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Madhya Pradesh High Court · body

2007 DIGILAW 176 (MP)

Pradeep Sharma v. State of M. P.

2007-02-13

B.M.GUPTA

body2007
ORDER 1. Heard finally with the consent of both the parties at admission stage. The instant petition is for invoking the inherent powers of this Court under section 482 of CrPC for setting aside the impugned order dated 17th August 2006 passed by Additional Sessions Judge, Sabalgarh in Sessions Trial No. 45/03, wherein the learned Judge, while allowing an application filed on behalf of the complainant under section 319 of CrPC has taken cognizance against the petitioner for the offence punishable under section 302/34 of IPC and consequently issued warrant of arrest against him. 2. Shri V.K. Saxena, the learned Senior Advocate for petitioner, while drawing attention at the copy of FIR dated 26.5.2002 submits that in the report, no name of any person as an accused was mentioned. He further drawn the attention at the statements of Laxmi Devi, Laxmi Narayan, Ramswaroop, Ramveer, Krishna, Jagdish, Kamlesh, Roshan, Girish, Durjan, Darshanlal, Parsuram, Ram Dayal, Man Singh, Chotibai, Prem Bai, Parmanand, Ramjilal and Pappu @ Ramlala and submits that during recording of these statements of 19 witnesses under section 161 of CrPC no allegation was levelled against the petitioner. He further submits that after investigation charge-sheet was filed only against four accused persons, who are respondents No.2 to 5 namely, Manotoo @ Om Prakash, Sabu, Shivcharan and Halke @ Raghunandan. He also submits that during trial the learned trial Judge recorded the statements of the 19 witnesses from 21st Feburary, 2003 to 24th March, 2006. Although during the course of recording of the prosecution witnesses impugned application under section 319 of CrPC was filed on 19.1.2005 on behalf of the complainant, however the same has been disposed of vide impugned order at the time, when the case was fixed for final arguments. While highlighting the impugned order, Shri Saxena submits that only on the statements of witnesses Kamlesh (PW 9), Roshan (PW 10), Girish (PW 11), Durjan (PW 12) and Darshan (PW 13), the impugned order has been passed. He also draws the attention at various paragraphs of the statements of these witnesses and submits that omissions, with regard to the fact that the name of the petitioner neither appears in the FIR nor in the statements recorded during investigation, have been proved. In view of this factual scenario, Shri Saxena puts reliance on the following judgments -- 1. He also draws the attention at various paragraphs of the statements of these witnesses and submits that omissions, with regard to the fact that the name of the petitioner neither appears in the FIR nor in the statements recorded during investigation, have been proved. In view of this factual scenario, Shri Saxena puts reliance on the following judgments -- 1. Michael Machado and another v. Central Bureau of Investigation and another [2000 CrLR (SC) 265]. 2. Rajendra Chaturvedi v. State of M.P. [2005 CriLJ 2369]. and submits, that unless the Court is hopeful of seeking conviction, merely on the basis of such statements recorded during trial, cognizance ought not to have been taken against the petitioner. He further submits that the provision of section 319 of CrPC gives a discretion to the Court and such discretion should always be used very sparingly, where fruitful results are expected. Consideration of time consumed during investigation and trial is also very material and that should also be considered before taking cognizance. 3. Shri Mahore countering the contentions submits that this impugned application was filed on 19.1.2005 immediately after recording of the statements of aforementioned five witnesses. However, it has been disposed of vide impugned order when the case was fixed for final arguments. Thus the delay in disposal of the application can not be attributed to the complainant. He fairly concedes, that neither the name of the petitioner appears nor any allegations against him are found in the FIR and aforementioned 19 statements recorded during the course of investigation. However, he submits that the omissions as highlighted by Shri Saxena in the statements of the aforementioned five witnesses, ought not be considered at this stage. These are only to be considered at the stage of judgment. He further submits that as per the statements of these five witnesses, petitioner was seen alongwith other co-accused with sharp edged weapon at the spot, where the dead-body was found and it is sufficient evidence against him and while considering the same, the impugned order has been passed by the learned Judge, which is totally justified. He further submits that as per the statements of these five witnesses, petitioner was seen alongwith other co-accused with sharp edged weapon at the spot, where the dead-body was found and it is sufficient evidence against him and while considering the same, the impugned order has been passed by the learned Judge, which is totally justified. He further submits that in the FIR names could not be mentioned, only because that up to that time, no assailants were known and during the course of investigation his name was not written by the investigating agency on account of his being an influential person, as it has been mentioned by the aforementioned five witnesses in their statements. 4. The provisions of section 319 of CrPC are as under: 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 summon, 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 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. (emphasis supplied) As it appears by the word 'may', which has been used by the legislature, such power given to the Courts appears discretionary which is to be used for seeking the ends of justice. It is not sufficient that the Court entertained some doubt against a person with regard to his involvement in commission of the offence. (emphasis supplied) As it appears by the word 'may', which has been used by the legislature, such power given to the Courts appears discretionary which is to be used for seeking the ends of justice. It is not sufficient that the Court entertained some doubt against a person with regard to his involvement in commission of the offence. Unless the Court is hopeful that there is reasonable expectation of seeking conviction against that person who is to be arrayed as an accused, the Court should refrain from invoking such powers against him. 5. In the instant case, after concluding the investigation, challan was filed against respondents No.2 to 5 on 25.3.2003. Despite the fact that the challan was not filed against the petitioner and that the statements recorded during investigation were not written as per the statements of witnesses, no step including filing complaint against the investigating agency to the superior officers or filing a private complaint was taken by the complainant at that time. This omission is very material, which cannot be left aside only on the explanation given by the witnesses that the petitioner being influential person, his name was left during investigation. On account of this omission, the required hope, that there is reasonable prospect of the case against the petitioner, ending in conviction, does not appear. The impugned order has been passed at the time of hearing the final arguments, when the trial has already concluded. In view of this, as observed by the apex Court in the aforementioned judgment of Michael Machado (supra), I am of the considered opinion, that a situation has not reached as to waste the whole massive evidence already collected by the trial Court so far, against the remaining four accused persons in the case. 6. In view of the aforesaid, I am of the opinion that trial Court has committed an illegality in exercising the discretion in favour of the complainant and against the petitioner, taking cognizance against him under the aforementioned offence. Consequently, the impugned order is, therefore, set aside.