Full Judgment
Cr.P.C. is directed against order no. 12 dated 16.06.2008 passed by the
learned Additional Sessions Judge, 2nd
Fast Track Court, Lalbagh,
Murshidabad.
2. By the said order the learned Court below has disposed of a petition
dated 20.03.2008 filed by the prosecution under Section 319 Cr.P.C.
for adding and summoning four accused persons namely, Chand
Sadagor, Sadek Ali, Usuf Nabi and Mofakkarul @ Mofajjarul Islam
and allowed the same on the grounds stated therein.
3. Being aggrieved by and dissatisfied with such order the aforesaid
added four accused persons against whom summons have been
issued for appearance have filed this revisional application
contending inter alia, that in the FIR lodged by the defacto
complainant Ajijul Rahaman against fifteen accused persons
including the four petitioners herein it was alleged inter alia, that on
29.06.2003 at about 3:15 p.m. all the fifteen accused persons being
armed with fire arms and deadly weapons entered into the house of
one Mojaffar Sk. and accused Chand Sadagor assaulted the father of
the said complainant with knife as a result of which his father
succumbed to his injuries instantly and accused Mainul, Sadek Ali
and Khos Mohammad assaulted Ashinur Bewa, sister of the
complainant with knife causing injury on her person and accused
Moffajjrul Islam and Usuf Nabi assaulted Tajibur Rahaman with
dagger causing injury in his person. Both the injureds were shifted to
K. P. Hospital for treatment from where they were referred to
Berhampore N. G. Hospital. On the basis of such complaint the
Lalgola P.S. case no. 127 of 2003 dated 29.06.2003 under Section
147/148/149/326/302 IPC was started. Upon completion of
investigation the IO submitted charge sheet against twelve accused
persons excluding the present petitioners and accused Farhad Ali
and Milan Sk. Accordingly, the learned Court below took cognizance
of the offence against twelve charge sheeted accused persons and the
present four petitioners as well as accused Farhad Ali and Milan Sk.
were discharged from the case.
4. It is further submitted that after commitment of the said case before
the learned Additional Sessions Court for trial and upon subsequent
transfer of the same to the Court of learned Additional Sessions
Judge, 2nd
Fast Track Court, Lalbagh, charge sheet was framed
against twelve charge sheeted accused persons and some witnesses
had already been examined. At this stage the learned Public
Prosecutor filed an application under Section 319 Cr.P.C. containing,
inter alia, that sufficient incriminating materials against the present
FIR-named accused are forthcoming in the statement of witnesses
recorded under Section 161 Cr.P.C. and in the testimony of PWs 2, 3
and 4. So he made a prayer to the learned Trial Court for inclusion of
names of these accused persons and to issue summons against them
which has been allowed and is now being challenged.
5. It is contended on behalf of the aforesaid petitioners that the learned
Trial Judge has not diligently exercised his discretionary power under
Section 319 Cr.P.C. and the same is arbitrary. At the time of filing
charge sheet there was no allegation against the four petitioners and
at the time of taking cognizance and framing of charge by the learned
Trial Court there was no prima facie material against these accused
persons and the IO also made a prayer for their discharge. Learned
committing and trial Courts below remained silent so long regarding
the above matter and as such at a belated stage it is not just and
proper to implead the present accused persons. At the time of
allowing such prayer and issuing the process the learned Trial Judge
has ignored the ratio of the Honble Apex Court in the case of
Joginder Singh and Anr. Vs.- State of Punjab and Ors., AND The
Municipal Corporation of Delhi Vs.- Ramkrishna and Ors. and as
such the said order is bad in law and is liable to be quashed.
6. From the impugned order of the learned Sessions Judge it will appear
that while considering the prayer he has held inter alia, that four
petitioners herein are all named in the FIR and the IO concerned is
silent regarding their conduct at the time of filing the charge sheet
and did not pray for their discharge. At that stage the case was
committed and trial began. In course of examination of four
witnesses tangible materials regarding involvement of these four
petitioners transpired and therefore, in view of the principles laid
down in (2006) 2 C Cr L R (SC) 131 he has entertained the prayer
having been satisfied with the sufficient incriminating materials
against present petitioners also and so they should face the trial and
as such added them as co-accused. Moreover, in view of the ratio in
(2005) 2 C Cr L R (Cal) 190 before discharging the FIR-named
accused the Court ought to have issued notice to the defacto
complainant which has not also been complied with in the instant
case leaving the issue undecided so far. Considering all these aspects
he has exercised his discretionary power and allowed the prayer
under Section 319 Cr.P.C.
7. Having heard the learned lawyers for both the parties present and
upon consideration of entire materials on record I find that the
present petitioners were not earlier discharged by the learned
Magistrate concerned who took cognizance of the offence and I.O.
remained silent in his investigation report so charge was also not
framed by the trial Court against them at the initial stage. After
examination of four witnesses in course of trial their complicity
transpired to the satisfaction of the learned Trial Judge who has
exercised his discretionary power under Section 319 Cr.P.C. In the
case of Ram Singh & Ors. Vs.- Ram Niwas & Anr. reported in (2010)
1 SCC (Cri) 1278 it has been held inter alia, that the word powers
in Section 319 makes it necessary for Court to arrive at a decision
that the evidence adduced on behalf of prosecution, if not rebutted,
would lead to conviction of persons sought to be added as accused.
Discretionary jurisdiction under Section 319 Cr.P.C. can be exercised
only after the legal evidence comes on record and from that evidence
it appears that the person concerned has committed an offence. In
the light of the above principle if the FIR and testimony of four PWs
examined so far are examined it will appear that sufficient
incriminating materials are forthcoming against all these four FIRnamed accused. There is no denial of the fact that they are named in
the FIR. In the last paragraph of the charge sheet submitted by the
IO dated 26.03.2004 it appears that the IO has made the following
observation:
There is not evidence accused (1) Mafazzarul Isaam @
Badal. (2) Farhad Ali. (3) Milan Sk. (4) Yushuf Nabi. (5)
Sadek Ali. (6) Chand Sadagar.
But he has not prayed for their discharge and the committing
Magistrate while taking cognizance has not discharged all those six
persons. Admittedly the learned Trial Judge also did not frame any
charge against those six persons on the basis of the result of
investigation made by the IO. Though the I.O. after conclusion of
investigation has arrived at a finding that no evidence transpired
against six persons, he remained silent regarding their discharge and
so I hold that the I.O. has left the matter solely at the discretion of the
Court. This in my opinion is not omission on the part of I.O. but a
conscious exercise of his free mind for leaving the matter for scrutiny
of the Court.
8. The power conferred under Section 319 Cr.P.C. is admittedly purely
discretionary of the learned Trying Judge to exercise it, if necessary
at any stage. For the purpose of convenience the same is quoted
below:
319. Power to proceed against other persons
appearing to be guilty of offence. - (1) Where, in the
course of any inquiry into, or trial of, an offence, it appears
from the evidence 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.
(2) Where such person is not attending the Court, he may
be arrested or summoned, as the circumstances of the
case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under
arrest or upon a summons, may be detained by such
Court for the purpose of the inquiry into, or trial of, the
offence which he appears to have committed.
(4) Where the Court proceeds against any person under
sub-section (1), then
(a) The proceedings in respect of such person shall be
commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may
proceed as if such person had been an accused
person when the Court took cognizance of the
offence upon which the inquiry or trial was
commenced.
While examining the prosecution witnesses the learned Trial Judge
considered the testimony of PW 2 Ajijul Rahaman, PW 3 Tajibur
Rahaman and PW 4 Smt. Ashinur Bewa including their crossexamination. It appears that all these three witnesses have
categorically stated the presence of petitioners herein at the place of
occurrence and the active part played by them in the alleged murder of
the father of the defacto complainant and assault upon his sister and
brother. The learned Trial Judge is thus fully satisfied with such
findings and exercised his discretionary power under Section 319
Cr.P.C. it can neither be held illegal nor outcome of non-application of
his judicial mind. Therefore, at this stage of trial I do not find any
illegality or impropriety in the findings of the learned Trial Judge who
has rightly allowed the prayer of the prosecution under Section 319
Cr.P.C. after careful consideration of chief and cross examination of
those prosectuion witnesses.
9. Therefore, I do not find any merit in this application which is
accordingly dismissed. Learned Court below is directed to proceed
with the trial as per law.
10. Urgent photostat certified copy of this order, if applied for, be
supplied to the respective parties, upon compliance of all requisite
formalities.