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Madhya Pradesh High Court · body

2005 DIGILAW 699 (MP)

JAGJEEVAN TIWARI v. STATE OF M. P.

2005-07-11

SUGANDHI LAL JAIN

body2005
ORDER S.L. Jain, J. Invoking revisional jurisdiction of this Court, applicant Jagjeevan Tiwari has filed this petition u/s 397 read with section 401 of the Code of Criminal Procedure for setting aside the order dated 24-2004 passed by IVth Additional Sessions Judge, Rewa in Sessions Trial No. 133/2002. The facts giving rise to this application are that Sharad Chandra Tiwari, respondent No. 2 on 9-11-2001 lodged a First Information Report at police Station, Mangawan in which it was alleged inter alia that on the date of incident when he along with his brother Ravi Prakash Tiwari was constructing house on his land, nine persons including the applicant reached the spot. Applicant asked him to stop the construction work. One Munnalal whipped a country made pistol. When his brother Ravi Prakash protested, said Munnalal fired a shot from his Katta which hit Ravi Prakash. Applicant enfold complainant and some of the co-accused assaulted him. Co-accused Mohd. Rahees and Ajay Mishra also fired the shots from their respective Kattas aiming him. At the time of incident, the accused persons were saying that the complainant party may be done to death. When on hearing the commotion, some of the persons gathered at the spot, the accused persons fled away from the spot. On the basis of the aforesaid FIR, Crime No. 350/01 was registered at Police station, Mangawan under sections 147, 148, 149, 307, 323 and 294 of the Indian Penal Code against nine persons including the applicant. During investigation, the statements of prosecution witnesses were recorded. In his statement u/s 161 of the Criminal Procedure Code complainant Sharad Chandra stated that the name of the petitioner was stated by him in the FIR out of enmity. The applicant Jagjeevan did not participate in the incident. After investigation, a challan was filed against eight accused persons. While filing the challan, the name of the applicant was removed from the array of the accused persons. The case was committed to the Court of Sessions and the trial proceeded against eight accused persons in Sessions Trial No. 133/02. During trial against eight accused persons statements of Sharad Tiwari and some other witnesses namely Ravi Prakash, Akshay and Narendra Kumar were recorded wherein it was alleged against the applicant also that he fired a shot by means of Katta aiming Sharad Chandra. On 4-8-2003, respondent No. 2. During trial against eight accused persons statements of Sharad Tiwari and some other witnesses namely Ravi Prakash, Akshay and Narendra Kumar were recorded wherein it was alleged against the applicant also that he fired a shot by means of Katta aiming Sharad Chandra. On 4-8-2003, respondent No. 2. Sharad Chandra Tiwari filed an application u/s 319 of the Criminal Procedure Code before the trial Court praying that the FIR was lodged against Jagjeevan also but because of the political influence, the name of Jagjeevan was removed from the array of the accused persons. Because of the shot fired by Jagjeevan finger of Ravi Prakash was segregated. Therefore, Jagjeevan be also added as an accused. The application was opposed by the applicant on the ground that he is being falsely implicated. Earlier on his complaint Sharad Chandra was convicted. A false case has been foisted against him by way of retaliation. In the statements recorded u/s 161 of the Criminal Procedure Code prosecution witnesses did not allege anything against him. After hearing the parties, the trial Court on the basis of the evidence of Ravi Prakash, Sharad Chandra, Akshay Kumar and Narendra Kumar, allowed the application u/s 319 of the Criminal Procedure Code and took the cognizance against the applicant for the offences punishable under sections 148, 149, 307 and 325 of the Indian Penal Code and directed the issuance of warrant of arrest against him. I have heard Shri Prakash Upadhyaya, learned counsel for the applicant and Shri Asim Dixit, G.A. for the respondent No. 1. None appeared for respondents No. 2 and 3 at the time of hearing. Learned counsel for the applicant submits that the Court can proceed against any person u/s 319 of the Criminal Procedure Code only if there is some evidence to show that the same person has committed an offence of which the Court can take cognizance. In the absence of any such evidence, such person cannot be summoned as a co-accused. The provisions regarding joinder of accused are merely enabling and they do not give any person a right to insist that some one else be joined, at the trial with the accused persons. In the absence of any such evidence, such person cannot be summoned as a co-accused. The provisions regarding joinder of accused are merely enabling and they do not give any person a right to insist that some one else be joined, at the trial with the accused persons. The trial Court took cognizance u/s 319 of the Criminal Procedure Code against the applicant on the statements of the witnesses to the effect that he was also present at the time of incident but there was no other material to justify or corroborate these statements, therefore, the order of the trial Court impleading the petitioner with the accused persons is illegal. Learned counsel for the applicant submits that in his statement recorded u/s 161 of the Criminal Procedure Code complainant Sharad himself had stated that the name of the petitioner was added due to enmity. After proper investigation, the investigating officer found that the applicant had not committed any offence and the challan was not filed against the applicant. When the charge sheet did not reveal any offence, the trial Court could not have taken cognizance against the applicant. The contention is not acceptable. The name of the applicant was not only mentioned in the FIR but the statements of the witnesses as recorded during the trial also reveal ex-facie involvement of the petitioner in the commission of the offence. It is true that existence of some case is an essential requirement for exercising of powers u/s 319 of the Criminal Procedure Code but Court is to see if a prima-facie case is made out and not to consider the details and weigh the evidence. The order of the trial Court is based on sufficient evidence and is not liable to be quashed. It cannot be said that there was no material placed before the trial Court to show that there were compelling reasons to proceed against the applicant, therefore, the order of the trial Court cannot be said to be wholly unwarranted. Learned counsel for the applicant relying on Michael Machado v. Central Bureau of Investigation, AIR 2000 SC U27 submits that the powers u/s 319 are discretionary and 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 another person also with the offence. Learned counsel for the applicant relying on Michael Machado v. Central Bureau of Investigation, AIR 2000 SC U27 submits that the powers u/s 319 are discretionary and 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 another person also with the offence. 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. He also submits that there is no compelling duty on the Court to proceed against other person, therefore, at this stage when most of the prosecution witnesses were already examined, the trial Court should not have allowed the application. In the case of Michael Machado (supra) cited by the learned counsel as many as 54 witnesses were examined before filing of the application u/s 319 of the Criminal Procedure Code but so far as the present case is concerned, only 8 prosecution witnesses were examined. The application u/s 319 of the Criminal Procedure Code was filed without any inordinate delay. When the trial Court on the basis of material on record was satisfied that a prima facie case is made out against the applicant, this Court is not to consider the details and weigh the evidence. Order of the trial Court is based on sufficient evidence and is not liable to be quashed. The trial of the case does not cease till the proceedings come to an end by the conviction or the acquittal. Merely because some of the prosecution witnesses were examined it cannot be said that trial has come to an end. Where the trial Court was satisfied from the evidence collected that the applicant also committed an offence and he should be tried along with the already arraigned accused, merely on the ground that the application was filed after recording the evidence of some of the witnesses and the proceedings in respect of the petitioner shall be required to be recommenced afresh, the order of the trial Court cannot be quashed. The order impugned cannot be said to have been passed on invalid grounds. The order impugned cannot be said to have been passed on invalid grounds. Where the conclusion of the trial Court was neither unreasonable nor illegal it would not be appropriate for this Court to interfere. The application is, therefore, sans merit and the same is dismissed.