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Madhya Pradesh High Court · body

2007 DIGILAW 926 (MP)

Rameshchandra Onkarlalji Sharma v. State of M. P.

2007-08-24

W.A.SHAH

body2007
ORDER :- This is a revision under S. 397 read with Section 401 of the Code of Criminal Procedure ("Code" hereafter). It arises out of order contained in judgment dated 25-4-2007 passed by learned Third Additional Sessions Judge, Mandsaur in Sessions Trial No. 56/2006 whereby the learned Additional Sessions Judge vide para 70 of the judgment directed for arraignment of the applicant as accused in exercise of powers under Section 319 of the Code. 2. Multum in parvo, one Smt. Roopkunwarbai was assaulted by Sunil, Naharsingh, Vinod and Kamal and the matter was reported to the police. In the report allegation of exhortation was levied against the petitioner to the effect that he was present on the scene of occurrence and exhorted the accused persons stated above to assault the said lady. On the basis of the said report police had registered an offence at Crime No. 320/2005 for offences punishable under Sections 147, 148, 307 and 506(II) of the Penal Code against the above named accused as well as the petitioner. When the investigation took place, the petitioner already showed to the Investigation Officer that he was not present on the spot; he being an Advocate; at the relevant time, he was working in Court due to inimical terms prevailing between the complainant party and him and his family, the petitioner was falsely implicated in the case. It was further shown by him that the injured lady Smt. Roopkunwarbai and her family members were on constant inimical terms with the petitioner and his family since she had lost Municipal Elections, once against the wife and other time against the son of the petitioner. It was also shown that upon the complaints being made by the wife and son of the petitioner, the husband of the injured lady was removed from the service of Municipality. As also it was shown that the petitioner was conducting some cases against the injured lady. Seemingly after an elaborate investigation, the police found that the petitioner was not present on the scene of occurrence; he was unnecessarily involved in the case, therefore, the police did not choose to file charge-sheet against him and filed the charge-sheet against rest of the accused. 3. After completion of the trial, an application under Section 319 of the Code was filed by the prosecution before the learned Trial Court for implicating the petitioner in the case. 3. After completion of the trial, an application under Section 319 of the Code was filed by the prosecution before the learned Trial Court for implicating the petitioner in the case. The learned trial Court finally decided the case by pronouncing its judgment on 25-4-2007 in which while convicting the accused who were facing trial, as per para 70 of the judgment further ordered to start prosecution under Section 319 of the Code against the petitioner. Thereafter the learned Trial Court started proceedings against the petitioner and vide order dated 27-4-2007 issued a non-bailable warrant against him. Feeling aggrieved of the above, the petitioner has come up to this Court in this revision. 4. The learned counsel for the petitioner argued in support of the petition on two grounds only, viz. (i) that before passing the order impugned under Section 319 of the Code the learned Court below did not issue any show-cause notice to the petitioner; and (ii) that under the provisions of Section 319 of the Code the Court can proceed to implicate any other person, who has not been made an accused in the case, if some evidence about his involvement comes on record during trial so that he could be tried together with other co-accused. The Court cannot pass any order under Section 319 of the Code in the judgment for initiating the proceedings of prosecution by the Court itself against such a person. The learned counsel submitted that the order of the learned Court below to make the petitioner an accused in the fashion under attack is without jurisdiction. 5. The learned Deputy Government Advocate for the Respondent/State per contra supported the impugned order. 6. The argument of the learned counsel for the petitioner that for want of notice to show-cause the impugned order is bad in law, is too late now because vide 2001 (II) MPWN 105 (Rajendra Singh v. Administration) it had been held that under the provisions of Section 319 of the Code the procedure of issuing show-cause notice was not contemplated. Therefore, I am not impressed by the said argument of the learned counsel and it needs to be brushed aside. 7. Before coming to the second contention of the learned counsel, it is useful to quote Section 319 of the Code. It reads as under :- "319. Therefore, I am not impressed by the said argument of the learned counsel and it needs to be brushed aside. 7. Before coming to the second contention of the learned counsel, it is useful to quote Section 319 of the Code. It reads 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 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 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." 8. As is shown above the sub-section (1) of Section 319 of the Code speaks that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence..... for which such person could be tried together with the accused, the Court may proceed against such person........ Therefore, the language of Section 319 of the Code is clear and it does not admit of the exercise of power conferred upon the Court under this section beyond the stage of collection of evidence. In this respect the following observations of the Apex Court from (1998) 7 SCC 149 : (1998 Cri LJ 4618) (Ranjit Singh v. State of Punjab) will pay perusal (Para 19 of Cri LJ) :- "20. In this respect the following observations of the Apex Court from (1998) 7 SCC 149 : (1998 Cri LJ 4618) (Ranjit Singh v. State of Punjab) will pay perusal (Para 19 of Cri LJ) :- "20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers." 9. In view of the above the learned Court below exercised the jurisdiction impugned that could not have been exercised by him as the procedure did not make room for such an exercise at such a stage. In a Court during the course of any inquiry or trial of an offence, as soon as some evidence comes on record which incriminates the person not arraigned as accused such Court before moving to the next stage is required to conclude the matter under Section 319 of the Code, inasmuch as that person could be tried together with the accused already facing trial, if he is proceeded against. 10. The result is that the revision at hand deserves to be allowed and is hereby allowed. The impugned order being without jurisdiction is set aside. Consequently issuance of arrest warrant under reference is allowed quashed. Petition allowed.