IQBAL Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the revisionists, learned A.G.A., and perused the record.

(2.) THE present criminal revision has been filed against the impugned judgment and order dated 17.12.2008 passed by the Special/Additional Sessions Judge, Fast Track Court No. 1, Saharanpur in Special Sessions Trial No. 258/2008 (State v. Muzammil) under Sections 452, 323/34, 504, 506, I.P.C. and 3 (1) (x) SC/ST (Prevention of Atrocities) Act summoning the petitioners in exercise of power under Section 319, Cr.P.C. to face the trial along with accused who has already been charge-sheeted.

(3.) COUNSEL for the revisionists relied the judgment of the Supreme Court reported in JT2007 (11) SC 438, Guria @ Tabassum Tauquir and others v. State of Bihar and another. He has specially relied upon paras 13,14,15 and 16 of the aforesaid judgment which are quoted herein below: "13. On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that 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 proceeding 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 materials 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. Of course, as evident from the decision reported in Sohan Lal and others v. State of Rajasthan, JT 1990 (3) SC 599, the position of an accused who has been discharged stands on a different footing. 14. 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. [See (Lok Ram v. Nihal Singh and another), JT 2006 (4) SC 464]. 15. The factual position noted above goes to show that there was no new material after examination of the accused persons under Section 313 Cr.P.C. which threw any light on the incident. The evidence of PWs 4 and 5 is not the basis of the application under Section 319, Cr.P.C. as they have not spoken anything about the appellants. 16. As noted above, PWs 1,2 and 3 have stated about the presence of the appellants without any definite role being ascribed to them in their evidence recorded on 16.4.2001, 8.1.2002 and 29.4.2002. If really the complainant had, any grievance about the appellants being not made accused, that could have, at the most, be done immediately after the recording of evidence of PWs 1, 2 and 3. That has apparently not been done. Additionally, after the charge-sheet was filed, a protest petition was filed by the complainant which was dismissed. No explanation whatsoever has been offered as to why the application in terms of Section 319, Cr.P.C. was not filed earlier. The revisional Court did not deal with these aspects and came to an abrupt conclusion that all the PWs have stated that the appellants have committed overt acts and their names also find place in the protest petition. Undisputedly, no overt act has been attributed to the appellants by PWs 1,2 and 3. Nothing has been stated about the appellants by PWs 4 and 5. There was mention of their names in the F.I.R. A protest petition was filed. Same was also rejected. These could not have formed the basis of accepting the prayer in terms of Section 319, Cr.P.C. The High Court's order, to say the least, is bereft of any foundation. It merely states that there are materials against the petitioners before it. It also did not deal with various aspects highlighted above."