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2012 DIGILAW 770 (BOM)

Subhash Vasantlal Tandon v. State of Maharashtra

2012-04-11

A.P.BHANGALE

body2012
JUDGMENT Heard learned counsel for the parties. 2. By the application under Section 482 of the Code of Criminal Procedure, the applicant has prayed for quashing and setting aside the order 22nd July, 2011 passed by learned Additional Sessions judge - 15, Nagpur in Criminal Revision Application No. 393 of 2011 so also order dated 25/5/2011, passed by learned judicial Magistrate First Class, Nagpur in Regular Criminal Case No. 235 of 2008. 3. The facts stated are as under: On or about 21/12/1989, one Chindhuji Akatwar lodged F.I.R. against applicants and one Vasantlal Tondon giving rise to Criminal Case No.192 of 1990, under Section 324 of the Indian Penal Code. The charge-sheet in the case was filed on 30/04/1990. The trial Court had framed charge on 19/1/1996, against the accused No.1 During the course of trial, on 17/09/1996, prosecution moved an application below Exh.15 to summon additional accused Nos.2 and 3 namely the applicants herein, on the ground that their names appeared in the F.I.R. and they were required to be added in the proceedings. Accordingly, accused Nos. 2 and 3 were added on 17/09/1996. Learned trial Magistrate, on 05/09/1999, passed an order for de novo trial at the stage of recording statement under Section 313 of the Code of Criminal Procedure. The applicants had assailed the order passed by learned trial Magistrate by filing Criminal Revision No. 526 of 1999 before learned 4th Additional Sessions judge, Nagpur, who was pleased to set aside the order dated 05/06/1999. The learned Additional Sessions judge, Nagpur set aside the said order holding it to be barred by limitation and remanded the matter back to the Magistrate to consider the point of limitation and also to consider that there was any sufficient material to condone the delay under Section 473 of the Code of Criminal Procedure. The accused No.2 namely; Vasantlal expired on 28/3/2007. Prosecution, on 30/03/2011, moved an application under Section 473 of the Code of Criminal Procedure for condonation of delay. Learned judicial Magistrate First Class, Mouda, on 25/05/2011, proceeded to allow the said application by observing that the names of accused are not added in charge sheet due to mistake on the part of Investigating Officer and the accused cannot therefore take advantage of that and further in spite of order passed by Sessions judge, the accused have participated in trial. On 09/06/2011, applicants preferred Criminal Revision No. 393 of 2011 before Sessions Court, Nagpur contending that there was no sufficient grounds for condoning the delay and also contended that punishment for offence under Section 324 of IPC is three years and limitation for taking cognizance is also upto three years. Learned Sessions judge rejected the said application on 22/07/2011, on the ground that under Section 319(4)(b) of the Code of Criminal Procedure, there is no need to file an application for condonation of delay. 4. Learned Advocate for the applicant submitted that the proceedings remained pending for a long time and there was no evidence to proceed against the applicants herein. The powers under Section 319 of the Code Criminal Procedure are to be exercised sparingly, cautiously and in rarest of rare case. He, therefore, submitted that the impugned order is not only illegal, improper but also unjust and arbitrary on the ground that the order impleading the applicants as accused is time barred in view of Section 468 of the Code of Criminal Procedure. It is not disputed that the trial is still pending. 5. Learned APP supported the impugned judgment and Order in the Criminal Revision Application No.393 of 2011, in which, reference was made to Section 319 of the Code of Criminal Procedure in order to observe that the Court may proceed against any person for the offence which he appears to have committed and case may proceed as if such person had been an accused person when Court took cognizance of the offence. In this case, the cognizance of the offence was taken long back by the trial Magistrate and in view of the Section 319 of the Code of Criminal Procedure, it was within discretion of the learned trial Magistrate to exercise powers under Section 311 of the Code of Criminal Procedure. 6. Learned Advocate for the applicant, in support of his submissions, placed reliance upon the ruling in the case of Sarabjit Singh @ Anr. V. State of Punjab & Anr. Reported in AIR 2009 SC 2782 : [2009 ALL MR (Cri) 3148 (S.C.)], and submitted that power under Section 319 of the Code of Criminal Procedure is extraordinary and required to be used very sparingly for sufficient and cogent reasons. V. State of Punjab & Anr. Reported in AIR 2009 SC 2782 : [2009 ALL MR (Cri) 3148 (S.C.)], and submitted that power under Section 319 of the Code of Criminal Procedure is extraordinary and required to be used very sparingly for sufficient and cogent reasons. It appears in the ruling Sarabjit, [2009 ALL MR (Cri) 3148 (S.C.)] (cited supra), the Apex Court considered the provisions under Section 319 of the Code of Criminal Procedure as also relevant provisions and observed that an order under Section 319 of the Code of Criminal Procedure to summon additional accused requires sufficient and cogent reasons as it is an extraordinary power to summon any person as an additional accused in the pending criminal case. Reliance is also placed on the rulings in the cases of Lal Suraj Alias Suraj singh and another Versus State of Jharkhand reported in (2009) 2 SCC 696 : [2009 ALL MR (Cri) 3163 (S.C.)] and Rajindra singh V. State of U.P. & Anr., reported in AIR 2007 SC 2786 : [2007 ALL MR (Cri) 2655 (S.C.)]. It appears from the above referred rulings that it has left to judicial discretion of the trial Court to decide as to whether to proceed or not against accused persons other than the accused before it in view of Section 319 of the Code of Criminal Procedure. Of course, it is necessary that it must appear from the evidence rendered, in the course of inquiry or trial that any person other than the accused before it has also committed an offence for which he should be tried together with the accused although such person was no arraigned before it in the charge-sheet. It is true that mere statement under Section 161 of the Code of Criminal Procedure cannot be considered as substantive piece of evidence. In view of the proviso to sub-section (1) of Section 162 of the Code of Criminal Procedure, the statement can be used for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. However, it must be borne in mind that object of Section 319 of the Code of Criminal Procedure is to ensure that the whole case against all known suspects must be proceeded expeditiously. However, it must be borne in mind that object of Section 319 of the Code of Criminal Procedure is to ensure that the whole case against all known suspects must be proceeded expeditiously. The term "evidence is required to be considered with reference to interpretation clause in Section 3 of the Indian Evidence Act where it is stated as follows: (1) All statement which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; Such statements are called oral evidence; (2) [all documents including electronic records produced for the inspection of the Court] Such documents are called documentary evidence. Thus evidence before the trial Court would include documents produced before it as also examination-in-chief, upon which the Court may, from prima-facie view, to summon additional accused. The trial Court has jurisdiction to take cognizance of offence which would also include summoning of persons whose complicity can, prima facie, cover from the material placed on record before trial Court. Thus, if any offender is left over by the Investigating Agency either deliberately or by mistake, the trial judge may exercise power under Section 319 of the Code of Criminal Procedure to ensure that all offenders are brought to book. Although, it is an extraordinary power and to be used sparingly, it is a power to proceed against all the persons appearing to be guilty of offence by taking cognizance, even if such persons were not included in the chargesheet filed in the Court or were not arrested as accused during the course of inquiry. The trial Court can implead such persons as accused depending upon its conclusion. Thus, the discretion to proceed against any person not being made an accused in the charge-sheet must be left to the judicial discretion to the trial judge. No fault can be found with the reasons stated by learned Sessions judge in the impugned judgment and Order. In view of provision under Section 473 of the Code of Criminal Procedure, the Court is entitled to take cognizance of offence even after the expiry of period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do, in the interest of justice. The trial is pending since long and it is yet to be concluded. The trial is pending since long and it is yet to be concluded. Nothing can prevent the trial judge from passing an appropriate, essential order so as to do complete justice in the case including proceedings against the offenders and, hence, there is no acceptable ground made out to interfere with the judgment and Order passed by learned Session Judge-15, Nagpur dated 22/7/2011. For the reasons stated therein, no interference is required under exercise of inherent powers under Section 482 of the Code of Criminal Procedure. The application is dismissed. Application dismissed.