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2013 DIGILAW 2277 (BOM)

Damodar Sakharam Naik v. State of Goa

2013-10-28

R.M.SAVANT

body2013
Judgment : Rule. With the consent of the learned Counsel for the petitioner and the learned Additional Public Prosecutor made returnable forthwith and heard. 2. The short question is whether case under Section 319 of the Criminal Procedure Code is made out to proceed against the petitioner herein in Criminal Case No.39/07/2013/A which has arisen out of the charge sheet no.4/2013 registered against the brother of the petitioner one Uday Naik under Sections 324, 325 of the Indian Penal Code. 3. It appears that in the course of the deposition of the complainant in the said criminal case, he has made a statement that the accused along with his brother i.e. the petitioner herein had assaulted him by giving him kicks after he had fallen down. It is on the basis of the said statement that the learned JMFC, Vasco da Gama has decided to proceed against him in the said criminal case, pursuant to which summons have been issued against the petitioner giving rise to the filing of the above petition questioning the issuance of summons. 4. It is the case of the petitioner as urged by Shri Pavithran A.V., the learned Counsel appearing for the petitioner that except the said statement there is no other material on record. The learned Counsel drew my attention to the statement of the daughter of the complainant one Miss Rashika Vinayak Shetkar, in which statement also there is no reference to the petitioner. 5. In so far as the powers under Section 319 of the Criminal Procedure Code are concerned, the Apex Court in the judgment reported in 2009 (16) SCC 46 in the matter of Sarabjit Singh and Anr. Vs. State of Punjab & Anr. has held that the said power is an extra ordinary power which in terms of the decision of the Apex Court reported in 1983 (1) SCC 1 in the matter of MCD V/s. Ram Kishan Rohtagi, is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken. The Apex Court has further observed that the provision of Section 319 of the Code on a plain reading provides that such an extra ordinary case has to be made out and must appear to the Court. The Apex Court has further observed that the provision of Section 319 of the Code on a plain reading provides that such an extra ordinary case has to be made out and must appear to the Court. The Apex Court thereafter in paragraph 21 has observed that an order under Section 319 should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s) and that sufficient cogent reasons are required to be assigned by the Court so as to satisfy ingredients of the provisions. Paragraph 21 of the said judgment is material and is reproduced herein under for ready reference: "21. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned." 6. In the instant case, it appears that the Trial Court has chosen to proceed against the petitioner only on the basis of the statement that was made by the complainant in his deposition. The Trial Court considering the dicta of the Supreme Court was required to consider the said aspect on the touch stone of the test laid down by the Supreme Court especially enunciated in paragraph 21 of the judgment (supra) as extracted herein above. In my view, therefore, the impugned order dated 4/07/2013 is required to be quashed and set aside and the matter is required to be relegated back to the Trial Court for a denovo consideration of the aspect as to whether to add the petitioner as the co-accused in exercise of the powers under Section 319 of the Code. The Trial Court before proceeding in the matter to issue notice to the petitioner and fix the matter as per its convenience. The above petition is accordingly allowed to the extent as mentioned above. Rule is accordingly made absolute.