Ram Chandra Misra v. State of U. P. — 1984 DIGILAW 649 (ALL)

JUDGMENT : S.K. Dhaon, J. Three persons, who are admittedly employees of the applicant, were being prosecuted for cutting a cable owned by the Obra Thermal Power Project, a State Government undertaking. In fact, it is a part of the U.P. State Electricity Board. During the course of the trial the Munsif Magistrate, in exercise of the powers u/s 319 of the Code of Criminal Procedure (hereinafter referred to as the Code), called upon the applicant to defend himself along with the other accused. Thereafter, the applicant appeared before the Magistrate and a charge was framed as against him. Proceedings are still going on before the learned Magistrate. Now, the applicant has invoked the jurisdiction of this Court u/s 482 of the Code. 2. Before the learned Magistrate one of the prosecution witnesses had stated that the accused, at the time of' their arrest, had stated that they were the employees of the applicant and they were cutting the cable under the orders of the applicant, who was described as the Contractor. The accused persons, in their statements recorded u/s 313 of the Code, gave the same version as of the said prosecution witness. 3. From the material placed before me, I am, prima-facie satisfied that the offence took place in the precincts of the Obra Thermal Power Project. It also appears that the place of occurrence was, at the relevant time, not open to the visit of all and sundry and there was a restricted entry. It is also evident that the applicant was at the relevant time either owning or controlling a Misra and Company. It also appears that this Company had taken some work contract which was going on within the restricted area. It is on record that the Obra Thermal Power authorities had issued gate passes to Misra and Company and these gate passes were recovered from the said three employees of Misra and Company. 4. Section 319 of the Code provides that where, in the course of any enquiry 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. Laying emphasis on the words italicised, learned Counsel for the applicant argued that there was no legal evidence before the Magistrate so as to warrant his action u/s 319. Learned Counsel urged that the deposition of the accused recorded u/s 313 of the Code did not constitute any evidence. 5. It is well-known that evidence can be either oral or documentary or circumstantial. Section 319 embraces in it all the three types of evidence. It is true that the statement of an accused in proceedings u/s 313 does not constitute evidence in the strict sense of the term but it does not mean that the same should be ignored altogether. In State of Maharashtra Vs. Dr. R.B. Chowdhary and Others, AIR 1968 SC 110 , the Supreme Court considered the value of the statement of an accused recorded in proceedings u/s 342 of the Code of Criminal Procedure, 1898, with which the provisions of Section 313 of the Code are in pari materia. It was observed: ...No doubt in the Code of Criminal Procedure the statement of an accused should be taken into consideration in an enquiry or trial but it is not strictly evidence in the case. 6. In Vijendrajit Ayodhya Prasad Goel v. State of Punjab AIR 1953 SG 247 godown from where the rectified spirit was recovered was in the possession of the accused. in his statement u/s 342 of the Old Code the accused admitted that he was incharge of the godown. The prosecution had led evidence that the godown from where the rectified spirit was recovered was in possession of the accused. The argument was that the conviction of the accused could not be based on his statement. This was repelled by the Court thus: ...As the Appellant admitted that he was Incharge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused u/s 342 as supporting the prosecution case concerning the possession of the godown.... It will thus be seen that the contention that the depositions of the accused recorded u/s 313 of the Code in the instant case are wholly irrelevant and cannot be taken into consideration for any purpose whatsoever is not sound. The law concerning the appreciation of the circumstantial evidence is well-known. It will thus be seen that the contention that the depositions of the accused recorded u/s 313 of the Code in the instant case are wholly irrelevant and cannot be taken into consideration for any purpose whatsoever is not sound. The law concerning the appreciation of the circumstantial evidence is well-known. It is true that such evidence should be incompatible with the innocence of the accused and should lead to no other hypothesis but to the guilt of the accused. It is also well-known that a prima-facie case can be made out against an accused person on the basis of circumstantial evidence. The prosecution is not bound to explain the circumstances. It is also well-known that a suspicious circumstance is augmented if no explanation is forthcoming. 7. In Joinder Singh v. State of Punjab AIR 1979 SC 239 it was observed in paragraph 6 that from a plain reading of Section 319(1) of the Code it was clear that a Court had the power to add any person, not being the accused before it, but against whom there appeared during trial sufficient evidence indicating his involvement in the offence as an accused and direct him to be tried along with other accused. Again in paragraph 8 it was observed that by invoking Section 319(1) the Court could add any person not an accused before it as an accused and direct him to be tried along with other accused for the offence which such added accused appeared to have committed from the evidence recorded at the trial. Emphasis was laid by the learned Counsel on "from the evidence recorded at the trial " and the contention was that the only evidence recorded at the trial was the statements of the accused persons. This, in my opinion, is not a correct reading of the judgment of the Supreme Court as a whole. The argument that Section 319 can be invoked by a Court only in a situation where in the course of an enquiry into or trial of an offence some evidence has been recorded and from that evidence alone it appears to the Court that any person, not being an accused, has committed an offence is not borne out from a plain reading of the provisions of Section 319(1). Such is not the intendment of the Supreme Court in Joinder Singh's case (supra) either. Such is not the intendment of the Supreme Court in Joinder Singh's case (supra) either. The Supreme Court, in my opinion, has clearly laid down in Joinder Singh's case that there should be sufficient evidence before the Court indicating the involvement of a person, not being an accused, in any offence. The Court should further feel that such a person should be tried along with the accused. 8. The statement of the prosecution witness and the fact that the accused were found in possession of gate passes which had been issued to Misra and Company coupled with the statements of the accused u/s 313 of the Code, in my opinion, constituted sufficient evidence to enable the Magistrate to act u/s 319 of the Code. 9. The applicant acquiesced into the order dated 1st December, 1983, passed by the Magistrate u/s 319 of the Code in so far as he appeared before the Court in pursuance of that order and thereafter the learned Magistrate framed charges against him. Under these circumstances, it is now too late in the day to come to this Court and challenge the validity of the order dated 1st December, 1983. I do not consider it a fit case for interference with the said order passed by the learned Magistrate at this stage. 10. The second contention is that the charge as framed against the applicant can on no account lead to his conviction. Much reliance has been placed by the learned Counsel on the fact that in the charge it is stated that the applicant had contravened the provisions of Section 379 of the Indian Penal Code. In the charge all the relevant facts have been succinctly stated. However, it is now well settled that mere mention of a wrong provision of law will not invalidate the charge. Evidence has yet to come and the applicant will have full opportunity of defending himself and leading evidence in his defence. It is trite that it is always open to a Court to modify, amend or reframe a charge. It is equally true that it is always open to a Court to award suitable punishment after taking into consideration the cumulative effect of the material before it. A mere mention of a wrong provision of law in the charge will not prevent the Court from exercising its jurisdiction. It is equally true that it is always open to a Court to award suitable punishment after taking into consideration the cumulative effect of the material before it. A mere mention of a wrong provision of law in the charge will not prevent the Court from exercising its jurisdiction. I am satisfied that the learned Magistrate had before him prima facie evidence against the applicant and that entitled him to frame a charge against the applicant. 11. It is averred in paragraph 8 of the application that between 5th April, 1984 and 23rd August, 1934 the learned Magistrate fixed 8 different dates in quick succession. Learned Counsel has stated at the bar that the Magistrate rejected the application made by and on behalf of the applicant for exempting his personal appearance in Court. The learned Magistrate is directed to dispose of the case within one month from the date of production of the certified copy of this order by the applicant before him. 12. This application lacks merit and is dismissed summarily.