BHUDEV SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) This revision has been filed for setting aside the ' order dated 15th April, 2008 passed by Additional Sessions Judge (F. T:c. NO. 5), Mathura, -in Sessions Trial"no. 264 07, State v. Ramveer and Ors. , where by the learned Judge rejected the application filed by the prosecution under Section, 319, Cr. P. C. for summoning the accused Dheeraj and Neeraj sons of Rarm eer, I ' under-Sectibns 307 and 323, IPC. 2 Heard Sri Ramanuj Tripathi learned Counsel for the revisionist, Sri Gaurav Kakkar, learned Counsel for Rarrweer, the accused in the abdve noted Sessions trial and the father of the accused Dheeraj and Neeraj and learned AGA for the State. 3. The contention of the learned Counsel for the revisionist is that the ac cused Dheeraj and Neeraj are named in the First Information Report and the witnesses have also stated about their presence and participation in the incident but the lnvestigating Officer did not submit charge-sheet against them. After the witnesses were examined and cross-examined in the Court, the prosecution filed an application to summon these two persons but the learned trial Court rejected the same by the impugned order holding that a person can besumraoned ifthere is sufficient evidence to show that he is likely to be convicted and that Dheeraj and Neeraj were minors, therefore, they could not be summoned as they could not be tried alongwith other accused persons. 4. Learned Counsel for the revisionist has contended that learned Judge has erred in rejecting the application and the findings recorded by the learned Judge are incorrect and or liatle to be set aside. 5. Section 319, Cr. P. C. reads as under: "319. Power to proceet 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 such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commencecf. " 6. Therefore, a person can be summoned. to be tried alongwith other accused on the basis of evidence that comes in the case if it appears that he has commit ted the offence as alleged. In this section the words that'there should be evidence which is likely to result in conviction have not been used. The words used are that "it appears from the evidence" and "the Court may proceed against such person for the offence which he appears to have committed. " Therefore, the word "ap pears" has been used twice. First with reference to evidence and second with reference to offence committed. Therefore, if at the stage of 319 Cr. P. C. the Court is satisfied from the evidence that has comebefore. it that the accused appears to have committed the offence he could be summoned. Moreover, in the instant case the allegations against these two accused are specific that they gave lathi" blows to Omkar and Smt. Jashoda Devi who received injuries. The witnesses have also stated these facts in the Court on oath. Therefore, there is every likeli-hood of these persons being convicted on the basis of the evidence. The finding of the learned lower Court to the contrary has been wrongly recorded and cannot be. accepted,- 7. The learned lower Court also held that these two accused were juvenile and there fore; they could not be tried alongwith the other accused persons. But this finding is also not correct and the words "tried together" are not mandatory in nature but or only directory. In the case of Shashikant Singh v. Tarkeshwar Singh, 2002 SCC (Cri) 1203, the Hon'ble Apex Court in para 9 has held that: ,,"the intention of the provision here is that where in the course of any enquiry into, or trial of an offence, it appears to the Court from the evidence that any person not being the accused has committed any offence, the Court may proceed against him for the offence which he appears to have commit ted. At that stage, the Court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the wit-nesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be ex-amined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross- examination of the newly added accused is the mandate of Section 319 (4 ). The words 'could be tried together with the accused' in Section 319 (1), appear to be only directory. 'could be'cannotunder these circumstances be held to be 'must be. " 8. In that case the trial had concluded before the newly added person was summoned and it was held that he could be tried in that case. 9. In the instant case even if the two accused are juvenile, they cannot be summoned and tried in any other proceeding except the present on the basis of the First Information Report lodged against them. In the case of Rajendra Singh v. State of U. P. and another, 2008 (1) J. Cr. C. 123, it has been held by the Hon'ble Apex Court in para 20 : "the power under Section 319 of the Code 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 purposes 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 rendsr justice to the, victim of the offence. It is in recognition of this that the Code has specifically conferred a power in the Court to proceed against others not arrayed as accused in the circumstances set oufby this section. It is a salutary power enabling the discharge of a Courfs obligation to the society to bring to book all those guilty of crime. " 10. Therefore,,ail the persons who appear to have. committed the offence should be tried. If the two accused are juvenile it shall be open to them to take necessary action for their trial before the juvenile justice board. 11therefore, I come to the conclusion that the learned trial Court has erred in rejecting the apblication under Section 319, Cr. P. C. and the revision is liableto be allowed and is here by allowed. The order dated 15-4-2008 is here by setaside and the learned Additional Sessions Judge is directed to pass suitable orders on the application filed by the prosecution for summoning the accused Dheeraj and, Neeraj under Section 319, Cr. P. C. according to law and in the light of observations made above. .