of Section 351 provided that when the detention takes place in the course of an enquiry under Chapter XVIII or after the trial has been begun, the proceedings in respect of such person were to be commenced afresh and the witnesses re-heard. Whereas Under Section 319, the Court has been given power to take proceedings against any person not accused before it, if in the course of any enquiry into or trial of an offence, it appears from the evidence that that person has committed any offence for which he could be tried together with the accused already before the court. This departure by not keeping a provision like Section 351(1) of the old Code clearly shows that the powers under Section 319 can be exercised only while the enquiry or trial the accused already before the court is still pending.

13. It further implies that the trial of the person so added as an accused has to be with the accused already before the Court and a separate trial is not envisaged. Reference in this connection may be made to State v. Lekh Raj wherein H.R. Khanna, J. as his Lordship then was has observed as under:

I may observe that Mr. Vinaik has argued that Section 351 of the Code contemplates that the person against whom the order is made under the Section, should be tried separately and not along with the accused who are already standing trial in the case. It is accordingly, contended that the case should proceed against Lekh Raj and Bal Deo Singh, accused and there should be a separate trial against Subhash Chander. This contention is not well founded because once an order is made under Section 351 the person against whom that order is made becomes an accused at the trial of that very case in which the order is made. All that is required is that proceeding will have to commence afresh and witnesses re-heard so that the aforesaid person may not suffer because of the proceedings taken in his absence and before he is arrayed as an accused. It is not. however the object of the law that the aforesaid person should have a trial separate from the one in which the order against him is made.

14. As already stated above, in these two cases, the learned Sessions Judge has decided to proceed under Section 319 against the petitioners after he had already concluded the trial of the accused persons who had been brought before him and thus these orders are beyond the scope of Section 319 Cr.P.C and cannot be sustained. After having announced the judgment in the two cases, the learned Sessions Judge was left with no jurisdiction to pass any order under Section 319 Cr.P.C. He also could not have directed a separate trial and that too by a Magistrate. Under Section 319 it is only the court which is trying case against some accused which can add other person as an accused and try him along with those who are already before it as accused.

15. The result, therefore, is that both these revisions are allowed and the orders of the learned Sessions Judge, Balotra dated 2-8-1984 and 22-8-1984 are set aside.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //