IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Hardev Vs. State of Rajasthan (S. B. Criminal Revision Petition No.1396/2009) S. B. Criminal Revision Petition under Section 397 read with 401 Cr.P.C. against the order dated 4-9-2009 passed by Additional Sessions Judge, (Fast Track No.2) Bharatpur in Sessions Case No.29/2009 whereby the learned Judge has issued process against the petitioner under section 319 Cr.P.C.. Date of Judgment: March 31st, 2010 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. D.G. Chaturvedi, for the petitioner. Mr. Javed Chaudhary, Public Prosecutor for the State. Mr. Biri singh, for the complainant. BY THE COURT: REPORTABLE Aggrieved by the order dated 4-9-2009, passed by the learned Additional Sessions Judge, Fast Track No.2, Bharatpur, whereby the learned Judge has accepted the application under Section 319 Cr.P.C. and issued process against the petitioner, the petitioner has challenged the same before this Court. 2. Brief facts of the case are that on 24-12-2008 on the basis of parcha bayan of Lakhan Singh, a FIR, FIR No.521/2008, was registered at Police Station Nadbai, District Bharatpur for the offences under Sections 147, 148, 149, 341, 323, and 307 IPC. However, after the death of Lakhan Singh, on the same day, offence under Section 302 IPC was added. After investigation, a chargesheet was submitted against four persons namely, Chatar Singh, Pooran Singh, Jaideo Singh, and Narendra Singh by the police. Investigation against the present petitioner was kept pending under Section 173 (8) Cr.P.C. During the course of trial, the learned trial Judge recorded testimony of seven witnesses, P.W.1 to P.W.7. During the course of trial, Sheodan Singh, the complainant, submitted an application under Section 319 Cr.P.C., wherein he claimed that sufficient evidence has come on record during trial to make out a strong case against the present petitioner for his involvement in the alleged offence. Vide order dated 4-9-2009, the learned trial Judge proceeded against the petitioner. Hence, this petition before this Court. 3. Mr. Chaturvedi, the learned counsel for the petitioner has raised various contentions: firstly, the FIR cannot be registered on the basis of statement recorded under Section 161 Cr.P.C. Secondly, the statement of Lakhan Singh, recorded under Section 161 Cr.P.C. is suspect, as the statement was merely recorded 45 minutes prior to his death. The said statement cannot be treated as “a dying declaration”. Therefore, it could not be used for invoking power under section 319 Cr.P.C. Thirdly, the learned trial Judge has erred in concluding that the deceased was in a position to give statement. According to learned counsel, the deceased was not in a position to give statement, as the dying declaration was recorded just prior to his death. Fourthly, despite the existence of parcha bayan in the chargesheet, the trial court did not take cognizance against the petitioner. Hence, from the very beginning the trial court was convinced that no case is made out against the petitioner. Therefore, the trial court cannot invoke its power under Section 319 Cr.P.C. at a later stage. Fifthly, the trial court should have examined the genuineness of the dying declaration prior to invoking its power under Section 319 Cr.P.C. Sixthly, but for the dying declaration, no fresh evidence has come into existence. Therefore, the power under Section 319 Cr.P.C. has been invoked illegally. Lastly, since power under Section 319 Cr.P.C. is a vast one, it should be exercised sparingly. In fact, the said power should not have been exercised until and unless all evidence was recorded and trial was completed. 4. On the other hand, Mr. Biri Singh, the learned counsel for the complainant, has contended that there is no bar in law for registering a FIR on the basis of statement recorded under section 161 Cr.P.C. In fact, once a statement reveals the commission of a cognizable offence, by known or unknown person, the police is legally bound to register a FIR. Since the statement given by Lakhan Singh revealed commission of cognizable offences by known persons, the police was justified in registering a FIR against all the five persons. Moreover, in his statement itself Lakhan Singh had claimed that the present petitioner, Hardev, was riding a motor cycle, and he along with other co-accused persons surrounded him and assaulted him with “Saria” (iron rods). Consequently, his hands and feet were broken. Subsequently, due to the said injuries, Lakhan Singh died. Thus, the statement of Lakhan Singh not only revealed the commission of cognizable offences, but also revealed the names of the culprits, and also informed the police about the weapon used for the commission of crime. Since sufficient information existed, the said statement can be used and should have been used for registering a FIR. Secondly, the statement of Lakhan Singh can be treated as dying declaration, for it reveals the cause of his death. Moreso, it discloses the name of culprits, who have caused his death. Thus, the statement does fall under section 32 (1) of the Evidence Act, which deals with dying declaration. Therefore, the learned trial court is justified in treating the statement as dying declaration. Thirdly, the veracity or validity of the dying declaration can be adjudged only during the course of trial. At the moment of proceeding against the accused under section 319 Cr.P.C., the trial court is not required to first test the veracity or validity of the dying declaration. Fourthly, the police had not submitted the chargesheet against the present petitioner. In fact, the police had kept the investigation pending against the present petitioner. Therefore, the learned counsel for the petitioner is not justified in claiming that despite the submission of chargesheet, despite the existence of dying declaration, the trial court did not take cognizance against the present petitioner. Fifthly, once the evidence had started, tricking in, once it was noticed by the court that the deceased had named the petitioner in the dying declaration, a strong prima facie case did exist for the court to proceed against the petitioner. Lastly, criminal justice system is meant not only for acquitting the innocent person, but most importantly for punishing the perpetrator of crime. Considering the fact that a murder had been committed, considering the fact that the petitioner was alleged to be one of the perpetrators of the crime, the power under Section 319 Cr.P.C. has rightly been invoked in order to put the petitioner on trial. Hence, the learned Public Prosecutor, and the learned counsel for the complainant have supported the impugned order. 5. Heard the learned counsel for the parties, considered the material available on record, and examined the impugned order. 6. Section 319 Cr.P.C. 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 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.” In Annamma Cherian Vs. State of Karala [1990 Cr.L.J. 1796] Kerala High Court (Hon'ble K.G. Balakrishnan J. as His Lordship then was) had occasion to analyse Section 319 Cr.P.C. It was observed as under:- (Para 4) “Section 319 says that if in the course of inquiry into, or trial of, an offence, it appears from the evidence that any person other than the accused who are already on party array 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. Sub-sec.(2) of S.319 further says that if such person is not attending the court the Court may arrest him and summon him for the purpose of proceeding against him. Sub-sec.(3) of S.319 empowers the Court to detain such person for the purpose of any inquiry or trial of the offence which he appears to have committed. Sub- sec.4(1)(a) of S.319 says that proceedings in respect of the person who is newly added as the accused shall be commenced afresh and the witnesses be re-heard. Sub- sec.4(1)(b) of S.319 raises a legal fiction that the case may proceed against the newly added accused as if such person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” In Guriya @ Tabassum Tauquir Vs. State of Bihar [J.T. 2007 (11) SC 438] the Apex Court had occasion to analyze Section 319 Cr.P.C. and it was observed as under:- “Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates evidence of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.” Section 319 CrPC was also subject matter in Y.Saraba Reddy Vs. Puthur Rami Reddu [J.T. 2007(6) SC 460] and the Apex Court propounded as follows:- (Para 12) “The trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of material available in the charge sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence.” (Emphasis Supplied) A bare look at Section 319 Cr.P.C. reveals that it empowers a court to summon a person if from the evidence produced before the court, it appears that a person has committed an offence, and if the said person has not been charge sheeted by the investigating agency. 7. Undoubtedly, the power under Section 319 Cr.P.C. is vast one. Although vast power should be exercised sparingly, but while exercising the power, the trial court should be aware of the very purpose for which the courts have been established. Although every person is presumed to be innocent, but it is the duty of the trial court to adjudge the innocence or the guilt of the person. In grave offences, in case there is sufficient evidence to indicate or to point towards the involvement of a person, who has not been chargesheeted by the police, ordinarily the court should proceed against him. The guilt and involvement of a person in grave offences should not be overlooked on the basis of hyper-technicalities and should not be ignored by myopic vision. For, the purpose of criminal justice system is to protect the society from those persons who violate the law and who pose a threat to the society at large. The protection of the society from offenders is foundation, or raison d'etre (reason to be) of the criminal courts. Therefore, if there is sufficient evidence against a person, the trial court would be justified in proceeding against such a person. 8. Criminal Justice System has been considered by the Apex Court in the case of Rajendra Singh Vs. State of U.P. (2007) 3 SCC (Cri) 375 and observed as under:- The power under Section 319 Cr.P.C. is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purpose of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that Cr.P.C. has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by Section 319 Cr.P.C. It is a salutary power enabling the discharge of a court's obligation to the society to bring to book all those guilty of a crime. 9. While applying its judicious mind on an application under Section 319 Cr.P.C., the trial court cannot go into microscopic discussion of the evidence. It is required to see the existence of a strong prima facie case against the alleged accused. At the initial stage of proceeding against the person, the trial court is not concerned with the issue whether the trial would conclude with a conviction or not. Since the provision of Section 319 (4) (a) envisages a fresh trial for the newly added accused, fresh evidence needs to be recorded, the evidence so recorded has to be discussed and analyzed by the trial court. Thus the trial court is not required to meticulously discuss the evidence while exercising the power under section 319 Cr.P.C. 10. In the present case, Lakhan Singh had clearly revealed in his statement under section 161 Cr.P.C. that the petitioner, along with four others, had assaulted him with Saria. Thus, involvement of the petitioner is apparent. There is no bar in law that the said statement cannot be used for registering FIR. In fact according to section 154 Cr.P.C. the moment the police receives information about commission of a cognizable offence, by known or unknown person, the police is legally bound to register a FIR. In the present case, the statement of Lakhan Singh not only revealed the commission of a cognizable offence, but it also revealed the name of culprits and the weapon used by them for assaulting him. Thus, the police was certainly justified in registering a FIR. Hence, the first contention raised by the learned counsel for the petitioner is without merit. 11. No universal principle can be laid down on the issue whether a person is competent enough to give statement prior to his death or not. A person's ability to give statement depends on various factors about which evidence has to be led during the course of the trial. Therefore, the learned counsel for the petitioner is not justified in claiming that a person is incapable of giving statement just 45 minutes prior to his death. In the present case, according to Dr. Ramesh Kumar (P.W.1) Lakhan Singh was certainly in a position to comprehend the questions put to him and was capable of answering them. Bharat Singh, ASI (P.W.2), who recorded the statement of Lakhan Singh, has stated that Lakhan Singh was in his senses when his statement was recorded. Thus, sufficient evidence does exist to prima facie establish the veracity of the dying declaration. Therefore, the learned Judge is certainly justified in summoning the petitioner. 12. At the stage of Section 319 Cr.P.C., there is no reason to disbelieve the veracity and validity of the dying declaration. Whether the dying declaration is genuine or not is to be adjudged on the basis of testimony of the Doctor and of the ASI. Both the prosecution and defence would have ample opportunities to examine and cross- examine the witnesses with regard to veracity and validity of the dying declaration. Therefore, the trial court is not required to adjudge the genuineness of the dying declaration at the stage of Section 319 Cr.P.C. That is a task which the trial court has to perform after placing the petitioner on trial. Hence, the contention that the trial court should have gone into truthfulness of the dying declaration at the stage of dealing with an application under Section 319 Cr.P.C. is unacceptable. 13. Although the dying declaration did exist along with the charge sheet, the police had kept the investigation pending against the petitioner under section 173 (8) Cr.P.C. Since the police did not submit a negative final report in favour of the petitioner, since the police kept the investigation pending against the petitioner, therefore, obviously the police was also convinced that the petitioner is prima facie involved in the alleged offences. Thus, Mr. Chaturvedi is not justified in claiming that despite existence of dying declaration, the trial court did not take cognizance against the petitioner. In fact, once the prima facie evidence with regard to genuineness of dying declaration had come in, once the application under Section 319 Cr.P.C. was moved, the learned trial Judge was legally justified in proceeding against the present petitioner. 14. Mr. Chaturvedi, is also unjustified in claiming that no fresh evidence had come in against the petitioner during the course of trial. Although it is true that no eyewitness has been examined, but the fact remains that the trial court could act on the alleged dying declaration after the evidence of Bharat Singh, ASI was recorded. Moreover, the Doctor Ramesh Kumar P.W.1 has also testified about Lakhan Singh's ability to give the statement. Thus, “fresh evidence” about the capacity of Lakhan Singh had come in during the course of trial. Therefore, the contention raised by Mr. Chaturvedi is without merit. 15. Mr. Chaturvedi, has suggested that application under Section 319 Cr.P.C. should have been decided after completion of the trial is also unacceptable. For, Section 319 (4) (a) prescribes for a denovo trial for the newly added accused. It would be in the fitness of thing to add the accused, and to record the evidence against him during the continuation of original trial against other co-accused. In case denovo trial were to commence after the completion of original trial, valuable time of the court would be wasted in re-recording the entire evidence. Considering the burden of litigations on the trial court, the trial court has to save its precious time. Therefore, the suggestion made by Mr. Chaturvedi is unacceptable. 16. Considering the fact that murder was committed, considering the fact that the deceased was allegedly assaulted by the petitioner, considering the fact that the dying declaration has been proved prima facie by P.W.1 and P.W.2, sufficient prima facie case does exist against the present petitioner. Hence, there is neither any illegality, nor any perversity in the impugned order. 17. Therefore, the revision petition being devoid of merit is, hereby, dismissed. ( R.S. CHAUHAN ) J. arn/