Shashikant
Singh Vs. Tarkeshwar Singh & Anr [2002] Insc 211 (24 April 2002)
U.C.
Banerjee & Y.K. Sabharwal Y.K. Sabharwal, J.
Leave
granted.
Can a
person summoned pursuant to an order passed by a court in exercise of power
conferred by Section 319 of the Code of Criminal Procedure, 1973 (the Code) be
tried for the offence for which he is summoned after the conclusion of the
trial wherein such an order of summoning was passed, is the question that falls
for determination in this appeal. Such a question regarding the interpretation
of Section 319 of the Code has arisen for the first time. The answer would
depend upon the interpretation of the words 'could be tried together with the
accused' in Section 319 of the Code. The question has come up for consideration
under the following circumstances:
On the
statement of Shashikant Singh, a case under Section 302/34 IPC and under
Section 27 of the Arms Act for murder of his brother Shivakant Singh was
registered against five persons including respondent No.1 and also one Chandra Shekhar
Singh. On completion of investigation, police submitted charge-sheet against
Chandra Shekhar Singh showing the other accused as absconders and as far as
respondent No.1 is concerned investigation was shown to be pending. Against
Chandra Shekhar Singh, the Court of Sessions framed charge under Section 302
IPC and Section 27 of the Arms Act.
By
order dated 7th April,
2001, learned
Additional Sessions Judge held that from the evidence of prosecution witnesses
it appears that respondent No.1 and two others have committed the offence of
the murder of Shivakant Singh. The warrants of arrest against these persons
were directed to be issued so that they may be tried together with the accused
Chandra Shekhar Singh. This order was challenged by respondent No.1 in a
criminal revision petition (Criminal Revision No.269/2001) filed in the High
Court of Judicature at Patna.
During
the pendency of the aforesaid revision petition, the learned Sessions Judge
concluded the trial against Chandra Shekhar Singh and believing the ocular
testimony, by judgment dated 16th July, 2001,
Chandra Shekhar Singh was convicted for the offence under Section 302 IPC and
Section 27 of the Arms Act. In the revision petition, it was contended on
behalf of respondent No.1 that since the trial in respect of Chandra Shekhar
Singh has already been concluded and no session trial is pending before the
trial court, Section 319 would not be applicable as the said provision is
applicable only when the trial against another accused is pending and in the
absence of pendency of such a trial, the court is not competent to proceed
against respondent No.1. The High Court by the impugned judgment accepted the
aforesaid contention and held that the order dated 7th April, 2001 is without jurisdiction. The order dated 7th April, 2001 was quashed without issue of notice
to the petitioner but on hearing the counsel for the State of Bihar. The other contentions urged during
the hearing of the revision petition that (i) the investigation against respondent
No.1 was kept pending and on that score, the Court had no power to summon the
said respondent under Section 319 of the Code; (ii) the order dated 7th April,
2001 is illegal as no reasons have been assigned for proceeding against
respondent No.1 and; (iii) the order was too cryptic, were not gone into by the
High Court.
The
trial against Chandra Shekhar Singh was pending on 7th April, 2001 when the order under Section 319(1) of the Code was passed
by the Court of Sessions. Thus, the order when passed cannot be said to be
without jurisdiction on the stated ground since at that stage, the trial
against Chandra Shekhar Singh was pending and respondent No.1 summoned under
Section 319 could be tried together with him. However, the trial against
Chandra Shekhar Singh concluded before respondent No.1 could be brought before
the Sessions Court. Therefore, the question is, can respondent No.1, after
being summoned under Section 319 of the Code, be tried in the absence of trial
pending against Chandra Shekhar Singh. In other words, the aspect to be
determined is as to whether the order dated 7th April, 2001 would become
ineffective and inoperative as a result of the conclusion of trial against
Chandra Shekhar Singh before respondent No.1 could be proceeded with for the
offence for which warrants were issued against him by the Sessions Court
pursuant to an order passed under Section 319 of the Code. That section 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."
Clearly,
the proceedings against the person summoned under sub-section (1) are required
to be commenced afresh and the witnesses reheard. The entire proceedings have
to recommence from the beginning of the trial. All the witnesses have to be
examined afresh. Opportunity has to be granted to such a person
to cross-examine those witnesses. There has to be a de novo trial.
The
effect of the conclusion of the trial against the accused who was being
proceeded with when the order was passed under Section 319(1) for proceeding
against the newly added person, is to be examined in the light of sub-section
(4) of Section 319 which stipulates a de novo trial in respect of the newly
added persons and certain well settled principles of interpretation.
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
directory enactment be obeyed or fulfilled substantially. No universal rule can
be laid down as to whether mandatory enactments shall be considered directory
only or 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) 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), appear 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
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.
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).
The
mandate of the law of fresh trial is mandatory whereas the mandate that newly
added accused could be tried together the accused directory.
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 common sense 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.
Reliance
by learned counsel for the respondent No.1 has been placed on Municipal
Corporation of Delhi v. Ram Kishan Rohtagi & Ors.
[(1983) 1 SCC 1] in support of the contention that respondent No.1 could be
tried only with Chandra Shekhar Singh and his trial having concluded,
respondent No.1 cannot be now tried pursuant to order under Section 319(1) of
the Code. This Court in the cited decision was not concerned with the issue
which has fallen for consideration before us. The same is the position in
respect of Michael Machado & Anr. V. Central Bureau of Investigation & Anr.
[(2000) 3 SCC 262]. There this Court considered the scope of the provision as
to the circumstances under which the Court may proceed to make an order under Section
319 and not the question as to the effect of the conclusion of the trial after
passing an order under Section 319(1). None of these decisions have any
relevance for determining the point in issue.
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 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 finding out whether 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. v
State of Bihar [(1993) 2 SCC 16].
In
view of the aforesaid legal position, the High Court was clearly in error in
coming to the conclusion that the order dated 7th April, 2001 had become without jurisdiction as a result of the
conclusion of trial against Chandra Shekhar Singh. The impugned order of the
High Court is, therefore, set aside.
The
High Court did not go into the other contentions as urged on behalf of
respondent No.1and decided the Criminal Revision No.269/2001 only on the point aforenoted.
In this view, we would remand the Criminal Revision No.269/2001 to the High
Court for fresh decision to consider the other contentions urged by Respondent
No.1.
The
appeal is allowed in the above terms. The application for impleadment is,
however, dismissed. The High Court would do well to expeditiously decide the
matter preferably within a period of three months.
.......................................J.
[U.C. Banerjee]
.......................................J.
Back