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2004 DIGILAW 1419 (BOM)

Nilkanth Krishna Thakre v. State of Maharashtra

2004-12-17

K.J.ROHEE

body2004
JUDGMENT - ROHEE K.J., J.: - By this petition under Article 227 of the Constitution of India read with section 482 of the Code Criminal Procedure, the petitioner seeks quashing and setting aside the order dated 6-10-2001 passed by Additional Sessions Judge, Gondia, in Sessions Trial No. 76/2000 directing addition of the petitioner as co-accused for the offences punishable under sections 201, 204 and 218 of I.P.C. 2. The brief facts are that the petitioner was working as Police Station Officer, Amgaon. He was Investigating Officer in Crime No. 107/2000 for the offence punishable under section 307 of I.P.C. and Crime No. 108/2000 for the offence punishable under sections 302 read with 109, 147, 148, 149 and 343 of I.P.C. it seems that after investigation, charge-sheets were filed and both the cases were committed to the Court of Session. 3. During the pendency of Sessions Trial No. 76/2000, the Additional Public Prosecutor moved an application under section 319 of the Cri.P.C. for adding the Investigating Officer himself as co-accused because the copy of the charge-sheet supplied to the public prosecutor consisted of the statements of eye-witneses recorded under section 161 of the Cri.P.C. which were totally different with the statements filed with the charge-sheet in the Court. According to the Additional Public Prosecutor the Investigating Officer was guilty of fabricating false documents with intent to screen some offenders from legal punishment. He, therefore, moved the said application for impleading the Investigating Officer as co-accused. 4. By detailed order dated 6-10-2001 the Additional Sessions Judge, Gondia, allowed the said application, issued process against the Investigating Officer/present petitioner under sections 201, 204 and 218 of the I.P.C. and directed him to surrender. The said order is under challenge. 5. The learned Counsel for the applicant submitted that an order impleading an accused can be passed by the Court during the course of inquiry or trial of an offence only if it appears from the evidence that such person has committed any offence for which he could be tried together with the accused. He submitted that without recording evidence an order under section 319 Cri.P.C. cannot be passed by the Court. In the present case, no evidence was recorded by the Sessions Court in the said trial and without recording any evidence, the impugned order came to be passed. The same is, therefore, illegal and cannot be sustained. He submitted that without recording evidence an order under section 319 Cri.P.C. cannot be passed by the Court. In the present case, no evidence was recorded by the Sessions Court in the said trial and without recording any evidence, the impugned order came to be passed. The same is, therefore, illegal and cannot be sustained. In support of this submission, the learned Counsel for the petitioner relied on (Raj Kishore Prasad v. State of Bihar another)1, 1996(2) Crimes 142(S.C.) wherein it has been held- "Addition of an accused by summoning or re-summoning a discharged accused has only been permitted in the manner provided by section 319 Cri.P.C. on evidence adduced during trial and in no other way." 6. In Raj Kishore Prasad's case reliance was placed on (Kishun Singh others v. State of Bihar)2, 1993(2) S.C.C. 16 wherein it was held that : "On plain reading of sub-section (1) of section 319, there could 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, and that the said power could be exercised only if it so appears from the evidence adduced at the trial and not otherwise ......... Section 319 of the Code cannot be invoked in a case where no evidence had been led at a trial." 7. While interpreting sections 340, 161 of the Code of Criminal Procedure in (O.K. Jadhao v. Second Additional Sessions Judge, Buldana)3, A.I.R. 1977 Supreme Court 331, the Supreme Court specifically observed "statements recorded under section 161 are not evidence". 8. The learned Additional Public Prosecutor, however, justified the impugned order by submitting that the word "evidence" used in section 319(1) has a wide scope and no restricted meaning can be attached to it. In this respect he relied on (Rakesh v. State of Harayana)4, 2003(Supp.) Bom.C.R. (S.C.)291. In the said case it was observed as under : "It cannot be said that the term 'evidence' as used in section 319 would mean evidence which is tested by cross-examination ..... In this respect he relied on (Rakesh v. State of Harayana)4, 2003(Supp.) Bom.C.R. (S.C.)291. In the said case it was observed as under : "It cannot be said that the term 'evidence' as used in section 319 would mean evidence which is tested by cross-examination ..... .Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the Investigating Officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime." 9. It may be noted that in Rakesh's case the question before the Apex Court was whether the person to be summoned as co-accused had a right to cross-examine the witness before impleading him as an accused and in that case the Court has observed that he had no right to cross-examine unless he is joined as co-accused. It is thus obvious that Rakesh's case would not be applicable to the facts of the present case. 10. In the Sessions trial wherein the petitioner has been joined as an co-accused, no evidence was recorded and only on the basis of the application moved by the A.P.P. wherein it was stated that there were two different types of statements of eye-witnesses, the petitioner was directed to be impleaded as co-accused. This is apparently against the provisions of section 319(1) of Cri.P.C. In this view of the matter, the impugned order is illegal and cannot be sustained. Hence I pass the following order : 11. The petition is allowed. The order dated 6-10-2001 passed by the Additional Sessions Judge, Gondia is quashed and set aside. It is needless to mention that the Court may proceed to implead the petitioner as co-accused only after recording of evidence. Rule made absolute in the above terms. Petition allowed. -----