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Madhya Pradesh High Court · body

2005 DIGILAW 440 (MP)

Sarabjit Singh Mokha v. State of M. P.

2005-03-25

U.C.MAHESHWARI

body2005
ORDER U.C. Maheshwari, J. 1. Petitioner/applicant has preferred this revision petition under section 397/401 of Criminal Procedure Code (for short 'the Code') against the order dated 12-1-2005 passed by Fourth Additional Sessions Judge, Jabalpur in Sessions Trial No. 542/04, whereby the said Court, itself suo motu, has taken over the cognizance under sections 395 and 397 of the Indian Penal Code (for short 'the I.P.C) against the applicant and directed to call him by issuing warrant of arrest. Being dissatisfied with it, hence this revision. 2. The material facts which are necessary to dispose of this revision are like this, according to the prosecution on dated 23-5-2004, at 8.45 a.m. applicant along with other accused namely Mohd. Sadik, Bharat, Mohd. Raseed, Tato alias Sher Khan, Hashnen Khan, Anil Dubey, Abdul Baseem, Mohd, Raeesh Bali, Sujeet Singh, Mohan Beliya, Ashish Namdeo, Manoj Kori, Mohd. Taheer and Mohd. Habeeb have committed offence of dacoity of domestic articles and jewellery/ornaments by entering into the house No. 707, of IVth Bridge to Bhaisasur Mandir Road, Napier Town, Police Station Gorakhpur, Jabalpur, belonging to complainant Vivyan Parera, at that time they were with deadly weapons and during this they caused grievous injuries to Vivyan Parera, Prakash and Hairi Joseph by creating criminal intimidation to cause their death and thereby they committed offence as defined under sections 395 and 397 of Indian Penal Code. 3. A first information report was lodged with Police Gorakhpur, Jabalpur regarding incident as Crime No. 400/04 under the abovesaid sections. After holding investigation a charge-sheet was submitted with Police report under section 173 of the Code in which it was said that the 90 days are going to be completed from the date of arrest of some accused then the charge-sheet was submitted with further contention that further charge-sheet would also be submitted against the remaining culprits. But, it is an undisputed fact that till today no any other charge-sheet has been submitted by the prosecution. 4. But, it is an undisputed fact that till today no any other charge-sheet has been submitted by the prosecution. 4. According to First Information Report (F.I.R.) and the case diary statements of the witnesses the name of present applicant was apparent in participation of the said incident of dacoity, and it is also undisputed that in spite of information regarding cognizable offence against the applicant, he was not arrested at the initial stage of the case and at the subsequent stage for one reason or another, charge-sheet was also not submitted against him along with other two accused namely Mohd. Sadik and Bharat. 5. After filing the aforesaid charge-sheet, concerning Magistrate has committed the same to the Sessions Court where the charges under sections 395 and 397 of Indian Penal Code were framed against only those accused persons who brought to the Court by investigating agency. The framed charge is as under: 6. In order to prove the abovesaid charges, the prosecution cited and examine witnesses and as submitted by the parties, upto the date of the impugned order twenty witnesses were already examined and some other eye witnesses are remained to be examined. At this stage, the trial Court has gone through the entire record and the recorded evidence and other circumstances and came to this conclusion that prima facie ingredients of the said offence are available on record to array the present applicant and Mohd. Sadik and Bharat, as an accused, who were not impleaded as an accused and also given direction to try them along with other accused in the same trial and to secure their presence a warrant of arrest was also directed by the impugned order, hence this revision. 7. Having heard the learned counsel for the applicant/petitioner and non-applicant/State and on perusing the papers placed on record and the impugned order, I am of the considered view that said order does not require any interference under the revisional jurisdiction. 8. Counsel for the applicant vehemently submitted that during investigation whatever evidence was collected by investigating agency on which no ingredients of alleged offences were made out so applicant was not charge-sheeted. He further submitted that when the prosecution has not sent the applicant for trial it shows that the prima facie evidence was not available against him and was properly omitted. He further submitted that when the prosecution has not sent the applicant for trial it shows that the prima facie evidence was not available against him and was properly omitted. His further submission was that even at the stage of framing of charges the applicant was not made an accused and after examining twenty or twenty two prosecution witnesses, there was no circumstances on the record to direct and implead to applicant as an accused in the trial. He further submitted that provisions of section 319 of the Code are very extra-ordinary and it should be used with very cautious and sparingly and whenever the chances or possibility of the conviction is remote against the proposed persons, in that circumstance the provision of section 319 of the Code cannot be invoked and in view of this principle it was not necessary for the trial Court to array the applicant as co-accused in the impugned trial. He further submitted that out of the said examined prosecution witnesses except P.W. 3 Vivyan Parera, no one has said or alleged any allegations against the applicant regarding offence and the testimony of Vivyan Parera is uncorroborated and cannot be consider for invoking the section 319 of the Code and most of the other witnesses have already become hostile and also cited some case laws which would be considered in following paras. 9. While, other hand, counsel for the State has opposed all the contentions raised by the applicant counsel and supported the impugned order and for giving additional strength to his submission has also cited some precedent of the Apex Court and various High Courts, which shall be considered at the appropriate stage but before considering the rival contention I would like to refer some part of the deposition of P.W. 3 Vivyan Parera Para 4, 11 and 13 are as under : 10. In view of the aforesaid statement of the complainant and other circumstances section 319 of the Code was invoked by the trial Court and said section could have been applied or not for that purpose firstly we have to see the section 319 of the Code which is as under: Section 319. In view of the aforesaid statement of the complainant and other circumstances section 319 of the Code was invoked by the trial Court and said section could have been applied or not for that purpose firstly we have to see the section 319 of the Code which is as under: Section 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 enquiry 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 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. 11. On plain reading of this section, it empowers to the trial Court that in course of any trial it appears from the evidence that any person not being an accused has committed any offence for which such person could be tried together with the accused the Court may proceed against him for the offence which appears to have been committed by him, and in the case at hand according to FIR, participation of the present applicant was apparently mentioned which was further supported by the other papers of the charge sheet and case diary statements of various witnesses. Although those are not very relevant at this stage, but it is apparent on the basis of the recorded statement that the applicant has committed the alleged act which can be tried along with other accused in the same trial. Although those are not very relevant at this stage, but it is apparent on the basis of the recorded statement that the applicant has committed the alleged act which can be tried along with other accused in the same trial. Therefore, Court was certainly in its limit under the vested power by law specially in view of the testimony of P.W. 3 Vivyan Parera as said above, and on going through the entire statement of this witness the active participation of the applicant in the offence is very clear and apparent and said incident took place this is also proved by other testimonies of examined witnesses although the name of accused have not been said by them regarding participation and whenever and wherever the direct evidence comes on record by the testimony of the single witness and the circumstance is supported by other evidence then at the stage of taking the cognizance under section 319 of the Code to array the new accused, density and weight of the evidence would not be examined but only prima facie ingredients of offence for trying the concerning person is examined and on this principle cognizance was rightly taken over against the applicant by trial Court. In addition to it, there was one more circumstance in the case, as alleged by the prosecution that regarding the said incident three material eye witnesses are remained to be examined. Besides this on factual side as per record I find sufficient circumstances against the applicant and also justified the impugned order. 12. So far as the legal precedent cited by the applicant concerned, I have gone through the decision of the Apex Court in Michael Machado and Another v. Central Bureau of Investigation and Another, (2000) 3 SCC 262 in which it was held in paras 11, 12 and 14 as under: 11. The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. 12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons. 14. The court while deciding whether to invoke the power under section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses reexamined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examined them and cross-examined them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the Court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole Labour already undertaken. Unless the Court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action. 13. Unless the Court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action. 13. In view of abovesaid Apex Court decision, the counsel for applicant submitted that there is no chance for conviction of the applicant and there is only slight suspicion regarding the offence committed by him and the same is not sufficient for taking cognizance against him and if such cognizance is maintained then the Renovo trial would be required and all the examined witnesses be recalled for re-examination and in spite of Renovo trial the object of prosecution of conviction would not be achieved and all the exercises would be a wasting of Labour and time of Court and respective person. 14. While the counsel for State distinguishing this aspect of the applicant and submitted that direct evidence has come on record and the testimony of said P.W. 3 has been further proved by other witnesses regarding the circumstances of incident. Therefore, it cannot be said that only slight suspicion or evidence is available against him or no sufficient circumstances are to achieve the conviction of the applicant. 15. On considering the above said submission, I am of the considered view, that direct and positive evidence has come up on the record in the testimony of the above said witness and the same are fully supported regarding the circumstances by some other witnesses who deposed about the incident which took place, therefore, this decision of the Apex Court is not profitable to the applicant in any manner and more so when the other material prosecution witnesses are yet to be examined. 16. On behalf of the applicant another decision of the Apex Court is also placed which was given in the matter of Krishnapa v. State of Karnataka reported in (2004) 7 SCC 792 in that case the application filed under section 319 of Code was dismissed by the trial Magistrate after appreciation of the recorded evidence on the ground that the possibility of the concerning appellant being convicted were remote therefore order of the trial Court was maintained. In abovesaid cited case after recording the entire evidence of the prosecution, statements of the accused had also been recorded and at that stage when none was to be examined on behalf of the prosecution, the situation was evaluated and the order was passed which are not the circumstance in the case at hand because apparently some direct evidence is already available on record and other material prosecution witnesses are yet to be examined then in the different facts and circumstances this case of the Apex Court is distinguishable and, therefore, with all respect the said case law is not helping the applicant in any manner. 17. His further reliance was placed in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others reported (1983) 1 SCC 1 which says that power under section 319 of the Code is extra-ordinary power and it can be used by the Court very sparingly and only in a compelling circumstance for taking cognizance against the person who was not produced by the prosecution as an accused and ultimately in this matter all discretion were left on the court concerned and, therefore, this precedent is also not fruitful to the applicant in any manner because compelling reasons are available in the case at hand. 18. He also cited a case of Rajasthan High Court in the matter of Ram Chandra v. State of Rajasthan reported in 2003 Cri.LJ. 3420 in which it was decided that most of the witnesses have already been examined and only 12 out of 54 witnesses are to be examined and the trial is pending since last 23 months then the application was moved under section 319 of the Code the same was dismissed because of if it is allowed then Renovo trial would have been required. In the said case the abovesaid case of Michael Machado's (supra) was also cited and some peculiar facts and circumstances of the concerning case the case was decided which are not the circumstances in the case at hand therefore, this case law is also not helpful to the applicant. 19. Lastly, counsel for applicant placed his reliance on the judgment of Kerala High Court in the case of K. Santhamma and Others v. Rahmath and Another reported in 2001 Cri.LJ. 3409. 19. Lastly, counsel for applicant placed his reliance on the judgment of Kerala High Court in the case of K. Santhamma and Others v. Rahmath and Another reported in 2001 Cri.LJ. 3409. This case was decided on the basis of the fact that no direct evidence led to show prima facie involvement of the petitioner and no compelling reasons existed to arraign them as accused in exercise of powers under section 319 of the Code and the order of subordinate Court was set aside. That is not the situation here in the case at hand in which direct evidence has already come up on the record along with the circumstances therefore this case is also not profitable to the applicant. 20. While on the other hand, the counsel for non-applicant has cited reported case of Girish Yadav and Others v. State of Madhya Pradesh reported in AIR 1996 SC 3098 , in which it is held in para 15 as under: 15. It was next submitted by learned senior counsel for the appellants that once the police had not submitted charge sheet against accused No. 5 to 8 the Court ought not to have roped them in. It is not possible to agree with this contention also. There is enough power with the Court in a proper case to exercise its jurisdiction under section 319, Criminal Procedure Code. In the present case as we have seen earlier, the High Court had remanded the matter for reconsideration in the light of the evidence that may be recorded by the Court and that is how after recording the evidence of eye witnesses process was re-issued against these appellants. As the evidence recorded by the Court showed that there was enough involvement of these accused in the commission of the offence and, therefore, they stood on the same pedestal as accused 1 to 4 they couldn't be said to have been wrongly proceeded against as accused under section 319, Criminal Procedure Code. 21. He also cited decision of Delhi High Court in the case of Mohan Wahi v. State (Central Bureau of Investigation), New Delhi reported in 1982 Cri.LJ. 2040 in which it is held in paras 6 and 7 as under : 6. 21. He also cited decision of Delhi High Court in the case of Mohan Wahi v. State (Central Bureau of Investigation), New Delhi reported in 1982 Cri.LJ. 2040 in which it is held in paras 6 and 7 as under : 6. Section 319 provides that where the Court hearing a case against certain accused finds from the evidence that any person other than the accused before it is also concerned in that very offence or in any offence for which he could be tried together with the accused, it may proceed against such person for the offence which he appears to have committed. Thus, under section 319(1) the Court has power to add any person not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. The words "it appears from the evidence that any person not being the accused has committed any offence" appearing in the said section are very significant and provide a key to the proper construction of the same. On their plain meaning all that they cannot is that there must be some legal evidence on the record showing involvement of any person other than the accused before the Court in the commission of an offence. Of course, the evidence must be sufficient to make out a prima facie case against such a person and satisfied all the essential ingredients constituting the offence for which he is sought to be prosecuted. However, the Court at that stage is not called upon to evaluate or appraise the evidence with a view of assess whether the evidence is sufficient for his ultimate conviction. In Joginder Singh's case (1979 Cri.LJ. 333) SO (supra) the Supreme Court was primarily concerns with the question whether the Sessions Court could be recourse to section 319(1) for summoning additional persons as accused who appeared to be involvement in the crime from the evidence led during the trial and direct them to stand trial along with those who had already been committed under section 209 of the Code. It was in this context that their Lordships observed that (Para 4): ...A Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.... 7. The Court is also concerned in the commission of crime. Surely it cannot be stretched to further imply that the evidence must be sufficient even to warrant conviction of such a person if tried along with other accused already before the Court. Thus, the sufficiency of evidence has to be looked at for the purpose of framing a charge and not with an eye on the ultimate conviction of such a person. It is for the simple reason that while considering the evidence which has come on the record and which indicate involvement of such person other than the accused in the commission of an offence, the Court is not required to evaluate or appraise the evidence, as it will amount to pre-judging the issue. That is the precise reason why sub-section (4) of section 319 requires that the proceedings in respect of such person shall be summoned afresh and the witnesses re-heard. It will naturally involve the process of framing of the charge and recording the evidence of the witnesses in the presence of the newly added accused. As for the observation of the Supreme Court that the "the Magistrate is entitled to summon additional accused against whom he considers that there was good evidence" appearing in Raghubans Dubey's case (1967 Cri. L.J. 1081) SC (supra) suffice it to remark that the same was made in a different context. The question therein was whether after taking cognisance of an offence under section 190(1)(b) the Magistrate was competent to summon additional accused even though such an accused had been dropped and was not sent up for trial by the police in final report under section 173. Evidently the Supreme Court was not called upon to consider the ambit and scope of section 319. 22. He also placed his reliance on a decision of this Court in the case of Duryodhan and Others v. State of M. P. and Another reported in 2001 (1) MPU 318 in which it is held in para 3 as under: 3. Evidently the Supreme Court was not called upon to consider the ambit and scope of section 319. 22. He also placed his reliance on a decision of this Court in the case of Duryodhan and Others v. State of M. P. and Another reported in 2001 (1) MPU 318 in which it is held in para 3 as under: 3. In the opinion of this Court, this argument cannot be accepted because occasion to exercise power under section 319 of the Code of Criminal Procedure would arise only when the investigating agency has omitted certain persons from the charge-sheet initially. The Court is not bound to consider the reason given by the investigating agency for omitting those accused persons because it is entitled to consider the case against the persons omitted from the charge-sheet, from the point of view of the evidence recorded during the trial. The evidence, obviously, is a statement made by a witness on oath and this statement may be given higher priority than the report of the investigating agency. In this particular case, if the Court was convinced from the evidence on record that there was a prima facie case for exercise of jurisdiction against the applicants, it would not be possible to interfere with at this stage in this revision. 23. His further reliance is of the case of Rakesh v. State of Haryana reported in AIR 2001 SC 2521 in which it is held in para 10 as under : 10. Hence, once the Sessions Court records a statement of the witness it would be part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercise Court's power under section 319, Criminal Procedure Code. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under section 319 should be exercised or not. But that stage would not arise while exercise Court's power under section 319, Criminal Procedure Code. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under section 319 should be exercised or not. Subsection (1) of section 319 itself provides that 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 for which he appears to have committed. Further in case of inquiry there may not be any question of cross-examining the witness. In State of H.P. v. Surinder Mohan (2000) 2 SCC 396 : (2000) AIR SCW 527 : AIR 2000 SC 1862 : 2000 Cri.LJ. 1429), this Court dealt with the contention that before granting pardon under section 306 of the Criminal Procedure Code, accused should be permitted to cross-examine such person whose evidence is recorded by the Magistrate. The Court negatived the said contention by holding that at the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross-examine would arise only at the time of trial. During the course of investigation by the police, the question of cross-examination by the accused does not arise. Similarly, under section 200, Criminal Procedure Code when the Magistrate before taking cognizance of the offence, that is, before issuing process holds the inquiry, the accused has no right to be heard, and, therefore, the question of cross-examination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for cross-examination and thereafter during trial if he is examined and cross-examined then there is no question of any prejudice caused to the accused. In such cases, at the most the accused may lose the chance to cross-examine the approver twice, that is to say, once before committal and the other at the time of trial. Similar would be the position under section 319, Criminal Procedure Code. 24. In such cases, at the most the accused may lose the chance to cross-examine the approver twice, that is to say, once before committal and the other at the time of trial. Similar would be the position under section 319, Criminal Procedure Code. 24. Although in the abovesaid case principle of section 200, Criminal Procedure Code was also examined but in any circumstance, the principle laid down in it is directly applicable to the case at hand. He also cited some other case on the same principle as said above which are as under : (1) Radharani Panda v. Aranpurna Padhi and Anr. reported in IX- 1994 (3) Crimes 119 of Orissa High Court (2) Ajay Kumar Rana v. State of Bihar and Others reported in 2001 CH.L.J. 3837 decision of Patna High Court. (3) E. P. Narayanan Nambiar v. State of Kerala and Others reported in 1989 Cri.LJ. 8 (Ker) : (1987) 1 Ker LT 871. (4) Jarnail Singh and Another v. State of Haryana and Another reported in AIR 2003 SC 4081 (5) Pukhraj v. State of Rajasthan reported in 1989 Cri.LJ. 2251 (Rajasthan High Court). (6) Raghubans Dubey v. State of Bihar reported in AIR 1967 SC 1167 , and; (7) Sunder Singh v. State of M.P. reported in 2005 (1) MPU 76. 25. In view of the aforesaid precedents reflect that two conditions should be fulfilled to implead any other person as an accused in the case for invoking under section 319 of the Code; firstly, that other person has committed an offence; and, secondly is that, for such offence that other person could as well as be tried along with the already arraigned as accused and in view of the aforesaid appreciation it is apparent that the direct evidence in the testimony of witnesses is available on record against the applicant and, therefore, his participation regarding the alleged incident under sections 395 and 397, Indian Penal Code are prima facie made out and further looking to F.I.R. and the other circumstances of the case and the initial charge which was framed by the trial Court against the existing accused in which the name of the present applicant was also mentioned in participation of the incident gives sufficient circumstances to proceed against the applicant along with the existing accused. But, fortunately or unfortunately in spite of the cognizable offence and availability of the sufficient evidence in the charge-sheet the investigating agency has not sent to applicant for trial with the report of section 173 of the Code but during recording of the evidence if it was found by the trial Court and arraigned him as an accused suo motu then according to my considered view the trial Court has not committed any error of jurisdiction. 26. Before parting with this case I would like to state in the facts and circumstances of the case that a person like complainant was a victim of an offence of dacoity and entire incident was mentioned in the First Information Report to the police and was also said in interrogation in investigation, in spite of the cognizable offence applicant was not arraigned as an accused. Apart this at the earlier stage when the police report under section 173 of the Code was filed, it was said that remaining accused would be arraigned by filing of further charge-sheet but on perusing the record and asking the concerning counsel for the State it was submitted that no subsequent charge-sheet has been submitted. A citizen, like the complainant can only approach the public authority like police and if such authority are not discharging their respective duties to arraign the concerning culprits before the Court of law then certainly this may destroy the faith in the system of security of a citizen. Therefore, it is directed to Senior Police Authority to look into this matter and examine that in spite of cognizable offence and first information report and availability of some other evidence why the all concerning culprits were not arraigned before the Court for trial; and whatever the proceedings are taken up by the said Senior Police Officer, on examining the matter if any subordinate officer or officers are found guilty then appropriate action should be taken against him/them under intimation to this Court and this should be done within three months from the date of this order. The counsel for State and the Registry are hereby directed to inform the concerning higher police officials. 27. The counsel for State and the Registry are hereby directed to inform the concerning higher police officials. 27. In view of the aforesaid premises, I have not found any perversity or illegality or irregularity in the impugned order and as such, no error of jurisdiction was committed by the trial Court in passing the impugned order and in arraigning the accused in the case at hand. But it is further directed that any observations which are made in this order shall not influence the trial or defence of the applicant in any manner. 28. Therefore, this revision has no merits and the same is dismissed.