Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 750 (MP)

Bihari v. State of M. P.

2002-08-06

S.L.KOCHAR

body2002
Judgment ( 1. ) THIS revision has been filed by the applicants against the judgment and order passed by the Fourth Addl. Sessions Judge, Ujjain in Sessions Trial No. 342/2000, dated 28-2-2002, directing the prosecution to take cognizance and investigate the case against the applicants/prosecution witnesses Shyamlal (P. W. 4) and Bihari (P. W. 17 ). ( 2. ) THE prosecution case before the Trial Court, in brief was that the deceased Suwabai had advanced loan to the acquitted accused persons named Ramchandra, Ramesh and Sagar. On demand, instead of returning the loan amount, she was abused and ill-treated by the accused persons resulting into commission of suicide on 30-5-2000 by Suwabai after ablazing herself. ( 3. ) THE matter was reported to the concerned police and after usual investigation, charge-sheet was filed against Ramchandra, Ramesh and Sagar. The applicants were cited as witnesses in the case. ( 4. ) THE learned Trial Court framed the charges against the accused persons for the offences punishable under Sections 306/34 and 406, 201, 202, 418 and 427 of the Indian Penal Code. The applicant No. 1 Bihari was the father-in-law of deceased Suwabai and applicant No. 2 Shyam was her husband. The prosecution has placed the dying declaration (Ex. P-5) on record, recorded by the Executive Magistrate, P. L. Nanama (P. W. 6) and in this dying declaration, she had disclosed about commission of suicide. This dying declaration has not been relied upon by the Trial Court for the reasons mentioned in paras 16, 17 and 18 of its judgment. The dying declaration has been mainly disbelieved by the Trial Court on the ground that the deceased was suffering from 82 percent burn and in such a situation, she could not have given the detailed dying declaration as mentioned in Ex. P-5. ( 5. ) THE prosecution has also examined Dalibai (P. W. 1) daughter of the deceased and the applicant No. 2 Shyam. Dalibai is a child witness. According to her Court statement, her mother was set on fire by the applicants (after pouring kerosene oil ). She has given contradictory statement in Court to her case-diary-statement (Ex. P-1 ). She was declared hostile and was confronted with her case-diary-statement (Ex. P-1 ). Another prosecution witness Toufan (P. W. 13), who is also the son of the applicant No. 2 Shyamlal and deceased Suwabai. She has given contradictory statement in Court to her case-diary-statement (Ex. P-1 ). She was declared hostile and was confronted with her case-diary-statement (Ex. P-1 ). Another prosecution witness Toufan (P. W. 13), who is also the son of the applicant No. 2 Shyamlal and deceased Suwabai. In para 23 of the judgment, the learned Trial Court has discussed the statement of this witness and came to the conclusion that the applicants were trying to tutor and influence Dalibai (P. W. 1 ). This witness has also testified in para 3 of her statement that her father applicant No. 2 Shyam had taught him about answering the questions put by anybody that Daiibai was telling a lie. This witness has also stated that Dalibai was saying that she will speak the truth and she was threatened by the applicants (grand-father and father respectively), that if she will speak the truth, she will face the same consequence like her mother. In para 19, the learned Trial Court has also considered the demeanour of the applicant No. 2 Shyamlal while giving the statement in the Court. The applicant No. 2, at the time of administering oath to him, voluntarily stated that he will speak the truth even if he is punished. The Trial Court suggested him for giving evidence without any fear and he should not fold his hands in the Court. The witness was extremely perplexed and unstable. ( 6. ) THE learned Trial Court, after over-all evaluation of evidence, came to the conclusion that the prosecution has failed to prove the offences against the acquitted co-accused persons Ramchandra, Ramesh and Sagar beyond all reasonable doubt that because of their ill-treatment for demand of loan by the deceased, the deceased committed suicide. The deceased was not in any way related to them. At the same time in para 30, the learned Trial Court has directed the prosecution for taking cognizance in accordance with law against the applicants who appeared as prosecution witnesses before the Court and investigate the matter. ( 7. ) LEARNED Counsel for the applicants submitted that the Trial Court has no jurisdiction to pass such direction for taking cognizance and to investigate the matter against the applicants who appeared as witnesses. According to him, there is no such provision in the Code of Criminal Procedure authorising the Trial Court to pass such a direction. ( 7. ) LEARNED Counsel for the applicants submitted that the Trial Court has no jurisdiction to pass such direction for taking cognizance and to investigate the matter against the applicants who appeared as witnesses. According to him, there is no such provision in the Code of Criminal Procedure authorising the Trial Court to pass such a direction. This Court has also asked the learned Deputy Advocate General to specifically point out any such provision, but no such provision has been pointed out to this Court. ( 8. ) HAVING heard the learned Counsel for the parties and after perusing the entire record, this Court is of the opinion that the Trial Court has no jurisdiction to pass such an order for taking cognizance and investigate the matter against the applicants/witnesses. If the Trial Court was of the opinion that the applicants were involved in the death of Suwabai, the Trial Court could have proceeded under Section 319 of the Code of Criminal Procedure which reads as under :-- "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 witness 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. " ( 9. " ( 9. ) UNDER this provision, the Trial Court has wide powers after recording the statement of Dalibai (P. W. 1) and Toufan (P. W. 13), daughter and son of the deceased and applicant No. 2 as well as on the basis of the demeanour as noted while recording the statement of applicant No. 2 to proceed under Section 319, Cr. PC (supra ). The Trial Court, if it was appearing from the evidence that the applicants had committed the offence of murder and/or any offence and for which they could be tried together with the co-accused, could have proceeded against the applicants. Section 319 (1) is very clear on this aspect. During the course of any inquiry or trial of an offence, if it appears from the evidence that any person who has not been arrayed as an accused by the police, can be tried in the same trial alongwith the other co-accused persons for commission of "any offence". Therefore, though the charge-sheet was filed by the police against the acquitted accused persons under Sections 306 and 406, etc. , but, if the Trial Court was of the view that there was sufficient material against the applicants to try them for commission of murder of the deceased, the Trial Court could have taken cognizance under Section 319 of the Code of Criminal Procedure and could have immediately proceeded under Section 319 (3) of the Code. The applicants could have been detained immediately by the Trial Court. The whole provision as enumerated under Section 319, Cr. PC is very clear on this aspect. ( 10. ) UNDER Section 319 (4), the power has been given to the Court to proceed afresh and examine the witnesses again and the case will be proceeded against such person as if he was an accused when the Court took cognizance of the offence upon the inquiry or trial was commenced. ( 11. ) IN the facts and circumstances of the present case, the learned Trial Court had full jurisdiction to proceed against the applicants under Section 319, Cr. PC. Having failed to exercise such powers, the question is whether the Trial Court has jurisdiction to direct the prosecution to take cognizance and investigate the matter in accordance with law. ( 12. ) IN the facts and circumstances of the present case, the learned Trial Court had full jurisdiction to proceed against the applicants under Section 319, Cr. PC. Having failed to exercise such powers, the question is whether the Trial Court has jurisdiction to direct the prosecution to take cognizance and investigate the matter in accordance with law. ( 12. ) AFTER thorough research on Sections 190, 193, 173 (8) and 482 of the Code of Criminal Procedure, this Court comes to the conclusion that the Trial Court has no jurisdiction to pass such directions. The Trial Court could have proceeded under Section 319 of the Cr. PC, but has failed to do so. The Trial Court has no inherent powers to exercise as per Section 482 of the Code. Inherent powers could be exercised only by the High Court. This legal position is also well settled. This Court can profitably refer the decision of the Supreme Court in Randhirsingh Rana v. State (Delhi Administration) [ (1997) 1 SCC 361 ]. ( 13. ) ON the wake of foregoing discussion, on legal and factual aspect, this Court is of the opinion that the impugned order/direction passed by the Trial Court is without jurisdiction and, therefore, the same are liable to be set aside. ( 14. ) AS a result of the discussion as aforesaid, this revision is allowed. The impugned order/direction of the Court below stand set-aside.