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2014 DIGILAW 324 (MAD)

P. Raju v. State

2014-02-11

S.NAGAMUTHU

body2014
JUDGMENT 1. An order made by the Additional Chief Metropolitan Magistrate, Egmore, Chennai – 600 008 in C.C. No. 6481 of 2012, purportedly under Section 319 of the Code of Criminal Procedure is under challenge by way of revision in this petition. 2. The respondent/CBI filed final report against three accused before the lower court alleging that they had committed offences under Sections 120 (B) read with 420 of IPC read with 420, read with 511 of Indian Penal Code and under Section 7 (1) (a) (ii) of Essential Commodities Act, 1955 read with Clause 25 (1) & (2) of The Fertilizer (Control) Order, 1985. The lower court took cognizance of the offences on the said final report. It appears that before the lower Court, the third accused filed Crl.M.P. No. 275 of 2013 for discharge, but the trial court, suo motu passed an under Section 319 of Cr.P.C. arraying the petitioners herein as additional accused A-8 and A-9. The petitioners are aggrieved by the same and that is how they are before this Court. 3. I have heard the learned counsel for the petitioner, the learned Special Public Prosecutor appearing for the respondent/CBI and also perused the records carefully. 4. At the outset, before embarking upon the factual aspects of the matter, let us have a look in to the law on the subject, as envisaged under Section 319 of Cr.P.C. which reads as follows:- "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. (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 the witnesses re-heard; (b) subject to the provisions of clause (1), the case may proceed as if such person had been an accused person when the Court took cognisance of the offence upon which the inquiry or trial was commenced.” 5. A cursory reading of the above provisions would make it abundantly clear that an order under Section 319 of Cr.P.C. can be passed by the trial court only during trial, that too on the evidence already let in by the prosecution. The trial court cannot array an accused as additional accused except on the evidence so adduced already. 6.In this regard, we may usefully refer to the recent judgement of the Hon’ble Supreme Court in Hardeep Singh v. State of Punjab (2014(1)SCALE 241) wherein, the scope of Section 319 of the Code of Criminal Procedure has been dealt with in detail. The primary question before the Hon’ble Supreme Court was as to whether for the purpose of Section 319 Cr.P.C., the term “evidence” should be thoroughly construed so as to hold that it means only the evidence recorded during trial. The Hon’ble Supreme Court dispelled the above contention and held that the term “evidence” as referred to in Section 319 Cr.P.C. requires broader interpretation so as to say that any evidence which is brought on record after the stage of taking cognizance such as the evidence recorded under Sections 200 to 202 Cr.P.C., will fall within the meaning of evidence. The Hon’ble Supreme Court has further clarified that such evidence need not be in complete form so as to say that it would be considered as evidence only after cross examination is over. The Court has further held that as soon as evidence in chief examination of witness is over, without waiting for cross examination, the Court can resort to Section 319 Cr.P.C. At any rate, the Hon’ble Supreme Court has once for all set at rest the controversy by holding that Section 319 Cr.P.C., could be invoked only on such evidence brought on record. 7. 7. With the above legal position, let us have a look into the facts of the case. In the order dated 01.10.2013, the trial court has stated as follows:- “During the course of inquiry in Crl.M.P.No.275 of 2013, submitted by A.3 and at the time of arguments of learned Assistant Special Prosecutor and the learned counsel for A.3 this court observed all points raised during the time of arguments and on careful reading of the F.I.R., the charge sheet, the 161(1)(3) statements of witnesses, 164 statements of some witnesses and on perusal of the entire records of this case this Court under Section 319 of the Code of Criminal Procedure, 1973, suo moto passed the following” 8. Patently, the above order passed by the trial court is erroneous. The impugned order under Section 319 of Cr.P.C. has been passed not on the evidence available on record, but on the other materials, which were filed along with the final report by the respondent/CBI. This is against the mandate contained in Section 319 of Cr.P.C. Further, the trial court had not even framed charges. In such view of the matter, the impugned order passed by the trial court cannot be allowed to sustain. 9. In the result, the Criminal Revision Case is allowed and the impugned order is set aside. It is made clear that after the commencement of the trial, if the trial court finds from the evidence that any additional accused has to be added, it is always open for the trial court to do so.