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Madhya Pradesh High Court · body

2005 DIGILAW 352 (MP)

KAILASH NATH KATIAR v. STATE OF M P

2005-03-07

A.K.SHRIVASTAVA

body2005
Judgment ( 1. ) BY this petition, the petitioner has called in question the propriety and pregnability of the order dated 27-8-96 passed by the Trial Court allowing the application filed on behalf of prosecution under Section 319 of the Code of criminal Procedure, 1973 (in short the Code) and thereby arraying the present petitioner as an accused. ( 2. ) NO exhaustive statement of facts are necessary for the disposal of this petition. Suffice it to state that five persons namely Bhurelal, Asharam, banne Khan, Mustaque Khan and Bhawani Prasad are being tried for the offences punishable under Section 302/34 of IPC. After committal, the charges were framed against these five accused persons. Since, accused persons denied the charges, the prosecution started examining its witnesses. P. W. 13 Aamna Bi and P. W. 14 Batul Bi are examined as eye witnesses. In their deposition, apart from other accused persons, they also named the present petitioner and stated that he also assaulted the deceased by lathi. Eventually, an application under section 319 of the Code was filed by the prosecution which has been allowed by the impugned order. Hence this petition. ( 3. ) THE ground which is taken in this petition is that the evidence of above said two witnesses is flimsy and in absentereo of the petitioner, the application should not have been allowed. According to the petitioner, his act is not Actus reus and, therefore, learned Court below erred in law by allowing the application under Section 319 of the Code and arraying the present petitioner as an accused. ( 4. ) LEARNED Government Advocate Smt. Sushila Paliwal, in support of impugned order, has contended that on the basis of the evidence arrived at, the present petitioner has been rightly arrayed as an accused by allowing the application filed by prosecution under Section 319 of the Code. ( 5. ) AFTER going through the averments made in the petition and after having heard learned Government Advocate I am of the view that this petition deserves to be dismissed. ( 6. ) THE deposition sheets of P. W. 13 Aaman Bi and P. W. 14 Batul Bi are placed on record. These witnesses are being examined by the prosecution as eyewitnesses. After recording their examination-in-chief, learned trial Judge deferred their statements. ( 6. ) THE deposition sheets of P. W. 13 Aaman Bi and P. W. 14 Batul Bi are placed on record. These witnesses are being examined by the prosecution as eyewitnesses. After recording their examination-in-chief, learned trial Judge deferred their statements. On going through the deposition sheets of these two witnesses, it is perceivable that they not only specifically named the present petitioner, but, had also stated that present petitioner took part in the commission of the offence as he dealt lathi blows on the person of the deceased. ( 7. ) THE ground which is taken in the petition is that in the police statements of these two witnesses, there is complete omission of the name of the present petitioner. But, this may be a ground to argue whether the petitioner is an innocent or not it is for the Court to decide it after appreciating the evidence. ( 8. ) SECTION 319 of the Code reads thus :- "319. 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 witnesses reheard; (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. " A plain reading of this section clearly shows that it applies to all Courts including Sessions Court and as such, a Sessions Court has the power to add any person not being accused, but against whom there appears sufficient evidence indicating his involvement in the offence as an accused and direct him to be tried along with other accused. No doubt, the powers conferred under this section to the Courts are extraordinary powers and should be used by the Court very sparingly and only if compelling reason exists for taking cognizance against the person of whom no notice has so far been taken. Thus, merely because the name of petitioner is not in the police statement would not exonerate him completely from the clutches of Section 319 of the Code. This Court while exercising jurisdiction under Section 482 of the Code is not deciding the appeal against the conviction and thus, what would be the impact if the name of petitioner is not stated in the police statement by the witnesses, is a question which could be left to be decided by the Trial Court, which shall test the evidence on the anvil of the entire factual scenario and the documents placed on record. For the present i. e. , since there is evidence available against the present petitioner in the deposition of above said two witnesses, according to me, there is sufficient material in order to attract the provisions of Section 319 of the Code. In the case of Geeta Ram Vs. Vedi Ram and others, (2002) 10 SCC 499 the Apex Court while analyzing Section 319 of the Code has laid down the law that this section is intended to meet the situation where in course of trial, if materials come up against some other persons, who have not been arrayed as accused, and are not being tried, the Court can summon them as accused. The Apex Court set aside the order of High Court interfering with the order issued by the Trial Judge under Section 319 of the Code, as erroneous. In the Case of Rukhsana Khatoon (Smt) Vs. Sakhawat Hussain and others, (2002) 10 SCC 661 again same principles are reiterated. The Apex Court set aside the order of High Court interfering with the order issued by the Trial Judge under Section 319 of the Code, as erroneous. In the Case of Rukhsana Khatoon (Smt) Vs. Sakhawat Hussain and others, (2002) 10 SCC 661 again same principles are reiterated. On going through the evidence of above said two witnesses, i am of the view that the requirement to invoke the jurisdiction as envisaged under Section 319 of the Code is triggered and set in motion. The Trial Court after reasonable satisfaction from the evidence, rightly allowed the application under Section 319 of the Code. ( 9. ) I have only expressed my opinion in regard to arraying present petitioner, so far the applicability of Section 319 of the Code is concerned. The trial Court shall be free at the time of passing of the judgment to scan the entire evidence and may pass necessary order in regard to petitioner. It is hereby further made clear that I have not expressed any opinion in regard to the commission of the offence by the present petitioner, and it is completely left open to the Trial Court to X-ray the entire case and come to the conclusion according to the material placed on record. ( 10. ) FOR the reasons stated hereinabove, this petition is found to be devoid of any substance and the same is hereby dismissed. M. Cr. C. dismissed.