Full Judgment
Ghanshyam Prasad, J.
1. Heard.
2. This application under Section 482 Cr.P.C. has been filed to quash the order dated 13.3.2006 passed by Fast Track Court No. I, Aurangabad in Sessions, Trial No. 111 of 2004/20 of 2005 thereby all the five petitioners have been summoned under Section 319 Cr.P.C. alongwith other accused persons.
3. The facts of this case in brief is that on 10.6.2002 at 2.30 P.M. occurrence took place for a piece of land between the prosecution and accused party. In that very incident, two Persons from the side of accused-petitioners were murdered. Both the parties lodged case against each other. The accused side lodged fardbeyan on the same day at 9.30 P.M. upon which the police registered case bearing No. 258 of 2002 under Sections 302, 307, 147, 148 and 149 I.P.C. against 14 persons (Annexure-2). Next day on 11.6.2002 at 9.00 P.M. one Budhni Devi from the side of the prosecution lodged, farbeyan before Mufassil P.S. upon which the police registered case bearing No. 260 of 2002 under Sections 147, 148, 149, 323, 324, 436, 427 and 307 I.P.C. against 19 persons from the side of the accused-petitioners.
4. The police investigated both the cases and ultimately submitted chargesheet in both the cases. In present case, the police submitted chargesheet only against 14 persons and final report against these petitioners showing them as innocent. Accordingly, the learned C.J.M. took cognizance against 14 persons and discharged these petitioners.
5. In course of the trial, the prosecution examined two witnesses, namely, P.W.1, Rajendra Yadav and P.W.2, Amarjeet Yadav. Thereafter, from the side of the prosecution, petition under Section 319 Cr.P.C. was filed to summon these petitioners to face trial. The learned Fast Track Court after Hearing both the parties allowed the prayer and issued summon against these petitioners.
6. It is submitted by the learned Counsel for the petitioners that the lower court had no power to issue Summon against the petitioners under Section 319 Cr.P.C. as they had been discharged by the learned C.J.M. on the basis of the final report submitted by the police. The witnesses examined by the prosecution are named in counter murder case and hence their evidence, prima facie, is not fit to be relied upon. It is further submitted that in order to summon additional accused persons under Section 319 Cr.P.C. there must be reliable evidence. The power conferred under Section 319 Cr.P.C. is enabling one and not mandatory and it should be sparingly used in rare cases and not in machenical manner. The learned Counsel relied upon several decisions including 1991(1) PLJR 41 S.C. (Sohan Lal and Ors. v. State of Rajasthan), 2005(1)PLJR 50 S.C. (Krishnappa v. State of Karnataka 2005(11)S.C.C. 182 (Kailash Dwivedi v. State of M.P. and Anr.) as well as : 2000 CriLJ1706 (Michael Machado and Anr. v. Central Bureau of Investigation and Anr.).
7. The scope of Section 319 Cr.P.C. and basis requirements to summon additional accused under this provision has been discussed by the apex court in Several decisions. However, it would be suffix to discuss only a few decisions which are relevant for decision of this case. In a decision reported in : 2000 CriLJ1706 , this matter has been dealt with in detail. In paragraphs 11, 12 and 13 of the judgment it has been held as follows:
11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry 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 is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.
12. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person'. The discretionary power so conferred should be exercised only to achieve criminal Justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.
13. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi this Court has struck a note of caution, while considering whether the prosecution can produce evidence to satisfy the court that the other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the court to take cognisance against them and try them along with the other accused. This was how learned judges their cautioned: (SCC p.8, para 19)
But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognisance against the other person against whom action has not been taken.
8. In another decision of the apex court reported in 2005(1) PLJR 50, the apex court after relying upon the above decision of 2000 (3) S.C.C. has held as follows in paragraphs 6 and 7:
6. It has been repeatedly held that the power to summon an accused is an extraordinary power conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
7. In the present case, we need not go into the question whether prima facie the evidence implicates the appellant or not and whether the possibility of his conviction is remote, or his presence and instigation stood established, for in our view the exercise of discretion by the Magistrate, in any event of the matter, did not call for interference by the High Court, having regard to the facts and circumstances of the case.
9. Similar view has also been expressed in a recent decision reported in 2006 (10) S.C.C. 192.
10. Now let us consider the case in hand on the back drop of above decision of the Supreme Court. From the facts stated above, it is quite clear that in the alleged occurrence two persons from the side of accused-petitioners were murdered by fire arms. Both the witnesses examined by the prosecution are accused in that very murder case with specific accusation. After 24 hours of lodging case of murder, the present case was lodged by wife of one of the alleged injured, namely, Hanuman Yadav who is also one of the accused in the murder case. In course of investigation, none of the witnesses examined in court named these petitioners as having hand in crime. Therefore, on the basis of evidence of P.Ws. 2 and 3, there appears no chance of conviction of the petitioners. Apart from it, these witnesses have not alleged any specific accusation against any of the petitioners. The firing alleged to be resorted to by the petitioner Shiv Kumar Yadav, admittedly, did not hit the injured.
11. Thus, from the above discussion, it is quite clear that there was neither any valid ground nor reliable evidence nor compelling reason before the court below to issue summon against these petitioners.
12. In the facts and circumstances, this petition is allowed and the impugned order is hereby quashed.