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Madhya Pradesh High Court · body

2009 DIGILAW 379 (MP)

Abdul Rauf v. State of M. P.

2009-03-24

N.K.MODY

body2009
ORDER 1. Being aggrieved by the order dated 16.6.2005 passed by Judicial Magistrate First Class, Badnagar, District Ujjain in Criminal Case No.190/1996 whereby the application filed by respondent No.2 - Jasbeersingh under section 319 of the Code of Criminal Procedure ("Code" hereafter) for impleading the petitioner as an accused was allowed, the present petition under section 482 of the Code has been filed. 2. Short facts of the case are that respondents No. 2 to 4 were prosecuted by the respondent No. 1 for an offence punishable under section 34 of the M.P. Excise Act wherein the allegation against the respondents No.2 to 4 was that respondents No.2 to 4 were transporting the liquor in a Metador bearing Registration No. MP 09/K-3941.Respondents No.2 to 4 were charge-sheeted by the respondent No.1 for an offence punishable under section 34 of the M.P. Excise Act. In the charge-sheet it was alleged that the liquor was being transported illegally from the distillery and was not being carried through the fixed route as per permit. 3. During the course of the trial, an application was filed by the respondent No. 2-Jasbeersingh under section 319 of the Code for impleading the petitioner as co-accused because the petitioner was in-charge and was posted at the aforesaid distillery on deputation and has issued the permit and the liquor pouches was being carried on the basis of permit. The application was contested. The application was allowed against which the present petition has been filed. 4. Learned Senior Counsel for the petitioner submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be quashed. It is submitted that the alleged offence is of the year 1996 while the application for impleading the petitioner as co-accused was filed some-where in the year 2005 i.e. after lapse of 9 years. The second contention of the learned Senior Counsel for the petitioner is that the petitioner was the listed witness of the prosecution. It is submitted that upon the request of an accused, a witness of the case of the prosecution cannot be impleaded as co-accused. The second contention of the learned Senior Counsel for the petitioner is that the petitioner was the listed witness of the prosecution. It is submitted that upon the request of an accused, a witness of the case of the prosecution cannot be impleaded as co-accused. For this contention reliance is placed on a decision of this Court in the matter of Kamla Bai (Smt.) v. State of M.P., reported in 1998 (II) MPWN 85 , wherein a material witness was called as an accused, this Court has held that it amounts to misuse of process of the Court. 5. Learned Senior Counsel for the petitioner also submits that for allowing an application under section 319 of the Code it is not enough that the person for whom the prayer is made to be impleaded as accused may be involved in the offence. It is submitted that the Court has to come to a definite opinion that the person is involved in the offence. For this contention reliance is placed on a decision of the apex Court in the matter of Michael Machado and another v. Central Bureau of Investigation and another, reported in AIR 2000 SC 1127 , wherein it is held: "The Court must have reasonable satisfaction from the evidence already collected regarding two aspects while invoking power under section 319 to proceed against other persons appearing to be guilty of offence. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred 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. It must be remembered that there is no compelling duty on the Court to proceed against other person. It must be remembered that there is no compelling duty on the Court to proceed against other person. The Court while deciding whether to invoke the power under section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action." 6. It is submitted that in the facts and circumstances of the case the petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set-aside. 7. Shri C.R. Karnik, learned Deputy Government Advocate for the respondent No. l/State submits that the learned Court was of the view that the petitioner is also involved in the offence, therefore, the learned Court below has allowed the application and no illegality has been committed in allowing the application. It is submitted that the petition filed by the petitioner be set-aside. 8. Sub-section (1) of section 319 of the Code of Criminal Procedure 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." 9. From perusal of the record it appears that the alleged offence is dated 11.6.1996 while the impugned order to impleade the petitioner as accused is dated 16.6.2005 i.e. after 9 years. From perusal of the record it appears that the alleged offence is dated 11.6.1996 while the impugned order to impleade the petitioner as accused is dated 16.6.2005 i.e. after 9 years. From perusal of the impugned order it appears that the Court has come to the conclusion that the roll of the petitioner appears to be doubtful, which is not enough for impleading a person as accused who is none else but the witness of the prosecution. 10. In the facts and circumstances of the case petition filed by the petitioner is allowed and the impugned order passed by the learned Court below is set aside with a direction to dispose of the case pending before it at the earliest within a period of six months. 11. With the aforesaid observations, petition stands disposed of.