1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 22 of 2011 & Cr.MMO No.119 of 2011. Judgment reserved on 17.10.2011. Date of decision: 16.11.2011. 1. Cr.MMO No. 22 of 2011. Sarwar Hussain & anr. ......Petitioners. Versus State of H.P. ......Respondent. 2.Cr.MMO No. 119 of 2011. State of H.P. .....Petitioner. Versus Hussan Ali & anr. .....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioners : Mr. Sanjeev Kuthiala, Advocate. ( In Cr.MMO No. 22 of 2011) : Ms. Ruma Kaushik, Addl.A.G.with Mr. J.S.Rana, Asstt. A.G. ( In Cr.MMO No. 119 of 2011) For the Respondent : Ms. Ruma Kaushik, Addl.A.G.with Mr. J.S.Rana, Asstt. A.G. ( In Cr.MMO No. 22 of 2011) : Mr.M.S.Guleria, Advocate. (In Cr.MMO No.22 of 2011 for proposed respondent Noor Mohamad alias Noor Ahmed and in Cr.MMO No. 119 of 2011 for respondent No.2.) : Mr. N.K.Sood, Advocate,for the applicant.( In Cr.MMO No. 22 of 2011) Kuldip Singh , Judge. This judgment shall dispose of Cr.MMO No. 22 of 2011 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 and Cr.MMO No. 119 of 2011 as in both the petitions the order dated 23.02.2011 passed by learned Additional Sessions Judge, Mandi, in Cr.M.P. No. 18 of 2011 in S.T. No.6 of 2005 has been assailed. Cr.MMO No. 22 of 2011 has been filed by Sarwar Hussain and Talib Hussain whereas Cr.MMO No. 119 of 2011 has been filed by State. 2. The facts,in brief, are that FIR NO. 292 dated 01.11.2004 has been registered at Police Station,Balh, under Sections 302, 147, 148, 149, 323 and 506 IPC at the instance of Sadiq Mohammad, son of deceased Nasir Hussain. The allegations are that certain persons numbering around 12 trespassed into the fields of Nasir Hussain, Sarwar Hussain and Talib Hussain. The said persons gave beatings to Nasir Hussain, Sarwar Hussain and Talib Hussain. The assailants were armed with 'dandas', axes, sword. Nasir Hussain, Sarwar Hussain and Talib Hussain sustained grievous injuries. They were taken to C.H.C., Ratti. Nasir Hussain declared dead by the doctor, Sarwar Hussain and Talib Hussain were referred to Zonal Hospital, Mandi. Talib Hussain was further referred to P.G.I., Chandigarh. Sarwar Hussain and Talib Husssain were in hospital, therefore, the complainant, who is the son of the deceased Nasir Hussain got the complaint registered at Police Station and gave the names of the persons, who were known to him. 3. It has been alleged that the names of all persons, who had been named by the complainant were not reflected in the FIR such as Noor Mohamad alias Noor Ahmed son of Fateh Mohammad and Hussan Ali alias Hafan Deen son of Fateh Mohammad. The complainant along with his brother Mansab Ali were the eye-witnesses to the occurrence. The statement of Sarwar Hussain was recorded under Section 161 3 Cr.P.C. also indicates names of aggressors Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. The petitioner Talib Hussain in his statement under Section 161 Cr.P.C on 17.11.2004 has also given the names of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed, who inflicted blows upon the injured and deceased along with other aggressors, as a result of which, Nasir Mohammad died. 4. The lapses of the Investigating Officer surfaced during trial, accordingly prosecution filed an application under Section 319 Cr.P.C. for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. PW-1 Sadiq Mohammad and PW-3 Mansab Ali in their statements have named Hussan Ali alias Hafan Deen, Noor Mohamad alias Noor Ahmed, who also gave blows to the deceased as also to the injured petitioners. The petitioners in their statements in the Court on 23.08.2005 had also named Hussan Ali alias Hafan Deen, Noor Mohamad alias Noor Ahmed. The learned Additional Sessions Judge, however, dismissed the application under Section 319 Cr.P.C. on 23.02.2011. The learned Additional Sessions Judge has not appreciated that in view of statements of PW-1, PW-3, PW-4 and PW-5 the involvement of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed in the commission of the offence has been established. 5. The learned Court below has erred in dismissing the application under Section 319 Cr.P.C on the ground that evidence had already been recorded, the case was old and , therefore, impleadment of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed would not be proper. The Court below has not properly appreciated the 4 judgments of the Supreme Court referred to in the impugned order. 6. The Court below has not appreciated that Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed participated in the commission of offence resulting in the death of Nasir Hussain and causing grievous injuries with deadly weapons to others. The Investigating Officer in order to save those persons had not impleaded them as accused nor had shown them in column No.2 of the challan despite the statements of witnesses under Section 161 Cr.P.C. 7. The respondent filed reply. It has been stated that during the course of investigation, the complainant did not make any reference about the participation of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed and as such their names did not figure in the FIR. The involvement of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed was disclosed by the complainant and other witnesses during the course of the investigation which was ignored being afterthought as there was no corroborating evidence on the record. It has been submitted that application under Section 319 Cr.P.C. has been filed for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as during the course of the trial inculpating evidence has come on record that they have participated in the commission of offence. In the reply, ultimately it has been prayed that appropriate orders may be passed. 8. Pervej Mohammad filed Cr.M.P. No. 462 of 2011 in Cr.MMO No. 22 of 2011 for impleading him as party or granting an opportunity to him for hearing. It has been stated that on statement of PW-1 Sadiq Mohammad, FIR No. 292/2004 Ex. PW8/A has been 5 registered. After investigation of the case, challan was filed in the Court and the applicant along with Anwar, Rehmat, Ashraf Mohammad, Ms Shamshad, Ms.Shabana, Ms. Shabnam and Ms. Rozina were sent for trial in Sessions Trial No. 6/2005 for allegedly causing murder of Nasir Hussain and causing grievous injuries to Sarwar Hussain, Talib Hussain, Sadiq Mohammad and PW-3 Mansab Ali. 9. It has been stated that prosecution earlier filed an application in December, 2005, and vide order dated 29.05.2006, the trial Court has impleaded Mst.Dil Khursheed and Ms. Sabina as accused. 10. It has also been stated that out of the same incident another FIR No. 293/2004 was also registered against the complainant party in which Sarwar Hussain, Talib Hussain, Mansab Ali, Sadiq Mohammad, Mst. Hasan Bibi,Gulshad, Shakira Bibi, Naseera Bibi and others are facing trial being Sessions Trial No. 7/2006 under Sections 326, 327, 506, 147, 148, 324 IPC. In both the cases evidence is complete. Statements of accused under Section 313 Cr.P.C. have been recorded, defence evidence also stands recorded and both the cases are at final arguments stage. 11. In Sessions Trial No. 6/2005, an application dated 19.04.2010 under Section 319 Cr.P.C. was filed by the prosecution for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. At that stage, all the witnesses except for Investigating Officer had been examined. The said application has been dismissed by the trial Court on 23.02.2011. Thereafter, statement of Investigating Officer PW-14 Uttam Singh was also recorded on 01.03.2011 and statements of accused have been recorded under Section 313 Cr.P.C. and the accused 6 have also led the defence evidence. 12. It has been stated that in case Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed are impleaded as accused, then as per mandate of Section 319(4) Cr.P.C., it will result in de novo trial from the stage of presentation of challan. The entire exercise which has been done till now will have to be repeated on impleadment of new accused. This will deny to applicant his fundamental right of speedy trial for no fault on his part. The alleged incident took place on 01.11.2004. The Court earlier impleaded some accused on 29.05.2006, but now the prosecution has moved another application for impleading new accused. It has also been stated that in case impugned order dated 23.02.2011 is set aside and application under Section 319 Cr.P.C. is allowed impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed, in that case ordering of the separate trial for newly impleaded accused will not cause any prejudice to either side. 13. Cr.MMO No. 119 of 2011 has been filed by the State for setting aside order dated 23.02.2011 passed by learned Additional Sessions Judge, Mandi, in Cr.M.P.No. 18 of 2011 in Sessions Trial No. 6/2005. It has been stated that during the course of the trial PW-1 Sadiq Mohammad and PW-3 Mansab Ali eye witnesses have categorically deposed on oath that Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed were present on the spot and had also actively participated in the commission of offence. The other witnesses such as Mansoor Ali, Talib Hussain and Sarwar Hussain have also stated in their statements on oath in the Court regarding the participation of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. The trial Court 7 has erred in dismissing the application under Section 319 Cr.P.C. on 23.02.2011 even in the presence of positive evidence on record showing commission of offence by Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. 14. It has been stated that statements of PW-1, PW-3, PW-4 and PW-5 have not been properly appreciated. The case law referred to in the impugned order is not applicable in the facts and circumstances of the case. The Court below has erred in rejecting the application on the ground that case is old. It has not been appreciated that court of learned Additional Sessions Judge, Mandi, remained vacant from 11.11.2008 to 25.10.2009. The State ultimately prayed for setting aside the impugned order. 15. I have heard the learned counsel for the parties and have also gone through the record. On 3.12.2005 the State had filed an application under Section 319 Cr.P.C. for impleading Mst.Dilkhursheed and Ms. Sabina as accused. It has been stated that sufficient evidence has come on record against Mst. Dilkhursheed and Ms. Sabina . The eye witnesses Sadiq Mohammad, Mansab Ali, Sarwar Hussain, Talib Hussain have specifically stated regarding the participation of Mst. Dilkhursheed and Ms. Sabina . This application was opposed. On 29.5.2006 the application was allowed and Mst. Dilkhursheed and Ms. Sabina were impleaded as co-accused in the case. The prosecution filed another application under Section 319 Cr.P.C. for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as co- accused in the case. In the application no statement of any specific witness has been relied for impleading Hussan Ali alias Hafan Deen and 8 Noor Mohamad alias Noor Ahmed as co-accused. This application was opposed and dismissed by learned Additional Sessions Judge on 23.2.2011. 16. In both the petitions, the petitioners have relied statements of PW-1, PW-3, PW-4 and PW-5 for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as co-accused in the case. It is also the case of the petitioners that in fact Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed were named during investigation also but the investigating officer intentionally did not implead them as accused in the case. It has been submitted that in presence of evidence on record the Court below has erred in not impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as co-accused in the case. The Court below has erred in rejecting the impleadment of these two persons as co-accused on the grounds that the case is old and evidence is contradictory. 17. On the other hand, it has been contended that State in reply to Cr.MMO No. 22 of 2011 has stated that involvement of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed was disclosed by the witnesses during the course of investigation which was ignored being after thought as there was no corroborating evidence on record. The State even after recording of the evidence filed application for impleadment of Mst. Dilkhursheed and Ms. Sabina. The statements of PW-1 to PW-5 were recorded on 23.8.2005, the application for impleadment of Mst. Dilkhursheed and Ms. Sabina was filed on 3.12.2005. There is no explanation why on 3.12.2005 the State did not think of filing application for impleadment of Hussan Ali alias Hafan 9 Deen and Noor Mohamad alias Noor Ahmed on the basis of evidence which was recorded till then. It has been contended that the State is aware that once the application for impleadment of any accused is allowed then denovo trial starts on the impleadment of new accused. It has been contended that the State is intentionally filing application after application under Section 319 Cr.P.C. for harassing the accused in Sessions Trial No. 6 of 2005. The contention has been raised that mere naming of a person in the evidence as perpetrator of the crime is not enough what is required is whether such naming prima-facie will lead to conviction of the persons so named and as such, to be impleaded as co- accused. The stage of the trial is an important factor so also the number of witnesses already examined. It has been stated that the Court below has rightly dismissed the application as application does not fulfill the various parameters laid down for allowing application under Section 319 Cr.P.C.for impleadment of co-accused. 18. In view of rival contentions, it is necessary to refer to some case law. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others (1983) 1 SCC 1, the Supreme Court has held as follows:- “In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. 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 cognizance against the other persons 10 against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.” 19. The Supreme Court in Sohan Lal and others vs State of Rajasthan (1990) 4 SCC 580 has held as follows:- “The crucial words in the section are, 'any person not being the accused'. This section empowers the court to proceed against persons not being the accused appearing to be guilty of offence. Sub-sections (1) and (2) of this section provide for a situation when a court hearing a case against certain accused person finds from the evidence that some person or persons , other than the accused before it is or are also connected in this very offence or any connected offence; and it empowers the court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which the cog was first taken of the offence against the earlier accused. It naturally deals with a matter arising from the course of the proceedings already initiated. The scope of the section is wide enough to include cases instituted on private complaint.” 20. The Supreme Court in Michael Machado and others vs. Central Bureau of Investigation and another (2000) 3 SCC 262 has held as follows: 11 “11. The basic requirements for invoking the above sections 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 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.” The Supreme Court further held : “14. The court while deciding whether to invoke the power under section 319 of the Code, must 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. The whole proceedings must be recommended from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the 12 stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.” 21. The learned counsel for the applicant in Cr.M.P.No. 462 of 2011 in Cr.MMO No. 22 of 2011 has relied Shashikant Singh vs. Tarkeshwar Singh and another (2002) 5 SCC 738 in support of his contention that even if Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed are impleaded as co-accused , then they should be tried separately and not with the present accused in Sessions Trial No.6 of 2005 as the trial is almost over. He has submitted that the Supreme Court has held that the mandate of law of fresh trial is mandatory whereas the mandate that newly added accused could be tried with the accused is directory. 22. The Supreme Court in Krishnappa vs. State of Karnataka (2004) 7 SCC 792 has noticed Municipal Corporation of Delhi and Michael Machado and others (supra) and held as follows:- “Applying the test as aforesaid to the facts of the present case, in our view, the trial Magistrate is right in rejecting the application. The incident was of the year 1993. Seventeen witnesses had been examined. The statements of the accused under Section 313 Cr.P.C. had been recorded. 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 13 not be held that the discretion was illegally exercised by the trial Magistrate so as to call for interference in exercise of revisional jurisdiction by the High Court.” 23. In Kavuluri Vivekananda Reddy and another vs. State of Andhra Pradesh and another (2005) 12 SCC 432, it has been held as follows:- “We have perused the statements of these witnesses and find that in relation to the alleged instigation by the appellants, only general statements have been made. On the basis of the said general statements qua the appellants, it is evident that the courts below committed serious illegality in proceeding to add the appellants herein as accused in exercise of power under Section 319 of the Code. The manner of exercise of the power under the said provision has been explained by this Court in Krishnappa v. State of Karnataka (2004) 7 SCC 792 wherein it has been held that it has to be kept in view that the power under Section 319 of the Code is discretionary and has to be exercised only to achieve criminal justice and that the court should not turn against another whenever it comes across evidence connecting that other person also with the offence. The provisions of Section 319 of the Code are required to be used sparingly. The summoning of the appellants after the expiry of eight years, on the facts and circumstances of the case and having regard to the nature of the depositions of the witnesses which have been examined by us, is not called for. In this view, we set aside the impugned orders and allow the criminal appeal.” 24. In Y. Saraba Reddy vs. Puthur Rami Reddy and another (2007) 4 SCC 773, it has been held as follows: “We find that the High Court has failed to notice the fact that there was in fact no delay in making the application. 14 Though the charge-sheet was filed on 7.11.1997, charges were framed on 25.8.2003. The order-sheet shows that the delay cannot in any way be attributed to the complainant. There is a basic fallacy in the approach of the High Court. It called for the file to be satisfied as to whether the enquiry conducted was to be preferred to the evidence of PW-1. If the satisfaction of the investigating officer or supervising officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrate. Though it cannot always be the satisfaction of the investigating officer which is to be prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the code it was required to be analysed. The conclusion that the IO's satisfaction should be given primacy is unsustainable. The High Court was not justified in holding that there was belated approach.” 25. The Supreme Court in Guriya alias Tabassum Tauquir and others vs. State of Bihar and another (2007) 8 SCC 224 has held as follows:- “As noted above, PWs 1, 2 and 3 have stated about the presence of the appellants without any definite role being ascribed to them in their evidence recorded on 16.4.2001, 8.1.2002 and 29.4.2002. If really the complainant had any grievance about the appellants being not made accused, that could have, at the most, be done immediately after the recording of