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Madhya Pradesh High Court · body

2010 DIGILAW 208 (MP)

R. K. Vishwakarma v. State of M. P.

2010-02-18

J.K.MAHESHWARI

body2010
ORDER (Oral). 1. This order shall govern disposal of Miscellaneous Criminal Case Nos.7031109, 7032/09, 7033/09, 7034/09, 7035/09, 7036/09, 7037/09 and 7038/09. All these petitions have been filed under section 482 of the CrPC for quashment of the initiation of proceedings of Special Sessions Judge, Dhar in S.T. No.148/2009 in furtherance to the order dated 25.9.2009 and to set aside the same, whereby the application filed by the accused/objector Insaf Khan under section 319 of the CrPC has been allowed, joining the applicants as accused, and commencement of the trial against them. 2. In brevity the description of the incident is that, one Mi. K.K. Sharma, District Marketing Officer of Madhya Pradesh Rajya Sahkari Vipdan Sangh Maryadit, District Dhar has lodged a written report to police Kotwali Dhar, stating that Insaf Khan, in-charge of go down has committed irregularities in various documents, maintaining the account of stock of sale of goods deposited in the go down and transfer in the financial year 2006-07. After investigation and on seizing the document from his custody the offence under sections 408, 409, 467 and 468 has been registered against him. It was also found that Insaf Khan, Go down Keeper has made false entries of stock and sale, however, misappropriated the Government funds of about Rs.21 ,00,000/-; thus challis was filed against him at Crime No.857/07 by the Police Station Kotwali Dhar. 3. While hearing the bail petition (M.Cr.C.No.226512009) of accused Insaf Khan on 8.5.2009 and on going through the report of Ritu Singh Kalesh, Senior Inspector-cum-Auditor of Madhya Pradesh Rajya Sahkari Vipdan Sangh Maryadit, but not having independent investigation on the said report prima facie it was observed by this Court that in misappropriation of money connivance of the higher officers may also be possible, in view of the circulars of the department dated 5.5.2005 and 20.5.2005, because it was desirable to the Go down Superintendent, District Marketing Officer and Divisional Manager to inspect the go down periodically. But, no inspection has been done by them, therefore, misappropriation of money, false stock entries and sale might have committed by the go down keeper by their connivance thus their individual act needs investigation. In this context the direction was issued to the Superintendent of Police Dhar to hold a fresh investigation and if the remaining officers were also found indulged, the action may be taken, otherwise a report be submitted to the Bench Registry. In this context the direction was issued to the Superintendent of Police Dhar to hold a fresh investigation and if the remaining officers were also found indulged, the action may be taken, otherwise a report be submitted to the Bench Registry. In furtherance to the order of this Court re-investigation was performed by the Inspector Mr. M.K Dudey and a report was submitted to the Registry, which was placed for perusal, whereupon further investigation by the officer of the higher rank was directed. The subsequent investigation has been performed by the Additional Superintendent of Police, Pithampur, and submitted its report on 13.12.2009. As per the said report, period of posting of the said officers in various capacities i.e. Go down In-charge, District Manager, District Marketing Officer, Go down Superintendent has been specified and found very short. It has further been said that non-inspection of the go downs by the higher officers, may amounting to not to discharge their duties with due diligence, but no evidence of having any intention to commit the said offence or any conspiracy is available. In the meantime examination-in-chief of the witness Mr. Ritu Singh Kalesh was recorded in the Court Its said by him that along with accused Insaf Khan Go down Keeper Mr. Atish Dubey, Go down Superintendents namely Mr. Devendra Shrivastava, Mr. G.N. Behrani, the District Marketing Officers namely Mr.. B.S. Khedekar, Mr. Mahesh Trivedi, Mr. R.K Vishwakarma, Mr. KD. Neema and the Divisional Manager Mr. D.P. Tiwari are jointly responsible. The trial Court relying upon such statement allowed the application under section 319 of CrPC filed by Insaf Khan, accused, and directed to summon applicants after joining them as accused in the trial. 4. Shri T.C. Jain, learned counsel appearing on behalf of the applicants has made three fold submissions; firstly, the statement of prosecution witness Mr. Ritu Singh Kalesh is not yet complete and only the examination-in-chief has been recorded, however, without cross-examination, and relying upon such statement cognizance cannot be taken, exercising the powers under section 319 of the CrPC. In support there to reliance has been placed on a judgment of the apex Court in the case of Mohd. Shafi v. Mohd. Rafiq and another [(2007)4 SCR 1023]; referring various paragraphs of the said judgment, it is urged 'that the examination-in-chief of witness cannot form the basis to take cognizance against the applicants. In support there to reliance has been placed on a judgment of the apex Court in the case of Mohd. Shafi v. Mohd. Rafiq and another [(2007)4 SCR 1023]; referring various paragraphs of the said judgment, it is urged 'that the examination-in-chief of witness cannot form the basis to take cognizance against the applicants. Thus, the order impugned passed by the trial Court, is contrary to the principles of law as laid down in the said judgment. Secondly, it is , contended that while taking cognizance under section 319 of CrPC the Court must see some additional material, if any, brought on record, which was not in a prosecution case, and sufficient to constitute of offence against the accused persons, otherwise the applicants cannot be made accused invoking such powers. The reliance has been placed on a judgment of the apex Court in the case of Lalsuraj @ Suraj Singh and another v. State of Jharkhand [(2009) 1 SCC (Cri.) 844]. Thirdly, the report of the Senior Cooperative Inspector, Mr. Ritu Singh Kalesh and his examination-in-chief recorded in Court may be an opinion on the issue, unless the prosecution has collected the evidence of commission of offence by accused hawing mens ria or conspiracy otherwise the cognizance against the applicants call not be directed. At last it is urged that the opinion of the Senior Cooperative Inspector and his statement if it is accepted as it is, even then ingredients of having any conspiracy by meeting of mind of fraudulent or dishonest intention to establish the ingredients of sections 408,409,467 and 468, is not on record; in support to the said submission, reliance has been placed on judgment reported in L. Chandraiah v. State of Andhra Pradesh and another [ AIR 2004 SC 252 ]. In view of the said submission prayer is made to set aside the order impugned of the trial Court and to reject the application filed by Insaf Khan under section 319 of CrPC. 5. On the other hand, Shri L.L. Sharma, learned Deputy Government Advocate appearing on behalf of the respondent-State submits that on receiving the written complaint of the District Marketing Officer the investigation has been done, and some documents have also been seized from the house of accused Insaf Khan and the report of Senior Cooperative Inspector Mr. Ritu Singh Kalesh has also been taken on record. Ritu Singh Kalesh has also been taken on record. After due consideration it was found that the offence under sections 408, 209,467 and 468 of IPC is made out only against Insaf Khan, therefore, the challan has been filed against him. It is further contended by Shri Sharma that in furtherance to the order of this Court further investigation has been performed twice; once by Mr. M.K. Dubey and later by the Additional S.P., Peethampur and found that the applicants might not have discharged their duties with due diligence in terms of circulars dated 5.5.2005 and 20.5.2005; but in absence of any evidence of their involvement to prove their dishonest intention, fraudulent action and of having conspiracy with the accused the applicants cannot be joined as accused in a criminal case, however, even after re-investigation they have not been made accused. It is also contended by Shri Sharma that in furtherance to the order impugned applicants have now been made accused, but in view of the interim order of this Court no further action has yet been taken, however, the direction, if any, is issued in this case shall be abided by them. 6. Shri Rishi Raj Trivedi, counsel appearil'1g on behalf of Insaf Khan has vehemently opposed the prayer as made in the petitions and strenuously submitted that the investigation as done by the police authorities is not independent and in conformity to the spirit of the provisions of law. It is further contended by him that the omission on the part of officers, in discharge of duties if found, then it would come within the purview of doing or non-doing of the act, however, such omission shall be sufficient to take cognizance against them. In this context reference of section 32 of IPC has been made, relying upon a judgment of this Court in the case of Vimal Kumar v. State of M.P. [ 2005(4) MPLJ 420 ], however, it is urged that an illegal omission would constitute an act and in the present case the duties which are required to be discharged by the Superintendent of the Go-down, District Marketing Officer, Divisional Manager if not discharged shall amounting to an illegal omission, as they have not inspected the premises, though they are duty bound to inspect it. Therefore, such omission constitute an offence, hence the order passed by the Sessions Judge to take a cognizance u/s 319 of CrPC against applicants is just and proper and do not warrant any interference. It is further contended by him that the judgment of Mohd. Shaft (supra), has not been referred to the Larger Bench before the Supreme Court in a case of Hardeep Singh v. State of Punjab [2008 AIR SCW 7585], to answer two questions. However it is submitted that until the reference has been answered by the Larger. Bench, however, hearing of this case may be deferred. It is also contended, as per Division Bench judgment of the apex Court in the case of Harbhajan Singh and another v. State of Punjab [ 2009 CrLJ 4429 ], the Court ought to take note of the material available before it, for recording the satisfaction, while exercising jurisdiction under section 319 of CrPC. In the present case, as per the report submitted by the Cooperative Inspector Mr. Ritu Singh Kalesh, it is apparent that the applicants have not duly discharged their duties though they are bound to discharge it as per the circulars of the department, however, such an act shall fall within the definition of illegal omission and it would constitute an offence akin to the offence registered against accused Insaf Khan, therefore, the applicants are liable jointly or severally for such an act. Lastly, it is contended by him that as per the statement of Mr. Ritu Singh Kalesh, and as per his opinion, the trial COUl1 has recorded satisfaction and directed to take cognizance against applicants. Such an order do not warrant any interference in exercise of revisional jurisdiction. In view of the said submission it is prayed that all the petitions may be dismissed upholding the order impugned. 7. After having heard the rival submissions and to adjudge the viability of the order impugned, passed on an application under section 319 of the CrPC, the verbatim language of the said section is reproduced herein below: "319. Power to proceed against other persons appearing to be guilty of offence. 7. After having heard the rival submissions and to adjudge the viability of the order impugned, passed on an application under section 319 of the CrPC, the verbatim language of the said section is reproduced herein below: "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 of trial was commenced." 8. The aforesaid section is the part of Chapter 24 of the Code, which deals the general provisions as to inquiry and trial. A plain reading thereof indicates, that if in the course of inquiry or trial, it appears from the evidence, that any person who is not the accused in the said case, has committed an offence and, may be tried together with the accused, the Court may proceed against such person to the offence which appears to have been committed. Thus, it is clear that as per the material collected by the prosecution and the evidence come on record before the Court during trial the Court must record his satisfaction objectively, that the reasonable grounds to proceed against the person to be guilty of an offence is available, however, with a view t6 try him together with the accused of the case, the such person who have committed an offence may be summoned and shall be tried. As per sub-section (2) on exercise of powers under sub-section (1) if a person is not attending the Court he may be arrested or summoned depending upon the circumstances of the case. As per sub-section (3) the Court may detain the person appeared to have committed the offence for the purpose of inquiry or trial. As per sub-section (4) upon taking cognizance as per sub-section"(1) the proceedings in respect to such person shall commence afresh and the witness may be reheard, when the Court took cognizance of the offence to which inquiry or trial has commenced. In view of the said basic requirement of section 319 of CrPC appreciation of rival submissions requires adjudication. 9. In support of the first contention of applicants the judgments of Mohd. Shaft (supra), was referred, whereby the apex Court has held that satisfaction under section 319 of CrPC could be arrived at only after cross-examination of the witnesses is over, the Court observed that: "The trial Judge, as noticed by us, in terms of section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction, if he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same." 10. It is seen that in the case of Rakesh and another v. State of Haryana [ (2001)6 SCC 248 ], the apex Court has taken a different view. In the said case the father of the prosecutrix had lodged the FIR alleging commission of the offence by the appellant Rakesh and others. As per the complainant his daughter was taken by three persons due to previous enmity with the object to commit rape. The girl was found with "X". After investigation challan was filed and charge was framed only against "X". During trial on examination of some of the witnesses and as per their evidence an application under section 319 of CrPC to array the other persons as accused along with "X" was filed on behalf of the Government. The said prayer was granted and affirmed by the High Court. During trial on examination of some of the witnesses and as per their evidence an application under section 319 of CrPC to array the other persons as accused along with "X" was filed on behalf of the Government. The said prayer was granted and affirmed by the High Court. Newly added accused persons approached to the apex Court, however, the issue was raised whether the prosecution witnesses have not been cross-examined, their statements may constitute as evidence within the meaning of section 319 of CrPC. The apex Court observed that under sub-section (1) of section 319 of CrPC the word "evidence" has been used which is comprehensive. The Court held as under: "Once the Sessions Court records a statement of the witness it would be part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising Court's power under section 319, CrPC. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material, which would enable the Sessions Court to decide whether powers provide that 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." 11. The apex Court further add that: "Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term 'evidence' as used in section 319, Criminal Procedure Code would mean evidence which is tested by cross-examination. 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. 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. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the Investigating Officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime." 12. Recently the apex Court in the case of Hardeep Singh v. State of Punjab and others [2008 AIR SCW 7586], have taken note of the aforesaid two judgments of Division Bench and following two questions for consideration of the Bench of Hon'ble three Judges of the apex Court has been framed which are as under: "(1) When the power under sub-section (I) of section 319 of the Code of addition of accused can be exercised by a Court? Whether application under section 319 is not maintainable unless the crossexamination of the witness is complete? (2) What is the test and what are the guidelines of exercising power under sub-section (1) of section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?" 13. After having referred the said two questions for answer by three Judges Bench the apex Court in the case of Lala Suraj @ Suraj Singh and another v. State of Jharkhand [2009)1 SCC (Cri.) 844], has held that the powers under section 319 of the Code is a special power to meet an extra ordinary situation, which confers power of wide amplitude but it is required to be exercised very sparingly. Considering the statement ofPW6 an eyewitness to the occurrence and PW7 who is hearsay witness it is held that no satisfaction can be arrived at of there being a reasonable prospect of conviction of appellants. Thereafter, in the case of Kailash v. State of Rajasthan [(2009) 1 SCC (Cri.) 1006], the Court has reiterated the same view. Considering the statement ofPW6 an eyewitness to the occurrence and PW7 who is hearsay witness it is held that no satisfaction can be arrived at of there being a reasonable prospect of conviction of appellants. Thereafter, in the case of Kailash v. State of Rajasthan [(2009) 1 SCC (Cri.) 1006], the Court has reiterated the same view. In view of the forgoing enunciation of law and the questions perused for answer, in the case of Hardeep Singh (supra), it would be inappropriate to answer the first rival contention of the applicants. Thus, contention regarding maintainability of the application under section 319 of CrPC prior to cross-examination of the witnesses and the powers may be exercised only when the Court is satisfied that the accused summoned in all likelihood would be convicted is not required to be answered here. 14. The other contention as advanced of availability of additional material which was not in prosecution case, the report and the statement of Mr. Ritu Singh Kalesh is merely an opinion, and also the material available does not disclose the commission of offence is required to be seen, in the context the replica of learned counsel appearing for the objector co-accused Insaf Khan. As per objector if doing or non-doing is amounting to an illegal omission in discharge of the duties by the higher officers whether in the facts of the present case it would constitute the commission of the offence by them or not. 15. As per the basic requirement for invoking the said power it must appear to the Court from evidence collected during inquiry or trial that some other person not arraigned as accused in the case has committed an offence to which those persons could be tried together with the accused already arraigned. In the said basic requirement the material available in the prosecution case or come on record during trial after recording the statement of Mr. Ritu Singh Kalesh, the reasonable satisfaction of Court to summon them for their doing or non-doing to exercise the power of section 319 of CrPC is required to be seen. It is further required to be seen that trial Court while passing the impugned order has considered the basic requirement while summoning the present applicants on joining them accused or not. 16. In the present case the FIR was lodged against the objector Mohd. It is further required to be seen that trial Court while passing the impugned order has considered the basic requirement while summoning the present applicants on joining them accused or not. 16. In the present case the FIR was lodged against the objector Mohd. Insaf Khan by the District Marketing Officer on the basis of a report of the Auditor Mr. Ritu Singh Kalesh The report of Auditor indicates that in view of the departmental circulars dated 5.5.2005 and 20.5.2005 the present applicants were posted as Go-down Superintendent, District Marketing Officer and Divisional Manager, they were duty bound for periodical inspection, vicariously liable of commission of the offence. In his statement under section 161 of CrPC he has said the same version, while in his examination-in-chief recorded in Court during trial on 24.9.2009, it is said by him that misappropriation, fraudulent accounting of stock and sale has been done by the accused Insaf Khan, but because the applicants have not discharged their duties with due diligence to inspect the go-down, therefore, they are also jointly liable for commission of the offence. On recording such statement application has been filed by the objector (accused Insaf Khan) before the trial Court under section 319 of CrPC, which has been allowed by the trial Court. On perusal of the entire investigation no evidence of conspiracy against applicants with the co-accused Insaf Khan, is on record. The investigation conducted by the prosecution agency also does not reflect any misappropriation committed by the present applicants or made fraudulent entry of stock and sale. Under the orders of this Court re-investigation was performed twice by two officers up to the rank of Additional Superintendent of Police and the reports have been submitted. In those reports also individual act· of commission of offence by applicants is not available and no evidence of conspiracy with Insaf Khan has come on record. It has further been observed by the Investigating Officer that the higher officers i.e. applicants may be negligent in discharging their official duties, of not doing investigation within time, but as per the evidence no offence has been committed by them, therefore, refused to join them as accused. In the case of Maksud Saiyed v. State of Gujarat and others [ (2008)5 SCC 668 ], the issue regarding vicarious liability of the Directors for the charges leveled against the Company has been considered. In the case of Maksud Saiyed v. State of Gujarat and others [ (2008)5 SCC 668 ], the issue regarding vicarious liability of the Directors for the charges leveled against the Company has been considered. The apex Court held that the Panel Code does not contain any provision for attaching vicarious liability. The Court has to examine that as per the allegations vicarious criminal liability of the other accused persons may be fastened in commission of the offence against the Directors of the Company. Accepting the said analogy of vicarious liability and after going through the evidence available on record at this stage it cannot be concluded that by doing or non-doing of the higher officials i.e. applicants they may be held responsible for their illegal omission making them accused in a case. 17. On consideration of the examination-in-chief of Mr. Ritu Singh Kalesh and his report and the material collected by the prosecution agency, and the subsequent report, at this stage no material is available showing any involvement of applicants in commission of the offence. The trial Court has merely allowed the application because in the statement of Mr. Ritu Singh Kalesh it is said the present applicants are jointly responsible. On issuing directions of re-investigation no act and omission of the individual applicants have been brought on record. While passing the order impugned the trial Court has not recorded any satisfaction relying upon the material, on record showing commission of offence by the present applicants, who are required to be tried along with accused Insaf Khan. In my opinion also at this stage, as per bald statement of Mr. Ritu Singh Kalesh and the report sufficient material is not available to implicate the present applicants as accused, and making them vicariously responsible to the said offence. 18. Accordingly, all these petitions are hereby allowed and the order impugned passed by the Sessions Judge is hereby set aside, however, it is observed that if some cogent evidence has come at subsequent stage to invoke the power under section 319 of the Code the Court shall not be abstained from the said recourse. It is hereby further observed that the department is at liberty to take the departmental action against the applicants as per the report of police officers available in the case diary. It is hereby further observed that the department is at liberty to take the departmental action against the applicants as per the report of police officers available in the case diary. It is also required to observe here that the observations, if any, against the objector Insaf Khan only relates to the issue of taking cognizance against the present applicants and not on merit, however, the case of Insaf Khan be decided by the trial Court without influencing from those observations. In the facts and circumstances of the case parties to bear their own costs.