Brief Facts
- The Appellant was the informant in the case and was a prosecution witness in the Sessions Trial under Sections 458, 460, 323, 302, 148, 149 and 285 of IPC read with Section 25 of Arms Act, 1959. After investigation Police filed the charge sheet against 9 accused persons but the negative final report was filed in respect to 3 other accused (who were the Respondents in the present appeal).
- During the course of trial, an application was moved before the Trial Court by the Appellant under Section 319 of CrPC, for summoning these three persons as accused in light of the incriminatory evidence recorded against them during the course of trial. This application was allowed by the Trial Court, but the order was set aside by the High Court in Revision.
Issues
- What is the ambit of power available with the court under Section 319 of Cr.P.C?
- Can Court appreciate the merits of the case at the stage of consideration of application under Section 319 Cr.P.C?
Held
- The appeal was allowed and the original order of the Trail Court to summon the Accused-Respondents under section 319 of Cr.P.C was resorted.
- Sub-section (1) of Section 319 leaves it to the judicial discretion of the Court, where the trial is proceeding to summon a person as an accused (who is so far not an accused in trial), if evidence has appeared before the Court that such a person has committed an offence for which he should be tried together with the other accused. This judicial discretion is extremely limited by the circumstances which have been stated in sub-section (1) of Section 319.
- In our considered opinion the High Court has not appreciated the matter in the true perspective of Section 319 Cr.P.C. The revision of one of the three accused who were summoned, was allowed for the reasons that he was found innocent during investigation and that he never used the gun and had actually fled from the spot. These observations are even factually incorrect, from what we have just seen in the examination-in-chief of PW-9, the revisionist had fled the scene only after the commission of the crime by an “unlawful assembly”.
- The reasoning given by the High Court, cannot be accepted at the stage of consideration of application under Section 319 Cr.PC. The merits of the evidence has to be appreciated only during the trial, by cross examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319, though this is precisely what the High Court has done in the present case. Moreover, the High Court did not appreciate the important fact that the charges being faced by the accused were under Sections 458, 460, 323, 285, 302, 148 and 149 of IPC. Thus, one of the charges being Section 149, which is of being a member of an unlawful assembly, for attracting the offence under Section 149 IPC, one simply has to be a part of an unlawful assembly. Any specific individual role or act is not material.
- A plain reading of Section 149 IPC (read with Section 141 IPC), makes it clear that no overt act needs to be assigned to a member of an unlawful assembly. “Even if no overt act is imputed to a particular person when the charge is under Section 149 IPC, the presence of the accused as part of an unlawful assembly is sufficient for conviction”.
- The entire purpose of criminal trial is to go to the truth of the matter. Once there is satisfaction of the Court that there is evidence before it that an accused has committed an offence, the court can proceed against such a person. At the stage of summoning an accused, there has to be a prima facie satisfaction of the Court. The evidence which was there before the Court was of an eye witness who has clearly stated before the Court that a crime has been committed, inter alia, by the revisionist. The Court need not cross-examine this witness. It can stop the trial at that stage itself if such application had been moved under Section 319. The detail examination of the witness and other witnesses is a subject matter of the trial which has to begin afresh.
Relevant Page No.
- 5-12