IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12193 of 2008 SAINA KUMAR, son of Late Saryug Yadav, resident of village Sonutola, Lemuabad, P.S. Pandarak, District Patna …PETITIONER Versus 1. STATE OF BIHAR 2. JOGENDRA YADAV, son of Late Ram Jodhi Yadav, resident of village-Lemuabad, P.S. Pandarak, Dist. Patna 3. KAILASH YADAV,son of Ram Bilash Yadav, resident of village-Dargahi tola P.S.Pandarak, Dist. Patna 4. KUSUM PAHALWAN, son of Sita Yadav, resident of village Dargahi tola P.S. Pandarak, Dist Patna 5. BRIJE @ BIJENDRA YADAV, son of Late Mishri Yadav, resident of village Lemuabad P.S. Pandarak, Dist. Patna …OPPOSITE PARTIES. For the Petitioner :M/s. Dinu Kumar, :Prem Ranjan Kumar, :Dharmendra Kumar & :Satyendra Prasad For the State :Mr. Rajesh Kumar, APP For o.p.nos.2 to 5 :Mr. Madhusudan Sharma „Madhup‟ Sr. Adv. & Mr. Ram Pravesh Kumar ---- O R D E R 04. 24. 11.2010 Question that falls for consideration in this case is that in the context of jurisdiction exercised under section 319 of the Code of Criminal Procedure, what would be the contour of the consideration while framing of charge(s) against the accused(s) who have been summoned and put on trial along with other accused(s) already facing the trial. This issue/question has crystallized in the following circumstances: Petitioner/informant lodged an F.I.R. alleging therein that four accused persons, namely, Jogendra Yadav, Kailash Yadav, Bhaskar Yadav and Kushum Pahalwan armed with rifle, whereas accuseds Dinesh Yadav,Raju Yadav,Suro Yadav, Brij Bihari Yadav, 2 Birje Yadav and others armed with lathi(s) arrived at the scene of occurrence and pulled Ram Bali in order to assault him. Others intervened to rescue him whereafter they were assaulted. It is the prosecution case that in the meanwhile the deceased Saryug Yadav, who was working in the nearby field, also came there to rescue them and made protest at which all the accused persons started assaulting him with lathi(s) and butt of the rifle. Accused Jogendra Yadav assaulted him with butt of the rifle at his right eye causing injury to him. It is the prosecution case that on receiving assault at the hands of the accused(s), the victim died on the spot whereafter all the accused persons fled away. On the strength of the Fardbayan, Pandarak P.S.Case No.48/2000 was registered under diverse sections including section 302 of the Penal Code and section 27 of the Arms Act. Recording of the FIR ignited investigation which was carried out whereafter charge-sheet was submitted on 23.04.2001 only against four accused persons (those who are facing trial). So far o.p.nos.2 to 5 are concerned, they were not sent up for trial as the materials collected in course of investigation were not found sufficient. On submission of charge-sheet, cognizance was taken and the case was committed to the court of sessions and the trial was taken up being Sessions Trial No.446/02. At the trial, three witnesses were examined on behalf of prosecution including the informant. Thereafter, an application under section 319 of the Code of Criminal Procedure (for short „the Code‟) was filed by the prosecution through the informant for proceeding against those persons who were not sent up for trial as there was 3 sufficient evidence on record to summon them for facing the trial together with the accuseds who were already facing the trial. Said application was heard in which the proposed accuseds also appeared and filed their rejoinder. On a consideration of submissions advanced on behalf of the parties and after going through the evidence on record, learned trial court found as under: “Aforesaid evidence in the record shows active participation of the accused person also in the commission of murder of Sarju Prasad and assaulted to. On careful consideration of the aforesaid evidence discussed above, I came to the conclusion that there is prima facie material on the record to summon the aforesaid proposed accuseds namely Jogendra Yadav, Kailash Yadav, Kushum Pahalwan and Birje @ Bijendra Yadav to face trial for the offence punishable u/s 302/149,323 I.P.C. and 27 Arms Act alongwith the accused persons who are facing trial in the instant case. Accordingly, the aforesaid 4 accused persons whose detail has been given in the petition u/s 319 Cr. P.C. filed by the prosecution be summoned u/s 319 Cr. P.C. Put up on 5.3.05 for their appearance. The o/c is directed to issue summons against the accuseds Jogendra Yadav, Kailash Yadav,Kushum Pahalwan and Birje alias Bijendra Yadav.” Aforesaid order was passed in presence of the opposite parties, but the same was not challenged and was allowed to become final. Subsequent thereto, an application was filed on 22.09.2006 on behalf of the opposite parties herein who were summoned to face the trial seeking discharge on the ground that materials on record of the case were insufficient/deficient to frame the charge(s). Learned trial court by order dated 23.09.2006 allowed the same concluding as under: “Perused the records of the case and the documents submitted therewith and after hearing the learned counsels appearing for the petitioners herein and the prosecution, I am of the considered opinion that there is no sufficient ground for 4 proceeding against the accused and chances of conviction are bleak on the basis of materials on records. It does not appear to be proper to allow the instant application to be continued. I hold that the application under consideration is fit to be allowed and the petitioners herein are hereby discharged on account of insufficiency of grounds to frame charges against them.” The informant aggrieved by the aforesaid order, has filed the present revision application. Heard learned counsel for the petitioner, the State and the opposite party nos.2 to 5 at length. Learned counsel for the petitioner submits that by reason of the impugned order an absurd situation has been brought about. It is stated that the same court on a consideration of evidence of the three witnesses adduced at the trial found sufficient evidence justifying summoning of the proposed accuseds (o.p.nos.2 to 5) to be proceeded against and tried together with other accused persons already facing the trial, whereas by order impugned the same court has taken a view that there is no sufficient ground for proceeding against the accuseds (o.p.nos.2 to 5) and chances of conviction are bleak on the basis of materials on record. It is next contended that law is fairly settled that while invoking the jurisdiction conferred under section 319 of the Code, the court has to confine its consideration to the evidence(s) brought on record during trial and cannot consider those materials which were collected in course of investigation. It is the contention of the petitioner that impugned order is vitiated on account of the fact that learned court below has considered the materials collected in course of investigation in order to come to the conclusion that there is lack of 5 sufficient and convincing materials on record for proceeding against the accuseds (o.p.nos.2 to 5) by framing charge(s) against them. He draws attention of the Court to section 319(1) of the Code in order to support the aforesaid contention. Learned counsel relies on the following judgments: 1. 2002 (3) PLJR (SC) 21 (Shashikant Singh vs. Tarkeshwar Singh) 2. AIR 2008 S.C. 1661 (Nishan Singh vs. State of Punjab) 3. 2002(2) PLJR 461(Munna Singh & Anr. Vs. The State of Bihar) Learned counsel appearing on behalf of opposite party nos.2 to 5, on the other hand, supported the impugned order. It is submitted that section 319(4)(a) mandates that once a person not facing the trial is proceeded against and summoned in terms of section 319 of the Code, proceeding/trial in respect of such persons shall be commenced afresh and the witnesses re-heard. Referring to section 227 of the Code, it is contended that while making consideration thereunder the trial court has to consider the records of the case and documents submitted therewith and if it is found therefrom that there is not sufficient ground for proceeding against the accuseds, the trial court shall be justified in discharging the accuseds and record reasons therefor. Referring to section 209(c) of the Code, it is submitted that records of the case would mean the records which have been committed to the Court of Sessions in terms of the aforesaid provision. It is the contention of learned counsel that consideration of any material beyond the record of the case committed to the Court of Sessions would be an extraneous consideration. It has been emphatically argued 6 that the evidence(s) adduced at the trial was/were taken behind the back of opposite parties and, as such, those evidences cannot be considered while framing the charge(s) and/or making consideration in terms of section 227 of the Code. He relies on 2004 AIR SCW 6813, para 17 and 18 (State of Orissa vs. Debendra Nath Padhi) and 2002(3) PLJR SC) 21 (Shashikant Singh vs. Tarkeshwar Singh). Before this Court proceeds to examine the rival contentions, it would be apposite to notice the relevant provisions of the Code. Chapter XVII of the Code deals with “the charge”. Section 223 reads as under: (a) Persons accused of the same offence committed in the course of the same transaction; (b) xx xx xx xx (c) xx xx xx xx (d) xx xx xx xx (e) xx xx xx xx (f) xx xx xx xx (g) xx xx xx xx Trial before a Court of Sessions is provided in Chapter XVIII. Section 227 under the said Chapter deals with „discharge‟ which is followed by section 228 which deals with „framing of charge‟. Section 227 reads as under: “If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” Chapter XXIII of the Code is captioned as Evidence in inquiries and trial. Section 276 appearing thereunder deals with the 7 record in trial before the Court of Sessions. Section 276(3) states as under: “276(3) The evidence so taken down shall be signed by the Presiding Judge and shall form part of the record.” Chapter XXIV embodies general provisions as to the inquires and trials and sets out various provisions which vest the court with general powers to do justice in particular case. Section 311 of the Code is one of such provisions which enables the court to summon/recall and re-examine a witness for deposing in the case if it is found essential to the just decision of the case. Section 319 of the Code is yet another provision which enables the court to proceed against other persons appearing to be guilty of offence and in that event the said person(s) shall be summoned and tried with the accused already facing the trial. Section 319 of the Code reads as under: “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 the witnesses re-heard; (b) subject to the provisions of clause (a), 8 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.” It is seen from the provisions of law noted above and their placements in the Code that the trial court is vested with general powers to ensure that justice is delivered to a case brought before it. What is paramount is the ends of justice. After all, Courts are meant for imparting justice. Procedures prescribed under the Code are meant to achieve the said goal. Thus, those procedures/provisions cannot be construed in a manner which would render another provision otiose and/or bring about absurd situation. This Court is, therefore, required to interpret those provisions of the Code in a manner where they make a sense and augment the ends of justice and thereby the spirit of the Code and the intention of the framers, the Parliament. The Apex Court was faced with somewhat identical situation in the case of Sashikant Singh vs. Tarkeshwar Singh (supra). As noticed above, both the parties have also placed heavy reliance on the aforesaid judgment of the Hon‟ble Supreme Court. The point which fell for consideration in the aforesaid case was whether the words „tried together with the accused‟ appearing in section 319(1) of the Code would have peremptory effects or would be directory in nature. In the said case, it was found, as a fact, that by the time the matter came up for consideration the trial of the accused(s) already facing the trial had concluded. Hon‟ble Supreme Court was thus required to interpret those words appearing in section 319 of the Code. Considering the circumstances and the relevant provisions of the Code 9 including the scope of the powers conferred on the trial court u/s 319 of the Code, it was found and held that those words appearing in section 319 of the Code were directory in nature. The Supreme Court has found as under in paragraphs 9, 10,11,12,13 and 15 of the said Report. “9. When a statute is passed for the purpose of enabling something to be done, and prescribes the way in which it is to be done, it may be either an absolute enactment or a directory enactment. The difference being that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a direct or enactment be obeyed or fulfilled substantially. No universal rule can be laid down as to whether mandatory enactments shall be considered directory only ore obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. (Craies On Statute Law, 7th Edn., Pages 260-262). 10. The intention of the provision here is that where in the course of any enquiry into or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of section 319(4). The words could be tried together with the accused in Section 319(1), appears to be only directory. „Could be‟ cannot under these circumstances be held to be „must be‟. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly 10 added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court. 11. Where a statute does not consist merely of one enactment, but contains a number of different provisions regulating the manner in which something is to be done, it often happens that some of these provisions are to be treated as being directory only, while others are to be considered absolute and essential; that is to say, some of the provisions may be disregarded without rendering invalid the thing to be done, but others not . (Craies On Statute Law, 7th Edn., Pages 266-267). 12. The mandate of the law of fresh trial is mandatory whereas the mandate that newly added accused could be tried together the accused directory. 13. On facts the Court could not have intended while concluding the trial against Chandra Shekhar Singh, to nullify its earlier order directing issue of warrants against respondent No.1. The construction to be placed on a provision like this has to commend to justice and reason. It has to be reasonable construction to promote the ends of justice. The words „could be tried together with the accused‟ in Section 319(1) cannot be said to be capable of only one construction. If it was so, approach to be adopted would be different since the intention of the Parliament is to be respected despite the consequences of interpretation. There is, however, a scope for two possible constructions. That being the position, a reasonable and commonsense approach deserves to be adopted and preferred rather than a construction that would lead to absurd results of respondent No.1 escaping the trial despite passing of an order against him on Court‟s satisfaction under Section 319(1) and despite the fact that the proceedings against him have to commence afresh. In this view, the fact that trial against Chandra Shekhar Singh has already concluded is of no consequence insofar as respondent No.1 is concerned. 15. A Magistrate is empowered to take cognizance of an offence in the manner provided under Section 190 of the Code. Section 209 enjoins upon a Magistrate to commit the case to the Court of Session when it appears 11 to the Magistrate that the offence is triable exclusively by the Court of Session. Section 193 provides for the power of the Court of Session to take cognizance of any offence. It uses the expression „cognizance of any offence‟ and not that of „offender‟. These three provisions read with Section 319 make it clear that the words „could be tried together with the accused‟ in Section 319 is only for the purpose of finding out where such a person could be put on trial for the offence. Once it is so found, as already stated, Sub- section (4) of Section 319 comes into play. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of Court of original jurisdiction to take cognizance of the offence which could include summoning of the person or persons whose complicity in the commission of crime can, prima facie, be gathered from the material on record. (see Kishun Singh & Ors. Vs. State of Bihar [(1993)2 SCC 16].” Having noticed the view of the Hon‟ble Apex Court in above extracted paragraphs, particularly paragraphs 10 & 13, this Court proposes to deal with the controversy presented in this case. Mr. Madhup has fervently argued that in the light of the mandate of section 319(4(a) of the Code, as interpreted by the Apex Court in the case of Shashikant Singh (Supra), the proceeding/trial in respect of „such persons‟ has to commence afresh. Charge(s) in terms of Chapter XXVII has to be framed and the accused(s) proposed to be proceeded against and tried together with others already facing the trial has to be heard on the point of discharge under section 227 of the code. While making such consideration, on an application filed in this regard, the trial court is required to consider only the records of the case and documents submitted therewith and not the evidence adduced at the trial. Records of the case would mean the records as explained in section 209 of the Code. 12 Mr. Kumar, on the other hand, has taken a stand that the trial court has to consider only the evidence adduced at the trial and frame the charges and proceed with the trial after recalling and re-hearing the witnesses so far examined at the trial. Both the parties, however, are in agreement that charges need to be framed against the accuseds summoned to face the trial before proceeding further in the matter. Before I proceed further, this Court again reminds itself of the incongruous and unusual situation brought about by the two orders passed by trial court. By order dated 05.02.2005, on a consideration of oral evidence adduced at the trial, o.p. nos. 2 to 5 were proceeded against and summoned to face trial as sufficient evidence was found showing their complicity in the crime. Said order remained unchallenged. Subsequently, while hearing on the point of discharge, the same court considered the materials on record including the statements recorded under section 161 of the Code and other documents connected therewith and found that they were insufficient to frame the charge(s) and, accordingly, discharged o.p.nos.2 to 5 from the charges without a trial. Once the trial court on perusal of evidence adduced at the trial is convinced that there is sufficient evidence on record depicting complicity of the persons in crime who is/are not facing the trial, it may proceed against such persons and summon him/them to face the trial. In that event, said persons shall be tried together with the accused(s) already facing the trial. Section 223 of the Code enables the court to charge jointly those persons accused of the same offence committed in course of same transaction. Section 276(3) of the Code declares that 13 evidence taken down at the trial shall be signed by the Presiding Judge and shall form part of the record. Every provision of the Code and the manner it is couched has significance and the court should extend them due importance while interpreting them. It is seen hereinabove that a person proceeded against in terms of section 319 of the Code can be charged jointly with others already facing the trial. There is no dispute at the Bar that while exercising jurisdiction under section 319 of the Code the trial court has to confine its consideration to the evidence adduced at the trial. Oral evidence adduced in the trial forms part of the record. In that view of the matter, in a case where a person, not facing trial, is proceeded against and summoned to face the trial together with other accused(s) already facing the trial, the trial court has to proceed afresh. Fresh charge shall be framed and/or he may be charged jointly with others already facing the trial and thereafter proceed to re-hear/re-examine the witnesses already examined. While framing the charge(s), trial court would consider the evidence adduced at the trial which formed part of the record of the case. To conclude, this Court holds that while making consideration on the point of charge/discharge, the trial court shall confine its consideration only to the evidence brought on record at the trial. Any consideration of the material beyond that would vitiate the order. In the present case, learned trial