Saraba Reddy Vs. Puthur Rami Reddy and Anr  Insc 517 (7 May 2007)
Dr. ARIJIT PASAYAT, P.K. BALASUBRAMANYAN & D.K. JAIN
J U D G M E N T CRIMINAL APPEAL NO. 689 of 2007 (Arising out of SLP (Crl.)
No.766 of 2006) Dr. ARIJIT PASAYAT, J 1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge
of the Andhra Pradesh High Court dismissing the revision petitions filed by the
appellant and the State questioning the correctness of the order passed by the
learned VIth Additional Sessions Judge, Gooty, (Fast Track Court), Gooty.
3. Background facts as projected by the appellant in a nutshell are as
4. On 26.07.1997 at about 6 p.m., while Yeddula Siva Prasad Reddy
(hereinafter referred to as the 'deceased') was coming on a motorbike, accused
persons armed with deadly weapons, attacked and killed him. Appellant who was
examined as P.W.1 lodged complaint with the police and investigation was taken up.
On an application made by the respondents in Crl.R.C.No.1551 of 2004, the
Superintendent of Police, Anantapur District got the matter investigated by the
Deputy Superintendent of Police, Guntakal and on the basis of his report, names
of the present respondents were deleted from the array of accused. They were
not included in the charge sheet filed on 07.11.1997. Thereafter, the case was
committed to Sessions Court on 10.11.1997 and numbered as S.C.No.378 of 1998.
There was delay in progress of the trial.
P.W.1 was examined on 7.7.2004. Thereafter, a petition in terms of Section
319 of the Code of Criminal Procedure, 1973 (in short the 'Code') was filed for
arraying the present respondents as accused. The learned Sessions Judge
dismissed the petition by order, giving a somewhat conclusive finding that the
present respondents have not participated in the offence.
5. The trial Court rejected the application made in terms of Section 319 of
the Code primarily on the ground that the plea of alibi raised by the
respondent was investigated by the Deputy Superintendent of Police under the
instructions of the Superintendent of Police and on his satisfying about the
substance in the plea of accused about their non-involvement.
directed the omission of their names. Though their names were deleted from
the array of accused their names were found in the FIR and statement of
witnesses. Assailing the same, firstly the State filed Crl.R.C.No.1476 of 2004
and thereafter appellant (PW-1 the de facto complainant) filed Crl.R.C.
No.1551 of 2004 before the High Court. The High Court found no infirmity in
the trial Court's order and additionally found that the charge sheet was filed
on 7.11.1997. Neither the public prosecutor nor the appellant took any steps
immediately. Only on 7.7.2004 an application was filed. The High Court found
that first of all the appellant and the public prosecutor should not have kept
quiet for such a long period of about 7 years. The fact that they kept silent
for such a long period, according to High Court, shows that the plea of alibi
which was found to be true by the Special Investigating Officer who enquired
into that aspect was true. The High Court also accepted that there was force in
the contention that on account of political factions the respondents were
falsely implicated and on account of change of government, the public
prosecutor had filed the petition. Since the Deputy Superintendent of Police
had found the plea of alibi to be correct, the fact that the witnesses during
trial stated otherwise was really of no consequence.
6. In support of the appeal, learned counsel for the appellant submitted
that the orders of the trial Court as well as that of the High Court cannot be
maintained. The alleged occurrence took place on 26.7.1997. The charge sheet
was filed on 7.11.1997 and charges were framed on 25.8.2003. The delay in
framing of charges cannot in any way be attributed to the complainant. PW-1 was
examined on 7.7.2004 and immediately after his evidence was recorded, the
application in terms of Section 319 of the Code was filed. There was,
therefore, no scope for the High Court to hold that there was delay in making
the application. Before the charges were framed there was no scope for any
application being filed in terms of Section 319 of the Code.
7. In response, learned counsel for the respondents submitted that after a
thorough investigation, the Investigating Officer had accepted the plea of
alibi. The High Court was justified in rejecting the prayer made by the
prosecution and the complainant.
8. We find that the High Court has failed to notice the fact that there was
in fact no delay in making the application.
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 frustrated. Though it
cannot always be the satisfaction of the Investigating Officer which is to
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.
9. The scope and ambit of Sec. 319 of the Code have been elucidated in
several decisions of this Court. In Joginder Singh and another v. State of Punjab
and another (AIR 1979 SC 339), it was observed:
"6. A plain reading of Sec. 319 (1) which occurs in Chapter XXIV
dealing with general provisions as to inquiries and trials, clearly shows that
it applies to all the Courts including a Sessions Court and as such a Sessions
Court will have the power to add any person, not being the accused before it,
but against whom there appears during trial sufficient evidence indicating his
involvement in the offence, as an accused and direct him to be tried along with
the other accused;."
10. It was further observed in paragraph 9:
"9. As regards the contention that the phrase 'any person not being the
accused' occurred in Sec. 319 excludes from its operation an accused who has
been released by the police under Sec. 169 of the Code and has been shown in
column No. 2 of the charge sheet, the contention has merely to be stated to be
rejected. The said expression clearly covers any person who is not being tried
already by the Court and the very purpose of enacting such a provision like
Sec. 319(1) clearly shows that even persons who have been dropped by the police
during investigation but against whom evidence showing their involvement in the
offence comes before the Criminal Court are included in the said
11. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. (1983
(1) SCC 2) after referring to the decision in Joginder Singh's case (supra), it
was observed:- "19. 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 un 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 person 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
respondent Nos. 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."
12. On a careful reading of Sec. 319 of the Code as well as the aforesaid
two decisions, it becomes clear that 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 F.I.R. 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 materials 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. Of course, as evident from the decision
reported in Sohan Lal and others v.
State of Rajasthan, (AIR 1990 SC 2158) the position of an accused who has
been discharged stands on a different footing.
13. 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 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
that 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.
14. The above position was highlighted in Lok Ram v. Nihal Singh and Anr. (2006
(10) SCC 192).
15. The conclusion of the High Court after calling for the records from the
Investigating Officer to satisfy itself and deciding whether version of PW-1
was to be accepted or not is a very unusual procedure adopted.
16. In the result, the High Court's order is clearly indefensible and is set
aside. The trial Court shall take steps for proceeding against the respondents
in terms of Section 319 of the Code. We make it clear that by allowing this
appeal we are not expressing any opinion on the merits of the case.