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Andhra High Court · body

2006 DIGILAW 332 (AP)

D. Om Prakash v. State of A. P.

2006-03-08

P.S.NARAYANA

body2006
ORDER This Criminal Revision Case is filed under Section 397 read with 401 of Criminal Procedure Code (in short hereinafter referred to as Code) by the petitioner-accused No.4. 2. Sri K. Vinaya Kumar, the learned counsel representing the petitioner would contend that the learned Judicial Magistrate of First Class, Suryapet while considering Crl.M.P .Nos.3784 and 3785 of 2003 to recall P.Ws.1 and 2, arrived at a conclusion that in the light of the material available on record, L.W.10, the present petitioner to be shown as accused No.4 and for his appearance and for further proceedings, matter had been adjourned. The learned Counsel would also maintain that absolutely, there is no culpability on the part of the petitioner and the petitioner himself on 3-10-1998 addressed a letter to the Investigating Officer admitting his signatures on the application form and pleaded that out of confidence in Ch. Devaiah, Craft Teacher of the same school, who was looking after the work of filling up of applications, he had signed. The learned Magistrate, no doubt, recorded certain reasons and came to a conclusion that the petitioner also to be shown as A-4. 3. The learned Public Prosecutor would maintain that in the facts and circumstances of the case well explained, inasmuch as the learned Magistrate has power under Section 319 of the Code and inasmuch as the learned Magistrate exercised the discretion properly, the said discretion need not be disturbed by this Court. 4. Heard the learned counsel. 5. The present petitioner-accused was the then Head Master of Z.P. High School shown as the witness on behalf of the prosecution as L.W.10. 6. The case of the prosecution is that the then M.D.P.O. Suryapeta (P.W.3) received unanimous letter, dated 24-9-1998 wherein it was brought to her notice that in certain schools, some students were allowed to write S.S.C. examination by impersonation colluding with the management of some schools and Colleges. Several other details had been narrated in relation to the said letter. P.W.1 lodged Ex. P-1 report and the other allegations made as against the other accused need not be dealt with at length at this juncture. It is stated that the investigation reveals that A-1 and A-2 are distant relatives and A-3 who was working as clerk in the Z.P. High School also belongs to a neighbouring village. Certain specific allegations, no doubt, are made as against A-3. It is stated that the investigation reveals that A-1 and A-2 are distant relatives and A-3 who was working as clerk in the Z.P. High School also belongs to a neighbouring village. Certain specific allegations, no doubt, are made as against A-3. The petitioner who is proposed to be shown as A-4 was shown as L.W. 10 by the Investigation agency. On 3-10-1998, he himself had addressed a letter admitting his signatures on application form but, however, stated that out of confidence in Ch. Devaiah, Craft Teacher of the same school who was looking after the work of filling up of applications and affixture of photos, he had signed. The subsequent signatures and hand writings of A-1 to A-3 and other allegations in the charge sheet, the F.S.L. Report and other material, no doubt, had been discussed at length by the learned Magistrate. 7. Section 319 of the Code reads as follows: "Power to proceed against other persons appearing to be guilty of offence:- (1) Where, in the course of any enquiry into, of 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." 8. It is no doubt true that the learned Magistrate exercised the powers suo motu. Such power can be exercised is the view expressed in Mohan Wahi v. State (Central Bureau of Investigation), New Delhi, 1982 Crl.L.J. 2040. It is no doubt true that the learned Magistrate exercised the powers suo motu. Such power can be exercised is the view expressed in Mohan Wahi v. State (Central Bureau of Investigation), New Delhi, 1982 Crl.L.J. 2040. In the light of the language of Section 319 of the Code the Court can exercise suo motu powers and there cannot be any doubt or controversy or two opinions in relation thereto. 9. However, here is a peculiar case where the retired Head Master at present is being brought in as A-4. It is needless to say that even on the strength of the allegations made in the Charge sheet at no stretch of imagination, it can be said that any of the ingredients specified either under Sections 419 or 420 I.P.C. would be attracted so far as they relate to the present petitioner A-4. While exercising the discretion, the learned Magistrate may have to apply the mind and then pass appropriate orders, It is also pertinent to note that in fact, the present petitioner, on 3-10-1999 himself addressed a letter to the Investigating agency admitting his signatures on application form and also explaining the reason that out of confidence in Ch. Devaiah, Craft Teacher of the same School, who was looking after the work of filling up of applications, he had signed. At any stretch of imagination, it cannot be said that this petitioner can be fastened with any criminal liability whatsoever especially in the light of the ingredients to be satisfied in relation to the offences under Sections 419 and 420 I.P.C. Persons unconcerned cannot be added as accused in a criminal proceeding by exercising power under Section 319 of the Code. Hence, this Court is thoroughly satisfied that the learned Magistrate had not exercised his discretion judiciously by properly applying the mind to the facts of the case and also the offences with which A-1 and A-3 had been charged with. 10. Accordingly, the Criminal proceedings proposed to be initiated against A-4 cannot be sustained and they are liable to be quashed and impugned order dated 8th September, 2003 made in C.C.No.1933 of 2000 is hereby quashed. 11. In the result, the Criminal Revision Case is hereby allowed.