Rakesh
& Anr Vs. State of Haryana [2001] Insc 341 (25 July 2001)
S.N.Variava,
M.B.Shah Shah, J.
Special Leave Petition (crl.) 395 of 2001
Leave
granted.
For
deciding the question involved, facts are - on 16.3.1998, Shri Sat Pal, father
of the prosecutrix Manju Bala lodged an FIR at police station Gharaunda,
District Karnal, Haryana under Sections 363, 366 and 376 IPC on the allegation
that his minor daughter Manju Bala aged about 16 years had gone from the house
on March 15, 1998 about 7.30 p.m. at 'Bara' (the place where cattles are
tethered), but did not return thereafter. He complained that his daughter was
taken away by Prem Chand, Rakesh and Jai Bhagwan due to previous enmity with
the object of committing rape. On 17.3.1998, the girl and accused Prem Chand
were found in Noida by the police. After investigation, the police found that
the appellants Rakesh and Jai Bhagwan were not involved in the case. Therefore
on August 11, 1998, charges were framed only against Prem
Chand. On April 15,
1999, PWs 1, 2 and 3
were examined by the prosecution. On May 20, 1999, the prosecutrix was examined as PW
4 and her cross- examination had begun, when the Public Prosecutor moved an
application under section 319 of the Cr.P.C. for arraigning the appellants as
additional accused. The learned trial Judge, by an order dated July 15, 2000 arraigned the appellants as
additional accused and summoned them to stand trial. The appellants preferred
Criminal Revision Petition No.1016 of 2000 before the High Court which was
dismissed. Hence the present appeal.
The
question involved in this case is-whether the statement of a prosecution
witness without the said witness having been cross- examined, constitutes
'evidence' within the meaning of Section 319 of Cr.P.C., 1973.
Learned
senior counsel Mr. Ranjit Kumar submitted that the High Court materially erred
in dismissing the revision application filed by the appellants and submitted
that the term 'evidence' mentioned in Section 319 in reference would mean
examination-in- chief and cross examination of the witnesses. It is his
contention that in a case where the name of the accused is mentioned in the FIR
and after investigation in the report submitted by the Investigating Officer,
the said person is not added as accused and the case is committed to the
Sessions Court, before adding that person as an accused, the sessions Court
ought to have permitted cross examination of the witnesses. He referred to Halsbury's
Laws of India, Ist Edition, Volume 15, in paragraph 145.242, wherein it has been
stated:
"The
mere statement of the plaintiff's witnesses cannot constitute the plaintiff's
evidence in the case unless and until it is tested by cross-examination. The
right of the defence to cross-examine the plaintiff's witnesses can, therefore,
be looked upon not as a part of its own strategy of defence but rather as a
requirement without which the plaintiff's evidence cannot be acted upon."
(emphasis supplied).
At the
time of hearing of this matter, the learned counsel for the parties submitted
that High Courts have taken conflicting views on this point. The High Court of
Punjab and Haryana in the cases of Haryana [2000 (4) RCR 10] has arrived at the
conclusion that statement of the complainant without cross-examination is not
admissible in evidence and, therefore, the order of the Sessions Judge
exercising powers under Section 319 of the Criminal Procedure Code summoning
additional persons as accused on the basis of the said statement was not
lawful. The Court arrived at the conclusion that the word 'evidence' used in
Section 319 of the Code means admissible evidence and the statement of a
witness when he is yet to be cross- examined cannot be treated as evidence in
the eyes of law.
etc.
[1999 (1) RCR 200], High Court of Punjab and Haryana in have taken a contrary
view and have held that the term 'evidence' in Section 319 Cr.P.C. does not
contemplate cross-examination by persons who are to be summoned as accused to
join trial. It does not contemplate of creating of additional stage of
cross-examination of prosecution witnesses by those persons who are to be
summoned and added as accused.
For
appreciating the contention, it is necessary to refer Section 319 of the
Criminal Procedure Code which 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), 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." Sub-section (4) envisages that
once a person is added as an accused, then the proceedings against him are
required to be commenced afresh. At that stage, he would have full opportunity
of testing the evidence of witness by cross-examination. Prior to summoning
such person to face trial, there would not be any question of calling him to
cross-examine the witness. Section also does not contemplate that type of
additional stage in the trial.
Further,
Section 3 of the Evidence Act defines 'evidence' to mean and include:
(1) all
statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry;
(2) all
documents produced for the inspection of the Court; such documents are called
documentary evidence." Hence, once the Sessions Court records a statement
of the witness it would be part of the evidence. It is true that finally at the
time of trial the accused is to be given an opportunity to cross- examine the
witness to test its truthfulness. But that stage would not arise while
exercising court's power under Section 319 Cr.P.C. Once the deposition is
recorded, no doubt there being no cross-examination, it would be a prima facie material
which would enable the sessions court to decide whether powers under Section
319 should be exercised or not. Sub-section (1) of Section 319 itself provides
that 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 for which he appears to
have committed. Further in case of inquiry there may not be any question of
cross-examining the witness. In State of H.P. v. Surinder Mohan and Others
[(2000) 2 SCC 396], this Court dealt with the contention that before granting
pardon under Section 306 of the Cr.P.C., accused should be permitted to cross
examine such person whose evidence is recorded by the Magistrate.
The
Court negatived the said contention by holding that at the time of
investigation or inquiry into an offence, the accused cannot claim any right
under law to cross-examine the witness. The right to cross- examine would arise
only at the time of trial. During the course of investigation by the police,
the question of cross-examination by the accused does not arise. Similarly,
under Section 200 Cr.P.C. when the Magistrate before taking cognizance of the
offence, that is, before issuing process holds the inquiry, the accused has no
right to be heard, and, therefore, the question of cross-examination does not
arise.
Further,
the person to whom pardon is granted, is examined but is not offered for
cross-examination and thereafter during trial if he is examined and
cross-examined then there is no question of any prejudice caused to the
accused. In such cases, at the most the accused may lose the chance to
cross-examine the approver twice, that is to say, once before committal and the
other at the time of trial.
Similar
would be the position under Section 319 Cr.P.C.
In
support of his contention, learned senior counsel Mr. Ranjit Kumar referred to
the decision of this Court in Joginder Singh vs.State of Punjab and another [(1979) 1 SCC 345]. In
our view, this decision nowhere lays down that before a person is added as
accused in a session trial case, he should be permitted to cross-examine the
witnesses whose evidence is recorded. On the contrary, it lays down that once
the Sessions Court is seized of the matter as a result of the committal order
against some accused the power under Section 319(1) can come into play and
Court can add any person, not an accused before it, as an accused and direct
him to be tried alongwith other accused. The Court has further observed that
the very purpose of enacting Section 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 expression "any person not being the accused".
Further,
the scope of Section 319 was considered by this Court in Ranjit Singh vs. State
of Punjab [(1998) 7 SCC 149]. In paragraph 10,
the Court held that sub-section (1) of Section 319 contemplates existence of
some evidence appearing in the course of trial wherefrom the Court can prima
facie conclude that the person not arraigned before it is also involved in the
commission of the crime for which he can be tried with those already named by
the police. The Court has also clarified that:
"Of
course it is not necessary for the court to wait until the entire evidence is
collected for exercising the said powers." Hence, it is difficult to
accept the contention of the learned counsel for the appellants that the term
'evidence' as used in Section 319 Criminal Procedure Code would mean evidence
which is tested by cross examination. The question of testing the evidence by
cross- examination would arise only after addition of the accused. There is no
question of cross-examining the witness prior to adding such person as accused.
Section does not contemplate an additional stage of first summoning the person
and giving him an opportunity of cross- examining the witness who has deposed
against him and thereafter deciding whether such person is to be added as
accused or not. Word "evidence" occurring in sub-section is used in
comprehensive and broad sense which would also include the material collected
by the investigating officer and the material or evidence which comes before
the Court and from which the Court can prima facie conclude that person not
arraigned before it is involved in the commission of the crime.
Lastly,
learned counsel further submitted that power under Section 319 is an
extraordinary power and should be used very sparingly and only for some
compelling reasons for taking cognizance of other persons against whom action
has not been taken. For this purpose, he referred to MCD vs. Ram Kishan Rohtagi
[(1983) 1 SCC 1]. In our view, there cannot be a dispute that power under
Section 319 is to be sparingly used. But that would not mean that when a prosecutrix
names three persons who were involved in the serious crime are not to be added
as accused by exercise of such power.
In the
result, the appeal is dismissed.
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