1994 JTR(All) 929
1995 19 ACR 538 ; 1995 3 Crimes(HC) 363 ; 1996 CrLJ 749 ; 1995 JIC 1012 ; 1996 KHC 2817
IN THE HIGH COURT OF ALLAHABAD
C. A. RAHIM
IRSHAD - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. REV. 1308 Of 1993
Decided On : 12/20/1994
The court has the power to summon additional accused persons when a prima facie case against them is established, and cross-examination of witnesses is not required at the stage of summoning.
Act Referred :CRIMINAL PROCEDURE CODE : S.319
(A) The central legal question pertains to the application of Section 319 of the Criminal Procedure Code, which empowers a trial court, including the Court of Sessions, to proceed against any person who is not an accused in the case but who appears to be guilty of an offence based on the evidence presented during the trial. In this instance, the provision was invoked to summon six individuals who had been dropped from the charge-sheet during the police investigation but were subsequently implicated by the testimony of the complainant during the examination phase of the trial.
(B) The court clarified that the power under Section 319 Cr.P.C. is based on the establishment of a prima facie case. It held that cross-examination of the witness is not a condition precedent for the court to exercise its jurisdiction to summon additional accused persons, as the individuals being summoned are not yet present before the court.
Facts of the case:
An FIR was lodged against seven persons for an armed assault on a household. Following the investigation, the police filed a charge-sheet against only two individuals, discharging the remaining five. During the trial in the Court of Sessions, after the complainant was examined, an application under Section 319 Cr.P.C. was filed to summon the six persons who had been previously discharged. The Sessions Judge allowed the application, leading the revisionists to challenge the order on the grounds that the witnesses were interested parties and that the summons were issued without allowing cross-examination of the witnesses first.
Findings of Court:
The court found that the Sessions Judge possesses the authority to summon additional accused persons under Section 319 Cr.P.C. upon finding a prima facie case. It observed that the requirement for cross-examination does not apply at the stage of summoning because the persons are not yet parties to the proceedings. Furthermore, the court held that the credibility of witnesses and their potential bias (due to counter-cases) are matters to be decided during the trial and not at the stage of determining whether to summon an accused.
Issues:
1. Whether cross-examination of a witness is a mandatory prerequisite before a court can exercise its power to summon additional accused persons under Section 319 Cr.P.C.
2. Whether the Court of Sessions has the jurisdiction to summon persons dropped during investigation under Section 319 Cr.P.C.
3. Whether the reliability of witnesses can be evaluated at the stage of summoning under Section 319 Cr.P.C.
Ratio Decidendi:
Section 319 Cr.P.C. allows the trial court to include any person when a prima facie case is established against them. Since the person to be summoned is not yet before the court, the right to cross-examine cannot be a condition precedent for the issuance of a summons. The evaluation of evidence and witness credibility is a matter for the final trial, not the summoning stage.
Result:
The revision petition was dismissed, and the stay order was vacated.
(A) The central legal question pertains to the application of Section 319 of the Criminal Procedure Code, which empowers a trial court, including the Court of Sessions, to proceed against any person who is not an accused in the case but who appears to be guilty of an offence based on the evidence presented during the trial. In this instance, the provision was invoked to summon six individuals who had been dropped from the charge-sheet during the police investigation but were subsequently implicated by the testimony of the complainant during the examination phase of the trial.
(B) The court clarified that the power under Section 319 Cr.P.C. is based on the establishment of a prima facie case. It held that cross-examination of the witness is not a condition precedent for the court to exercise its jurisdiction to summon additional accused persons, as the individuals being summoned are not yet present before the court.
Facts of the case:
An FIR was lodged against seven persons for an armed assault on a household. Following the investigation, the police filed a charge-sheet against only two individuals, discharging the remaining five. During the trial in the Court of Sessions, after the complainant was examined, an application under Section 319 Cr.P.C. was filed to summon the six persons who had been previously discharged. The Sessions Judge allowed the application, leading the revisionists to challenge the order on the grounds that the witnesses were interested parties and that the summons were issued without allowing cross-examination of the witnesses first.
Findings of Court:
The court found that the Sessions Judge possesses the authority to summon additional accused persons under Section 319 Cr.P.C. upon finding a prima facie case. It observed that the requirement for cross-examination does not apply at the stage of summoning because the persons are not yet parties to the proceedings. Furthermore, the court held that the credibility of witnesses and their potential bias (due to counter-cases) are matters to be decided during the trial and not at the stage of determining whether to summon an accused.
Issues:
1. Whether cross-examination of a witness is a mandatory prerequisite before a court can exercise its power to summon additional accused persons under Section 319 Cr.P.C.
2. Whether the Court of Sessions has the jurisdiction to summon persons dropped during investigation under Section 319 Cr.P.C.
3. Whether the reliability of witnesses can be evaluated at the stage of summoning under Section 319 Cr.P.C.
Ratio Decidendi:
Section 319 Cr.P.C. allows the trial court to include any person when a prima facie case is established against them. Since the person to be summoned is not yet before the court, the right to cross-examine cannot be a condition precedent for the issuance of a summons. The evaluation of evidence and witness credibility is a matter for the final trial, not the summoning stage.
Result:
The revision petition was dismissed, and the stay order was vacated.
MOHD.YUSUF
C. A. RAHIM, J.
( 1 ) A first information report was lodged against seven accused persons on the allegation that they being armed with deadly weapons entered into the house and assaulted the inmates for which all the inmates numbering about 8-9 persons were injured. They assaulted with an intention of committing murder. Firing was done but unfortunately it did not hit anybody. On the basis of that first information report a case was registered. After completion of the investigation charge-sheet was submitted against the two persons, namely, Jamshed and Ikramullah and rest of the persons were discharged. The case was committed to the Court of Sessions. But after examination of the complainant an application was filed under Section 319, Cr. P. C. for issuing summons to six accused persons (revisionist before me) and the same was allowed by the learned Sessions Judge. The present revision has been filed against the said order passed by the learned IX Additional Sessions Judge, Muzaffarnagar on 27-8-1993 in Sessions Trial No. 366 of 1992.
( 2 ) LEARNED counsel for the revisionists has submitted that a counter case has been started in which two persons on the side of the accused persons were also injured. The witnesses in this case are the accused persons of that case. It has also been submitted that the order of summoning was issued on the application of the complainant and without allowing any chance to the accused persons to cross examine the witnesses. Learned counsel for the respondent No. 2 has submitted that the learned Sessions Judge has got immence power to issue summons under Section 319, Cr. P. C. and he has done it after finding prima facie case against the applicants. He has referred the decision reported in 1988 All Cri CC 295 : (1988) Cri LJ 1467); Marghoobul Hasan v. State of U. P. Relying on number of decisions of Honble Supreme Court the learned Judge has held that Section 319, Cr. P. C. applies not only to the Magistrate but also to the Sessions Court. Cognizance is to be taken of the offence and not offender. So it is incidental to summon a additional persons dropped during investigation by the police. The contention of the learned counsel for the revisionists cannot be sustained that cross-examination should be a condition precedent prior to summoning all the additional accused persons named in the first information report but subsequently dropped during investigation. Section 319, Cr. P. C. provides jurisdiction to the trial Court to include some other persons when prima facie case against whom is established. I do not consider that cross-examination of such witnesses is required at this stage. Provisions of Section 319, Cr. P. C. is alike to Section 202, Cr. P. C. The difference being that under Section 319, Cr. P. C. jurisdiction of the trial Court can be invoked when prima facie case against some other persons besides accused persons is established. Under Section 200, Cr. P. C. a Magistrate exercises its jurisdiction at the out set to find out whether prima facie case is there or not. But there is one similarity that in both situations persons against whom trial Court or Magistrate is proceeding are not before the said Court hence the question of cross-examination does not arise.
( 3 ) ANOTHER submission of the learned counsel for the revisionists is that the witnesses are interested witnesses towards the prosecution and inimically disposed of towards the accused as they have been figured as an accused in the counter case. The said plea may be raised and considered during the trial while assessing the evidence of the witnesses concerned. This is the stage where evaluation of the evidence is neither possible nor desirable.
( 4 ) THE contention of the learned counsel for the revisionists fails. The revision is, therefore, dismissed. The stay order granted on 17-9-1993 is hereby vacated. Petition dismissed.
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