TaxTMI 
TaxTMI 
2009 (5) TMI 1031
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther was also assaulted. When his father rushed to their rescue, he was also surrounded by them and was assaulted as a result whereof, he expired. Upon investigation, a final form was submitted in favour of the appellants. A charge-sheet was filed only against four persons, viz., Kishori, Jagdish, Sarjit and Sheo. 4. Indisputably, a counter case had been filed. 5. An application was filed on or about 01st April 1998 in terms of Section 319 of the Code for summoning the appellants herein as accused. Before the learned Upper Distt. & Sessions Judge, a large number of witnesses were examined and cross-examined on behalf of the accused persons. By reason of an order dated 29th May 2003, the learned Upper Distt. & Sessions Judge rejected the said application filed by the 1st respondent herein opining that no case has been made out therefor. A criminal miscellaneous petition filed by the 1st respondent before the High Court against the order of the learned Upper Distt. & Sessions Judge, however, has been allowed by reason of the impugned judgment, stating: The very ambit of Section 319 Cr. P.C. is to empower the trial court to take cognizance against those persons who a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Upper Sessions Judge committed a serious error insofar as he failed to take into consideration that existence of a prima facie case alone would subserve the requirements of the said provision. It was urged that at that stage, the learned Upper Sessions Judge should not have entered into the arena of appreciation of evidence. In this regard, our attention has been drawn to the statements of various witnesses examined on behalf of the prosecution prior to the passing of the order dated 29th May 2003. 8. Before the learned Upper Sessions Judge, the respondent No. 1 herein was examined as P.W.2 on 23rd February 1998. He alleged involvement of the appellants herein in the incident. He had also attributed certain overt acts on their part, inter alia, contending that they had assaulted his father with the reverse side of an axe (farsi). One Ramesh Kumar, brother of the respondent No. 1 was also examined as P.W. 7 on 22nd January 2003. Similarly, one Kanesh, son of respondent No. 1, examined himself as P.W.8 on 22nd January 2003. 9. Mr. Naveen Kumar Singh, learned Counsel appearing on behalf of the State would submit that it was not permissible in law for the learned Upper Session....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erson named as an accused in the FIR was not charge-sheeted as a result whereof no cognizance has been taken against him. What is necessary for the said purpose is that the person concerned was not being tried as an accused before the Court at that stage. 13. This Court in the case of Kailash v. State of Rajasthan 2008 CriLJ 1914, has held that a glance of the provision would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. This Court has laid emphasis on the words, `it appears from the evidence', `any person', and `has committed any offence'. It was further held that the power under Section 319 has to be essentially exercised only on the basis of the evidence brought on record of the case. The discretionary jurisdiction could, therefore, be exercised only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. 14. In the case of Raj Kishore Prasad v. State of Bihar and Anr. 1996 CriLJ 2523, this Court opined: 14. Learned ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Court in Joginder Singh v. State of Punjab 1979 CriLJ 333 . In our view, this decision nowhere lays down that before a person is added as accused in a sessions 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 the court can add any person, not an accused before it, as an accused and direct him to be tried along with 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'. 16. We must, however, at this stage also place on record that this Court, in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. 1983 CriLJ 159, opined that the power under the said provision must be exercised very sparingly and not as a matter of course. In the c....