Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 661 (MP)

RAM KISHAN YADAV v. STATE OF M. P.

2007-06-29

B.M.GUPTA

body2007
B. M. GUPTA, J. ( 1 ) THIS petition has been preferred by the petitioners feeling aggrieved with the order dated 11th April, 2007, passed by Second additional Sessions Judge (Fast Track), datia, M. P. in Sessions Case No. 1/07 whereby, the learned Judge has taken cognizance against the petitioners under the provision of Section 319 Crpc for the offence punishable under Sections 147,148 and 302/149, 323/149 and 294 of IPC. There is no dispute on the following facts in both the parties. 1]. That in FIR, allegation against total eleven accused persons including the petitioners were lodged. 2]. That, as per the prosecution case all those eleven persons inflicted lathi, farsa injuries to the persons of the opposite party and by that beating, two persons died and rest of them became injured. 3]. That apart from the report, six eyewitnesses including witness hakim Singh and Awdeshbai have stated against the petitioners in their statement under Section 161 of Crpc during investigation and have supported the case of the prosecution. 4]. That during trial, the statements of witnesses Hakim Singh and awdeshbai recorded as PW4 and pw2, both have supported the prosecution story and have stated that along with other nine accused persons, these two petitioners have also jointly assaulted the deceased and also inflicted the injury to the injured. ( 2 ) IN addition to the aforementioned admitted facts, Shri Pateria has stated that during investigation, total 25 witnesses were examined, out of them only six witnesses have supported the prosecution story about beating the injured and the deceased by all the 11 accused persons including the present petitioners. Rest of the 19 witnesses did not speak anything against the petitioners. Out of those 19, three were the eyewitnesses. After investigation, the learned Investigating Officer came to the conclusion that the petitioners were not present at the spot, hence he did not file challan against them. Without considering this fact, the learned Judge has passed the impugned order, which is erroneous on this point. That apart, without providing an opportunity of hearing to the petitioners, passing the impugned order against them is erroneous on this count also. ( 3 ) SHRI Sihare has submitted that in the fir and in the statements of material eyewitnesses, the names of present petitioners have appeared among all the assailants. That apart, without providing an opportunity of hearing to the petitioners, passing the impugned order against them is erroneous on this count also. ( 3 ) SHRI Sihare has submitted that in the fir and in the statements of material eyewitnesses, the names of present petitioners have appeared among all the assailants. He has further submitted that during trial, witnesses Hakim Singh (PW4) and awdeshbai (PW2) have stated against the petitioners and it is sufficient evidence for justification of the impugned order. ( 4 ) THE first contention of Shri Pateria that out of 25 witnesses examined by the Investigating Officer during investigation, only 6 witnesses have supported the prosecution story and rest of the 19 witnesses did not speak anything against the petitioners is not material to be considered at this stage. It is not the contention of Shri Pateria that all 25 witnesses examined were eyewitnesses. During investigation, a very few witnesses are examined in the capacity of eyewitnesses and the rest of the witnesses are examined for other ancillary purposes e. g. arrest, seizure, spot memos, panchayatnama lash (Memo of dead body) etc. Out of these 6 witnesses, who supported the prosecution story as per the contention of Shri Pateria, two witnesses Awdhesbai (PW2) and Hakim singh (PW4) are also included. Out of the aforementioned 6 witnesses, these two have been examined during trial and undisputedly they have supported the prosecution story. A few extracts from their statements are as under: ( 5 ) FOR taking cognizance under Section 319 of Crpc the evidence of the witnesses examined during trial is material and not the evidence collected during investigation. For this purpose, Court is to be hopeful that there is a reasonable prospect of the case as against the newly summoned accused ending in conviction. On perusal of the statements of the aforementioned two eyewitnesses examined during trial, the required satisfaction has rightly been gathered by the learned Judge. On perusal of the statements of these two witnesses, it is apparent that the present petitioners were also involved along with the 9 accused persons against whom challan was filed. On perusal of the statements of the aforementioned two eyewitnesses examined during trial, the required satisfaction has rightly been gathered by the learned Judge. On perusal of the statements of these two witnesses, it is apparent that the present petitioners were also involved along with the 9 accused persons against whom challan was filed. ( 6 ) WITH regard to the second contention of Shri Pateria that the petitioners were not heard before passing the impugned order against them, on perusal of Section 319 of crpc, it does not appear that before passing an order taking cognizance against new person an opportunity of hearing is to be provided to him. It is only sufficient that if a Court during the course of any enquiry into, or trial of an offence comes to the conclusion from the evidence that any other person not being the accused has committed any offence for which that person ought to be tried together with the accused, the court may proceed against such person for the offence which appears against him to be committed. It is not provided that the new accused who is to be summoned is required to be heard before passing such order. As it has been expressed by the Apex court in Raj Kishore Prasad v. State of bihar and another In this case, while considering the question as to whether a Magistrate who is committing the case for trial to the Court of Session can take cognizance under Section 319 of Crpc during committal proceedings or not, their Lordships have expressed their views about the policy of the legislature with regard to trial, as it is incorporated in chapter XVIII of Crpc and have observed in para 15 - "addition of an accused by summoning or re-summoning a discharged accused, and that too without hearing the accused, has only been permitted in the manner provided by Section 319, of Crpc on evidence adduced during the course of trial, and in no other way. " Although not very specific on this point yet while considering the question as to whether an opportunity of cross-examining the witness is to be provided to such newly brought accused before passing an order against him under Section 319 of Crpc, the Apex Court in the case of Rakesh v. State of Haryana, has observed in para 13 - "the question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. " ( 7 ) APART from the aforementioned observation of the Apex Court, the High Court of andhra Pradesh, Punjab and Haryana and Allahabad have taken the similar view in the following cases: 1. Rawoof Patel and another v. State and another. 2. Chiragali Mohammad Abdul Abeem Ahmed v. State, rep. by Inspector of Police, C. I. D. 3. Ved Prakash and another v. State ofharyana. 4. Dinesh Chandra Tiwari v. State of U. P. and others. ( 8 ) IN the case of Hrushikesh Pradhan and ors. v. State of Orissa and Ors. a single Bench of Orissa High Court has remanded the case on the special request of petitioners consid ering the peculiar circumstances of the case. The following relevant extracts of the judgment will clarify as to under what circumstances this direction was given: 2. Learned Additional Sessions judge found that though majority of the witnesses had not stated anything about the alleged role played by the present petitioners during investigation, yet their evidence in Court amply reflected their role in the alleged occurrence. That is why he directed their impletion. 3. With reference to evidence of some of the witnesses, it is stated that non-application of mind by learned Sessions Judge is apparent because he has concluded these witnesses to have implicated the present petitioners, though they did not breathe a word about them. 6. There is substance in the plea of learned counsel for petitioners that there is some error in the conclusion of learned Additional Sessions Judge about evidence of pws. 6. There is substance in the plea of learned counsel for petitioners that there is some error in the conclusion of learned Additional Sessions Judge about evidence of pws. 4 to 12 being categorical and specific about the role of present petitioners. The petition was disposed of on the day it was presented (i. e. 31. 10. 1994 ). A grievance is made by petitioners that adequate opportunity was not granted to present their side of case to the accused persons. It is really the persons to be impleaded who can make a grievance about impugned action. Whether power under Section 319 is to be exercised or not would depend on circumstances of the case. Learned counsel for petitioners states that a motion shall be made on 21. 6. 1995 before learned Additional Sessions Judge, kendrapara for reconsideration of the matter, and prays that he may be directed to reconsider the matter. In the peculiar circumstances of the case, I accept the prayer. If the motion is made, the same shall be disposed of by learned Additional Sessions judge in accordance with law. " It appears that despite contention of the petitioners in para 6 as highlighted, the hon'ble Judge did not observe that prior hearing of the newly summoned accused is required. Only in aforementioned peculiar circumstances of the case a direction to Additional Sessions Judge has been given. In view of the aforequoted observation of the apex Court as well as of the other High courts, this contention of Shri Pateria also does not deserve to be sustained. ( 9 ) IN view of all as discussed hereinabove, both the contentions of Shri Pateria do not deserve to be sustained. There appears no irregularity or abuse of the process of the court. Hence, the petition is dismissed. Petition dismissed. .