- (1.) J. C. Gupta, J. Heard applicants' Counsel in revision and the learned A. G. A.
(2.) BY means of this revision ap plicants have challenged the order of the learned Addl. Sessions Judge, Saharanpur (Court No. 2) in Special Session Trial No. 1153/99 whereby applicants have been summoned as accused in exercise of powers under Section 319 Cr. P. C. to face their trial alongwith the accused already named by the police in the charge sheet submitted after investigation. Learned Counsel for the ap plicants submitted before the Court that in this case both the applicants in revision were named in the first information report alongwith remaining two accused persons, who are facing trial before the Court below, but during investigation their in volvement was found doubtful, and there fore, they were not charge sheeted. In such a situation the applicants could not be summoned by the trial Court in exercise of powers under Section 319 Cr. P. C. In sup port of this submission learned Counsel for the applicants placed reliance upon a single Judge decision in Pradeep Kumar v. State of U. P. and Others, 2001 (42) ACC 1021, wherein the learned Judge expressed the opinion that in a case where a person who was already named as accused in the first information report, but is not charge sheeted, the provisions of Section 319 Cr. P. C. cannot be invoked. In support of this holding, the learned Judge placed reliance ont the Apex Court's decision in Michael Machado v. C. B. I. , 2000 (40) ACC 795 ; 2000 (2) JIC 5 (SC ). I have gone through the said decision and find myself unable to locate any such proposition therein, which in the opinion of the learned Judge has been laid down by the Apex Court. In that case the person who were summoned as additional accused persons under Section 319 Cr. P. C. were neither named in the first informa tion report nor were charge sheeted. Even the C. B. I, had chosen to recommend only departmental proceedings against those persons, instead of arraigning them as ac cused alongwith the four sons named in the first information report. Even during the trial until 49 witnesses were examined by the prosecution, their names did not figure in the evidence anywhere and the trial Court had no reason to feel the neces sity to implead them as additional accused persons. But when evidence of remaining three witnesses was recorded, it appeared to the trial Court that the additional ac cused persons were also involved in the crime and it summoned them under Sec tion 319 Cr. P. C. The Apex Court in the peculiar set of facts and circumstances of that case observed that even according to the trial Court the first 49 witnesses did not utter a single word against any of the ac cused persons, who were later summoned under Section 319 Cr. P. C. The Apex Court felt that in these circumstances where prosecution had already examined quite a large number of witnesses and they were cross examined by the defence, summon ing of additional accused under Section 319 Cr. P. C. at that stage was not war ranted. It was further held that the Court while deciding the question whether to invoke power under Section 319 of the Code must also address itself about the other constraints imposed by the first limb of sub-section (4) that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. If the witnesses already ex amined are in quite a large number, the Court must seriously consider whether the objects sought to be achieved by such exer cise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the of fence concerned, the Court should refrain from adopting such a course of action. The Apex Court further held that the basic requirement for invoking the aforesaid provision is that it should appear to the Court from the evidence collected during trial or in the enquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It ap pears to me that perhaps on the basis of these observations, the learned single Judge has taken the view that once a per son has been nominated as an accused in the first information report but is not sent up for trial by the investigating agency, powers under Section 319 Cr. PC. cannot be invoked as he was a person already arraigned as an accused in the case being named in the first information report.
(3.) TO my mind the expression "who is not arraigned as an accused in that case" would mean a person who is not facing trial as an accused in that particular case and not a person who was merely named as an accused in the first information report. I may also refer to another decision of the Apex Court in Kishun Singh v. State ofbihar, 1993 ACC (167 ). In that case it was held that Section 319, Cr. P. C. contemplates existence of some evidence in the course of trial wherefrom the Court can prima facie con clude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the powers conferred by Section 319 of the Code. I am further fortified in my view in the decision of the Apex Court in Municipal Corporation v. R. K. Rohatagi, 1983 SC 67. For the above reasons, and with respect I am unable to agree with the view expressed by my learned brother in the aforesaid decision of Pradeep Kumar's case. It is, thus, necessary that this question of law is examined and answered by a larger Bench.;