TMI Blog2007 (8) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or statements purported to have been recorded u/s 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed u/s 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh [ 2002 (4) TMI 958 - SUPREME COURT] held '' 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 u/s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cident took place on 16.3.2002 when the trial of the aforesaid tripple murder case was going on. According to the case of the prosecution, the accused of the tripple murder case were putting pressure on Nigam Singh not to give evidence in the said case. It is alleged that at about 6.00 p.m. on 16.3.2002, the first informant Rajendra Singh (appellant herein) and his brother Ajay Singh were returning after getting their field harvested. At that time, Nigam Singh also arrived there on a scooter. The accused in the present case, viz., Kapil Dev Singh (respondent No. 2 herein) and Daya Singh stopped him and asked him not to give evidence in the tripple murder case. Nigam Singh, however, did not agree to their suggestion not to give evidence and tried to move ahead on his scooter. Kapil Dev Singh then instigated his brother Daya Singh, who fired upon Nigam Singh from a country-made pistol. In spite of receiving the gun shot injury, Nigam Singh managed to escape from there and informed about the incident to his family members. Meanwhile, the first informant, Rajendra Singh, and his elder brother Ajay Singh also reached there. However, Nigam Singh succumbed to his injuries shortly thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983) 1 SCC 1, wherein it is observed that power under Section 319 is really an extraordinary power which 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. On the basis of the aforesaid authority, the High Court posed the question whether compelling ground existed or not and whether there was no option but to summon the accused. Thereafter, the High Court referred to the statements of six persons which had been recorded by the investigating officer, which showed that between 4.30 p.m. and 5.30 p.m. Kapil Dev Singh was present in the meeting and then observed as under : No doubt, it might have been a probable defence which the court could not consider at the time of proceeding under Section 319 Cr.P.C. but as the power has to be exercised sparingly, the Court should have examined all the aspects of the case. Observing as above, the High Court allowed the petition under Section 482 Cr.P.C. and quashed the order dated 26.5.2005 passed by the learned Sessions Judge under Section 319 Cr.P.C. summoning the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d: 11. On a plain reading of Sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section 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. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. ........................ It is, therefore, clear that if the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge sheeted by the investigating agency or ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge. 8. Shri S.R. Singh, learned senior counsel for the respondent No. 2, has submitted that though the statements recorded by the investigating officer under Section 161 Cr.P.C. are not substantive piece of evidence, but the High Court while exercising power under Section 482 Cr.P.C. could have looked into attending circumstances, namely, the statements and the affidavits filed by some of these persons before the Superintendent of Police, Allahabad. Learned counsel has also submitted that the summoning order itself must exhibit special circumstances warranting such a course of action and if no special circumstances are demonstrated in the order, the summoning order is per se illegal. Learned counsel has further submitted that the trial of co-accused Daya Singh has concluded and he has been acquitted by the learned Sessions Judge and in such circumstances it will not be a sound exercise of discretion to set aside the order passed by the High Court and restore that of the learned Sessions Judge. 9. Shri Manoj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738. and it was held as under in para 9 of the report : 9. 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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