PAULOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) Cognizance, whether it be under S.190(1) of the Code of Criminal Procedure or under any other Statute, is only of the offence and not the offender or offenders. Whether on complaint or on police report or upon other information or knowledge, what is required for taking cognizance is only, reception of facts which constitute offence. It can be against known or unknown persons or both as the definition of 'complaint' in S.2(d), Cr. P.C. indicates. All the offenders or their identities may not be before court when cognizance is taken. In such cases court has not only the right but also the duty to find out the persons involved. That is one of the purposes of compliance of S.200 or if necessary 202 and the power to order investigation under Ss.156(3), 202(1) or further investigation under S.173(3). Even before framing charge the court can summon an offender as an additional accused if it is satisfied of a prima facie case against him from the records. Section 319, Cr. P.C. is not the sole repository of the power of court in the respect. Section 319 operates only in a narrow field where trial has proceeded or enquiry commenced. Section 319 is designed to meet the specific and limited situation of a court discovering in the midst of a trial or enquiry from the evidence recorded that some additional accused should also be tried together with the persons already before it. It has no relevance to the pre-trial or pre-enquiry stage (Sk. Latfur Rahman v. State, 1985 Cri LJ 1238 (Pat) (FB).

(2.) Section 319 really confers an extraordinary power on criminal courts. It should be used only very sparingly if compelling reasons exist for taking cognizance against one who was not brought to limelight even though elaborate investigation was over (Joginder Singh v. State of Punjab, AIR 1979 SC 339, S.S. Khanna v. Chief Secretary, Patna, AIR 1983 SC 595 and Naryanan Nambiar v. State of Kerala (1987) 1 Ker LT 871 . In normal cases a complainant may also be aware of the identity of persons who perpetrated the crime against him. Resort to S.319(1) in a complaint case or police report may arise only when involvement of new persons for the first time come to light by the evidence brought in during inquiry or trial. In such cases no question of a fresh cognizance will arise because cognizance of the offence was already taken and what is involved is only identifying new offenders. In order to proceed against such new persons it must appear from the evidence collected during inquiry or trial that such person also committed the offence. What is involved is only the judicial satisfaction to proceed against him and not the satisfaction that he is guilty. Guilt or innocence is a matter to be decided on the materials collected during trial. What is required is only that he 'appears' to have committed the offence. That is only the satisfaction which is equivalent to the one issuing process or framing charge and not for conviction. But that satisfaction must be received from the 'evidence' collected during inquiry or trial.

(3.) The provision is only enabling. The discretion is always with the court. It is for the court to decide whether the new person has to be tried along with others already before it in the same trial or to be tried separately. The satisfaction required for proceeding to try him along with the accused already on record is that he has committed any offence for which he could be tried together with others. That means what is required is not satisfaction of the commission by him of any offence, but his involvement in the same offence along with others or a connected offence for which he could be tried with them in the same trial. If the offence disclosed by the evidence against the new person is a distinct one for which his trial along with the other persons is not warranted by the provisions of the Code, S.319 has no application. So also the proviso to S.132 of the Evidence Act will have to be borne in mind. The answers which a witness shall be compelled to give while examined in court cannot subject him to any prosecution or proved against him in any criminal proceeding except a prosecution for giving false evidence by such person. In deciding what is said is 'compelled', his liability under S.132, Evidence Act will have to be taken into account. Placing a man on trial for an offence on his own evidence alone is contrary to the traditions of justice in criminal courts as they now stand. (Easatulia Mian, In Re AIR 1925 Cal 104.