whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. = Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.=we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence is clear from the words for which such person could be tried together with the accused. The words used are not for which such person could be convicted. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused. (emphasis supplied). Having regard to the above, the Criminal Petition is allowed by setting aside the impugned order and the matter is remitted back to the trial Court if at all from any further evidence to take cognizance if any offence made out so to take by left open all available defences in such event of taking cognizance to the petitioner among others.

HONBLE SRI JUSTICE Dr. B. SIVA SANKARA RAO      

CRIMINAL PETITION No.12242 of 2010  

12-10-2017

Vemuri Radhakrishna Petitioner  

Pathuri Prasad and another.Respondents  


Counsel for the petitioner:Sri D. Srinivas

Counsel for the respondents :Sri G.L. Narasimha Rao Learned Public Prosecutor

<GIST:
       
>HEAD NOTE:  


? Cases referred
1.(2014) 3 SCC 92
2.(2017) 7 SCC 706


HONBLE SRI JUSTICE Dr. B. SIVA SANKARA RAO      
CRIMINAL PETITION No.12242 of 2010  
ORDER:
      The petitioner V. Radhakrishna is the Managing Director of
Andhra Jyothi is the A.9 among other accused of C.C.No.126 of
2008 pending on the file of Additional Judicial Magistrate of First
Class, Chilakaluripet, for the defamatory imputation published in
the daily newspaper, Andhra Jyothi apart from Vaartha and
Eenadu respectively on 09.06.2007.  It is the private complaint
dated 11.06.2007 of P. Prasad, the complainant, that was taken
cognizance for the offence punishable under Section 500 r/w 34
IPC by the learned Magistrate, where there was array of 8 accused
originally.  The petitioner as Managing Director of Andhra Jyothi
or the Editor K.Radha Krishna Murthy or Sub Editor as the case
may be, were not the accused originally in the private complaint.  It
is during the course of trial from the evidence of PW.1 and the
learned Magistrate taken cognizance against the petitioner being
Managing Director as A.9 and the Editor and Sub Editor as A.10 &
A.11 under Section 319 Cr.P.C. vide order dated 24.07.2009 in
Crl.M.P.No.998 of 2009.  It is the same now impugned in the
quash petition.
      The averments in the quash petition show that the impugned
order of the learned Magistrate is unsustainable, without
jurisdiction and contrary to the provisions of law and thereby liable
to be quashed.  The deposition of PW.1 during trial, on 27.02.2009
reads that he is resident of Edlapadu and Managing Partner of
Saibaba Stone Crusher.  In 1992 Vankayalapadu Gram Panchayat  
leased out land of an extent of Ac.1-25 cents in D.No.28/C and the
lease was for 99 years and the said land is in the possession of the
complainant.  On 23.05.2007, Communist party of India leaders
who came about 300 persons entered into the land and plugged
flags, all armed with crow bars and sticks and when complainant
tried to stop them, they assaulted him then he gave report to
Edlapadu Police Station, police did not register case and as the
lease stands in the name of wife of the complainant PW.1, his wife
filed the private complaint against the CPI party people.  For that
on 08.06.2007, A.1 to A.5 and 3 others convened a press meeting
at party office at Chilakaluripet and A.7 among other accused 6 to
8 are also were in the press meeting and said 8 persons gave
statement against him stating he is a printer and circulator of
counter feet and fake currency and how can such a person can file
a private complaint against the CPI party leaders.  One Shaik Baji
at Saibaba Stone Crusher in the premises of the complainant
heard the news and purchased the paper of Andhra Jyothi and
read out the news.  To the shock and humiliation of him from said
news, he filed the private complaint as the news publication
defamed in the eyes of public to diminish from growing politically
and financially, he was implicated in a false currency case that was
ended in acquittal.  It is from that deposition though the learned
Magistrate allowed with observation that Court can proceed against
the person who is not already accused basing on evidence of
witnesses under Section 319 Cr.P.C.
      As held by the Constitution Bench of the Apex Court in
Hardeep Singh Vs. State of Punjab  for taking cognizance against
the persons other than accused from the evidence during trial
under Section 319 Cr.P.C., it is something more than the strong
suspicion to frame a charge that is required to be made out.
Whether it is made out or not is now a matter for consideration
herein from the impugnment of the order in question on
sustainability.  In the private complaint filed against 8 persons
only on 11.06.2007 no doubt list of witnesses shows as to summon
the news reporter of Andhra Jyothi, Chilakaluripet, among the
news reports of Vaartha and Eenadu, also out of Lws.1 to 8 as 6 to
8 and the documents filed are document No.2 Andhra Jyothi
District Edition dated 09.06.2007.  In the complaint, it is averred
on 09.06.2007 complainant, one B.Venkateswamy, A. Sateesh,  
S.Ramana and S.Krishna among Lws.1 to 5 sat at his crushing
machine, one Baji brought the newspaper and told defamatory
imputation published in Andhra Jyothi page No.13 and then he
took the newspaper read over the defamatory imputation loudly to
the shock and surprise of the complaint hurt its feelings and
making imputation and all the persons there felt bad of the
imputation with character assassination and to disrepute him and
the intention of the accused making such defamatory imputation
falsely and maliciously is fraudulent.  It is mentioned that earlier a
fake currency case booked against him, the III Additional Assistant
Sessions Judge (FTC), Guntur, acquitted him on 09.03.2007 for
same not proved and he is a respectable person in the society.
Though the name of the petitioner/A.9 or A.10 or A.11 of Andhra
Jyothi not referred in the private complaint as array of accused
specifically the news item published therein in Andhra Jyothi was
referred.  By the time the learned Magistrate has taken cognizance
by 24.07.2009 even from the date of publication of news item on
09.06.2007 it is not barred by limitation for the offence under
Section 500 IPC of 2 years for limitation is 3 years, the learned
Magistrate should have been considered from the evidence on
record as to there is any offence so far that news item concerned
with reference to the original complaint averments and the sworn
statement also and without which and that too with no
explanation from complainant as to why he originally not
impleaded, but later though there is no bar of limitation, the taking
of cognizance by the learned Magistrate invoking Section 319
Cr.P.C. against the petitioner & 2 others as additional accused 9 to
11 cannot survive for the parameter required in the expression of
the Apex Court not satisfied of the prima facie accusation.
      In Brijendra Singh Vs. State of Rajasthan  reiterating
Hardeep Singh supra held at Paras 9 to 12 as follows:
       9. Powers of the Court to proceed under Section 319 Cr.P.C.
even against those persons who are not arraigned as accused, cannot
be disputed. This provision is meant to achieve the objective that real
culprit should not get away unpunished. A Constitution Bench of this
Court in Hardeep Singh supra explained the aforesaid purpose
behind this provision in the following manner:
       8. The constitutional mandate under Articles 20 and 21 of the
Constitution of India provides a protective umbrella for the smooth
administration of justice making adequate provisions to ensure a fair
and efficacious trial so that the accused does not get prejudiced after
the law has been put into motion to try him for the offence but at the
same time also gives equal protection to victims and to society at large
to ensure that the guilty does not get away from the clutches of law.
For the empowerment of the courts to ensure that the criminal
administration of justice works properly, the law was appropriately
codified and modified by the legislature under CrPC indicating as to
how the courts should proceed in order to ultimately find out the truth
so that an innocent does not get punished but at the same time, the
guilty are brought to book under the law. It is these ideals as
enshrined under the Constitution and our laws that have led to
several decisions, whereby innovating methods and progressive tools
have been forged to find out the real truth and to ensure that the
guilty does not go unpunished.
       xx xx xx
       12. Section 319 CrPC springs out of the doctrine judex
damnatur cum nocens absolvitur  (Judge is condemned when guilty is
acquitted) and this doctrine must be used as a beacon light while
explaining the ambit and the spirit underlying the enactment of
Section 319 CrPC.
       13. It is the duty of the court to do justice by punishing the real
culprit. Where the investigating agency for any reason does not array
one of the real culprits as an accused, the court is not powerless in
calling the said accused to face trial. The question remains under
what circumstances and at what stage should the court exercise its
power as contemplated in Section 319 CrPC?
       xx xx xx
       19. The court is the sole repository of justice and a duty is cast
upon it to uphold the rule of law and, therefore, it will be
inappropriate to deny the existence of such powers with the courts in
our criminal justice system where it is not uncommon that the real
accused, at times, get away by manipulating the investigating and/or
the prosecuting agency. The desire to avoid trial is so strong that an
accused makes efforts at times to get himself absolved even at the
stage of investigation or inquiry even though he may be connected
with the commission of the offence.

       10. It also goes without saying that Section 319 Cr.P.C., which
is an enabling provision empowering the Court to take appropriate
steps for proceeding against any person, not being an accused, can be
exercised at any time after the charge-sheet is filed and before the
pronouncement of the judgment, except during the stage of Section
207/208 Cr.P.C., the committal etc., which is only a pre-trial stage
intended to put the process into motion.

       11. In Hardeep Singhs case, the Constitution Bench has also
settled the controversy on the issue as to whether the word evidence
used in Section 319(1) Cr.P.C. has been used in a comprehensive
sense and indicates the evidence collected during investigation or the
word evidence is limited to the evidence recorded during trial. It is
held that it is that material, after cognizance is taken by the Court,
that is available to it while making an inquiry into or trying an
offence, which the court can utilise or take into consideration for
supporting reasons to summon any person on the basis of evidence
adduced before the Court. The word evidence has to be understood in
its wider sense, both at the stage of trial and even at the stage of
inquiry. It means that the power to proceed against any person after
summoning him can be exercised on the basis of any such material as
brought forth before it. At the same time, this Court cautioned that
the duty and obligation of the Court becomes more onerous to invoke
such powers consciously on such material after evidence has been led
during trial. The Court also clarified that evidence under Section 319
Cr.P.C. could even be examination-in-chief and the Court is not
required to wait till such evidence is tested on cross-examination, as
it is the satisfaction of the Court which can be gathered from the
reasons recorded by the Court in respect of complicity of some other
person(s) not facing trial in the offence.

       12. The moot question, however, is the degree of satisfaction
that is required for invoking the powers under Section 319 Cr.P.C. and
the related question is as to in what situations this power should be
exercised in respect of a person named in the FIR but not charge-
sheeted. These two aspects were also specifically dealt with by the
Constitution Bench in Hardeep Singhs case and answered in the
following manner:
       95. At the time of taking cognizance, the court has to see
whether a prima facie case is made out to proceed against the
accused. Under Section 319 CrPC, though the test of prima facie case
is the same, the degree of satisfaction that is required is much
stricter. A two-Judge Bench of this Court in Vikas v. State of
Rajasthan [(2014) 3 SCC 321], held that on the objective
satisfaction of the court a person may be arrested or summoned,
as the circumstances of the case may require, if it appears from the
evidence that any such person not being the accused has committed
an offence for which such person could be tried together with the
already arraigned accused persons.
       xx xx xx
       105. Power under Section 319 CrPC is a discretionary and an
extraordinary power. It is to be exercised sparingly and only in those
cases where the circumstances of the case so warrant. It is not to be
exercised because the Magistrate or the Sessions Judge is of the
opinion that some other person may also be guilty of committing that
offence. Only where strong and cogent evidence occurs against a
person from the evidence led before the court that such power should
be exercised and not in a casual and cavalier manner.
       106. Thus, we hold that though only a prima facie case is to be
established from the evidence led before the court, not necessarily
tested on the anvil of cross-examination, it requires much stronger
evidence than mere probability of his complicity. The test that has to
be applied is one which is more than prima facie case at the time of
framing of charge, but short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to conviction. In the absence
of such satisfaction, the court should refrain from exercising power
under Section 319 CrPC. In Section 319 CrPC the purpose of providing
if it appears from the evidence that any person not being the accused
has committed any offence is clear from the words for which such
person could be tried together with the accused. The words used are
not for which such person could be convicted. There is, therefore, no
scope for the court acting under Section 319 CrPC to form any opinion
as to the guilt of the accused. (emphasis supplied).
      Having regard to the above, the Criminal Petition is allowed
by setting aside the impugned order and the matter is remitted
back to the trial Court if at all from any further evidence to take
cognizance if any offence made out so to take by left open all
available defences in such event of taking cognizance to the
petitioner among others.
      Consequently, miscellaneous petitions, if any shall stand
closed.
_____________________________________    
JUSTICE Dr. B.SIVA SANKARA RAO      
Date: 12.10.2017