S.R.Bhargava - (1.) THIS revision is directed against order passed by Sessions Judge. Nainital in Sessions Trial No 135 of 1989, under Sections 8/18 and 8/20 of Nandrocotic Drugs and Psychotropic Substances Act, summoning the revisionist under Section 319 (2) for being tried together with Daya Ram.
(2.) FOR the purposes of this revision it may be stated that in 1987-88 revisionist Ratan Prakash was contractor of Bhang. On 3rd February, 1988 at about 3 p. m. 5.100 Kg opium and 17 kg. charas were recovered from residential house of Ratan Prakash who was not present at the house. His servant was present at the time of recovery and was arrested. On a complaint against Ratan Prakash and Daya Ram for offences under Sections 8/18 and 8/.2u of the aforesaid Act both of them were committed to sessions. On 12th July, 1989 the then sessions Judge, Nainital after perusing the record and documents and hearing the submissions of the counsel of the parties found that in statements under Section 161 CrPC the public witnesses of recovery not only admitted their presence at the time of recovery but said that the recovery was made from the premises in occupation of Daya Ram at his pointing out from the corner of a room in occupation of said Daya Ram himself Even Karan Singh, a member of the raiding party made similar statement under Section 161 CrPC. The then Sessions Judge held that the recovery was affected from the premises in occupation of accused Daya Ram and at his pointing out. Even after recovery he claimed the recovered articles. The learned Sessions Judge further held that the circumstances of the case showed that the contraband articles were found in exclusive possession of Daya Ram. The learned Sessions Judge even pointed out the evidence collected during investigation that Daya Ram was servant of Ratan Prakash. The learned Sessions Judge discharge Ratan Prakash under Section 227 CrPC charges were framed against Daya Ram. During evidence in the testimony of Pranpati Singh. PW 3. it emerged that Daya Ram is a poor man living in a hut at Thakurdwara in district Moradabad and during service with Ratan Prakash he used to travel from Thakurdwara to Kashimpur every day. An application for summoning Ratan Prakash under Section 319 (2) CrPC was moved and it was asserted that the recovery was made from the house of Ratan Prakash and for a poor man like Daya Ram it was not possible to possess such a huge quantity of opium and charas. The learned Sessions Judge went through evidence and came to the conclusion that it appears that Ratan Prakash also committed offence. Hence he passed the impugned order. Sections 227 and 228 CrPC provide the stage for the commencement of trial. Trial in a Criminal case commences from framing of charge or charges. Section 228 lays down that if on consideration of the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution the Judge is of the opinion that there is ground for presuming that the accused has committed an offence exclusively triably by court of sessions he should frame charge or charges against the accused in writing. Section 227 provides the converse. It lays down that when after consideration of the record of the case and documents submitted therewith and after hearing the submission of the accused and the prosecution, the Judge considers that there is not sufficient ground for proceeding against the accused, he should discharge the accused and record reasons for the same. It is evident that ground for presuming that accused has committed an offence means prima facie case that the accused has committed an offence. Absence of ground for proceeding against the accused, therefore, means absence of a prima facie case that accused has committed offence. It is obvious that the earlier Sessions Judge found that there was absence of prima facie case for which he gave reasons and discharged the revisionist. Before consideration of Section 319 CrPC some generel provisions of CrPC may be noted. Section 300 CrPC enshrines the principle of double jeopardy laid down in Article 20 (2) of the Constitution prohibiting prosecution of the same person for the same offence more than once. Explanation of Section 300 lays down that dismissal of a complaint, or discharge of the accused, is not acquittal for the purposes of this Section. It was argued by the learned A. G. A. that discharge of revisionist Ratan Prakash under Section 227 CrPC before framing of charge did not amount to his prosecution or acquittal. This argument of the learned A .G. A. appears to be quite sound and cannot be a bar against summoning of revisionist from being validly summoned under Section 319.
(3.) WHAT Section 319 lays down is that if during enquiry or trial it appears on the evidence adduced before the court 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. Words "appears from the evidence that any person......committed any offence......for the offence which he appears to have committed" occurring in Section 319 (1) indicate that the court having some evidence before it should satisfied of a prima facie case of offence against a person. But on behalf of revisionist reliance was placed on Single Judge case of our High Court Radhey Syam Misra v. State of U- P. 1986 Allahabad Criminal rulings 416. In this case it was generally said that Section 319 (1) CrPC is applicable only to a person who is not an accused but it appears from the evidence in the court on enquiry or trial that he has committed any offence. It is clearly not applicable to a person who has been accused in the case and has been discharged by the court. In this case on an application under Section 321 CrPC a person was discharged, it is not clear from the facts of the case given in the judgment whether that person was discharged before or after framing of the charge. It cannot be overlooked that clause (a) of Section 321 in cases of withdrawal of prosecution before framing of charge contemplates discharge and clause (b) in cases after framing of charge or when no charge is required contemplates acquittal. It follows that when the prosecution against a person is withdrawn after framing of charge and even if word discharge at the time of allowing the application for withdrawal is used, the conclusion is of acquittal and under Section 300 CrPC the same person cannot 6e prosecuted again. But when on withdrawal of prosecution before framing of charge a person is discharged he can be tried again and there can be no bar in summoning him at a latter stage of the case after some evidence under Section 319 CrPC. To my mind the case relied upon by the learned counsel for the revisionist is distinguishable and as explained above it is not applicable to the instant case. Learned A. G. A. vehemently argued that the words "any person not being the accused" in Section 3i9 (1) signify the stage when a person is sought to be summoned under this section and not the stage of institution of the case or the prosecution. This contention of the learned A. G. A. appears to be quite sound. In the case of S. S. Khanna v. Chief Secretary, Patna, 1983 Criminal Law Journal 1044 (SC) it was held that the jurisdiction of the court under Section 319 to implead a person, if all the conditions prescribed therein are satisfied remains unaffected. The court can summon a person despite the fact that Issue of process against him under Section 204 was declined and that order was confirmed even by High Court. In the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi, 1983 Criminal Law Journal 159 (SC), it was held that if the prosecution at any stage can produce evidence which satisfies the court that a person should have been made an accused, the court can take cognizance and try him along with other accused even if proceedings against him had been quashed by the High Court earlier.;