IN THE HIGH COURT OF UTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of case Criminal Misc. Application No. 663 of 2008 Date of decision :-27.11.2008 A.F.R. (Approved for Reporting) Not approved for reporting Date :- 27.11.2008 Initials of Judge Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the judge for signature. HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Misc. Application No. 663 of 2008 1. Manoj S/o Surender 2. Ravi S/o surrender 3. Smt. Babli W/o Manoj All R/o village Sahadpura P.S. Sarawa District Saharanpur ..Applicants Versus State of Uttarakhand & another …Respondents Dated:- 27th November, 2008 Mr. Manish Arora, Advocate for the applicants. Mr. Amit Bhatt, Addl. G.A. for the State. Hon’ble J.C.S. Rawat, J. Mr. Manish Arora, Advocate for the applicants. Mr. Amit Bhatt, Addl. G.A. for the State. 2. The petition under section 482 Cr.P.C. has been filed for setting aside the order dated 09.09.2008 passed by the Judicial Magistrate, Roorkee in case No. 2383 of 2004 (State Vs. Sanjay & others) under sections 498A, 323 I.P.C. and ¾ Dowry Prohibition Act, police station Gangnehar Roorkee, District Haridwar. 3. Brief facts of the case are that on 27.08.2004 an FIR was lodged with the police by Mahendra Singh- respondent with the allegations that the marriage was solemnized between the victim-Smt. Lalita and Sanjay S/o Surendra on 04.05.2003, but after a quite some time the accused persons, including the present applicants committed cruelty and caused injuries on the person of victim-Smt. Lalita in connection with the dowry demand. Thereafter, the police investigated the matter and submitted the chargesheet against four accused persons, namely Sanjay, surrender, Khurram and Gyano. So far as the present applicants are concerned, they were exonerated by the police. After framing of the charge, the court proceeded against the accused persons who have been chargesheeted by the police. The learned Magistrate examined Smt. Lalita as PW1 on 04.01.2006 and her cross examination was concluded on the same day. Thereafter, Mahendra Singh PW2 (informant & father of victim) was examined by court and his cross examination as deferred for next date. Meanwhile, an application under section 319 Cr.P.C. was moved by respondent no. 2-informant on 14.08.2008 alleging therein that since the evidence of Smt. Lalita PW1 and Mahendra Singh PW2 indicates the involvement of present applicants in the commission of offence, hence they should be summoned under section 319 Cr.P.C. The said application was allowed by the impugned order dated 09.09.2008. Feeling aggrieved by this, the present petition has been filed by the applicants-accused. 4. The main controversy involved for consideration and adjudication in this petition is that whether the learned Magistrate was correct in summoning the present applicants as accused under Section 319 Cr.P.C. when the trial of the case against four persons proceeded and two witnesses have been examined, out of which, one witness had been cross examined. Before proceeding further, I would like to refer the provisions of Section 319 Cr.P.C. which is as follows:- “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 persons 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 of 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 the 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.” 5. Perusal of the aforesaid provisions reveal that Section 319 Cr.P.C. gives ample power to the Court to take cognizance and add “any person”: not being accused before it and try him alongwith accused persons sent up for trial. However, this extraordinary power shall be exercised sparingly and only if compelling reasons exit. The scope of this Section is wide enough. The expression “any person not being the accused” clearly covers any person who is not being tried in the Court and the very purpose of enacting this provision shows that even persons dropped by the police during investigation against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression. The power can be exercised only if it appears from the evidence adduced during inquiry or trial the involvement of the person concerned in the offence being Inquired into or tried. In the case in hand, two witnesses have already been examined and the fact of involvement of present applicants h as been stated in their evidence. The participation of applicant-Manoj is also apparent from the cross examination of Smt. Lalita PW 1 that Monu @ Manoj is the applicant in the case. Learned counsel for the applicants relied upon the decision of Apex Court in Michael Machado & another Vs. C.B.I. reported In 2000 SCC (Cri) 609 in which the words “the Court may proceed against such person under section 319 Cr.P.C.” has been interpreted. The Apex Court has held in that case that the power under Section 319 Cr.P.C. is discretionary and it should be exercised only to achieve criminal justice. The court should not 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 bear in mind that there is no compelling duty on the court to proceed against other persons. In the case of Michael Machado (Supra), 49 witnesses had already been examined by the court and noticing all these facts the court did not find favour to the prayer of prosecution. 6. In the case of Palanisamy Gounder & another Vs. State 2006 (1) SCC (Cri) 568 in which initially chargesheet was filed against five accused including the appellants (Palanisamy Gounder & another). Later, on the application of the Public Prosecutor, the appellants were dropped as accused in terms of court’s order dated 10.09.2001. On 24.01.2002 the prosecution examined various witnesses and it was on the basis of their testimony that an application 319 Cr.P.C. was filed and the trial court directed the appellants to be summoned as accused. However, the trial court has observed in the order that though the case against the persons proposed to be added was not on solied foundation but they had to be impleaded as accused in order to find out the real truth. When the matter came to the High Court where the order of the trial was confirmed. When the matter came up before the Apex Court, the order of the trial court as well as the order of the High court were set aside by the Apex Court. 7. In the case of Krishnappa Vs. State of Karnataka 2004 SCC (Cri) 2093, the Apex Court while setting aside the judgment of the high court has held that the trial court was right in rejecting the application. The Apex Court has observed that the incident was of the year 1993; 17 witnesses had been examined; the statements of the accused under section 313 Cr.P.C. has been recorded; and the role attributed to the appellant, as per the impugned judgment of the High Court, was of instigation. Having regard to these facts coupled with the quashing of proceedings in the year 1995 against the appellant, it could not be held that the discretion was illegally exercised by the trial Magistrate so as to call for interference in that petition by the High Court. In the case in hand, two witnesses have been examined; the trial commenced in the year 2006; only one witness has been cross examined; and the cross examination of second witness has been deferred. Both these witnesses have stated about the involvement of present applicants in the commission of offence. It is well settled position of law that if the evidence before the trial court has been recorded it is credible and cogent against the present applicants who have been added as accused. 8. In view of the above, I am of the view that the order of trial court allowing the application under section 319 Cr.P.C. cannot be quashed. Both the witnesses have categorically stated about the involvement of present applicants in the commission of offence. As such, I do not find any reason to disbelieve this version of the witnesses at this stage. The petition lacks merit and is liable to be dismissed. Therefore, the petition is dismissed accordingly. However, it is made clear that if the accused applicants are produced before the Magistrate or they surrender before him their bail applications shall be disposed of expeditiously without waste of time. (J.C.S. Rawat, J.) Dated 27th November, 2008 LSR