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2016 DIGILAW 520 (MP)

Mangilal v. State of Madhya Pradesh

2016-06-30

J.P.GUPTA

body2016
ORDER : Shri J.P. Gupta, J. 1. The applicant-accused has filed this criminal revision under section 397 read with section 401 of the Code of Criminal Procedure being aggrieved by the judgment dated 9.10.2015 passed by First Additional Sessions Judge, Astha, District Sehore, in Sessions Trial No.192/2010 whereby application moved by a private person under section 319 of Cr.P.C. was allowed and arrest warrant is issued against the applicant. 2. The brief facts of the case in short are that in the court of 1st Additional Sessions Judge, Astha, District Sehore, Sessions Trial No. 192/2010 is pending against seven accused persons for offence under sections 147, 148, 149, 307, 323 and 325 of I.P.C. The story of the prosecution is that on 29.5.2010 at about 3.30. PM when victim Mahendra Singh was sitting in his own house, present applicant Mangilal along with other co-accused persons, against whom the aforesaid sessions trial is pending, came there and assaulted him by iron rod and lathi. It is further alleged that when brother of victim Gulab Singh came there to save brother Mahendra Singh, accused persons also assaulted him. The matter was reported to the police and the injured was taken to the hospital for medical checkup. The police station Siddhiqgunj registered the offence vide Crime No.77/2010 against the applicant and other co-accused persons; but after investigation charge-sheet was filed against co-accused persons except the applicant. Thereafter, on the basis of evidence came on record during the trial and looking to the material submitted by the prosecution along with the charge-sheet, the learned lower court below passed the impugned order on the application submitted by the co-accused under section 319 of the Cr.P.C. The court below directed that the applicant be arrayed as accused in the case and be summoned by non-bailable warrant. Against the impugned order, this revision has been filed on the ground that impugned order is contrary to law and unsustainable. 3. Learned counsel for the applicant submitted that during investigation the police did not find any evidence against the applicant. It was found that at the time of incident he was on his duty as Govt. servant and this fact had been enquired by the S.D.M. and reported to the police. On the basis of the report police exonerated him from the case and no charge-sheet was filed against him. It was found that at the time of incident he was on his duty as Govt. servant and this fact had been enquired by the S.D.M. and reported to the police. On the basis of the report police exonerated him from the case and no charge-sheet was filed against him. The applicant has been implicated subsequently due to animosity and in this regard application has been moved by the private person and not by the victim or the prosecution, which is not maintainable. Apart from it, no opportunity of hearing before disposal of this application has been given to the applicant-accused. Further, learned lower court has committed gross error of law in issuing arrest warrant instead of issuing summons. The impugned order is against the settled principles of law and passed arbitrarily, therefore, it deserves to be quashed. 4. Learned Panel lawyer appearing on behalf of the State has opposed the revision petition and supported the impugned order and prayed for its rejection. 5. Having considered the submissions of learned counsel for the parties and on perusal of the record it is found that during the trial injured witness PW1 Mahendra Singh and PW2 Gulab Singh have categorically stated that in the incident dated 29.5.2010 applicant accused also took active participation along with other co-accused persons and the same statements were given by them during the investigation and the name of the applicant is also mentioned in the FIR. In the aforesaid circumstances, in the case there is sufficient evidence or material on record to presume that the applicant accused has also committed the aforesaid offence who was not accused in the case and he could be tried together with the accused persons for the aforesaid offences. 6. So far as second contention that during investigation, inquiry was made by the S.D.M. and finding was given that at the time of incident the applicant was doing official work in the office is concerned, the same is neither on record nor submitted before the learned court and the same can be considered only at the time of defence as a piece of evidence of plea of alibi. On the basis of so called report of the S.D.M., the order passed by the court below under section 319 of Cr.P.C. cannot be assailed as the court is bound to consider only the material came before the court during the inquiry or trial as evidence, as required under section 319 of the Cr.P.C. 7. The object of the provision of section 319 of Cr.P.C. is that real culprit should not get away unpunished. It is based on the doctrine of judex damnatur cum noces absolvitur (Judge is condemned when guilty is acquitted). The learned lower court has considered the evidence and material against the accused in accordance with the directions and interpretation of the Constitution Bench of the Hon'ble Apex court in the case of Hardeep Singh v. State of Punjab, (2014)3 SCC 92 , in which it is held that power under section 319 of the Cr.P.C. can be exercised at any time after commencement of the court inquiry into an offence, i.e. which commences before the Court with filing of the charge-sheet or the complaint. Further, it is also held that word "evidence" for the purpose of exercising power under section 319 Cr.P.C. to add the accused has to be broadly understood and not literally as evidence brought during a trial. It includes oral or documentary evidence adduced before the court during trial, and apart from such evidence, any material coming before the court after taking of cognizance of offence and during inquiry by the court before commencement of trial, may not be evidence stricto sensu; but can be utilized to corroborate evidence recorded in the Court after commencement of trial and for exercising power under section 319 Cr.P.C. 8. In view of the aforesaid legal position, learned lower court has rightly came to the conclusion that there is prima facie sufficient material against the applicant to array him as accused in the case. 9. So far as next contention of learned counsel for the applicant regarding not giving opportunity of hearing before passing the impugned order is concerned, the applicant has no legal right to be given an opportunity of hearing before passing such order. As no notice of hearing is given to the accused person when he is summoned on taking cognizance on a charge-sheet or complaint, he has a right to defend himself only after his appearance in the Court. As no notice of hearing is given to the accused person when he is summoned on taking cognizance on a charge-sheet or complaint, he has a right to defend himself only after his appearance in the Court. Similarly, the applicant has no right to be heard before summons under section 319 Cr.P.C. Hence, the aforesaid contention has no legal impact in the case. 10. Learned counsel for the applicant has also contended that in this case on the application of the co-accused person impugned order under section 319 Cr.P.C. has been passed while such order cannot be passed on the application of the private person except the prosecution or the complainant or victim. Hence, the impugned order is bad in law. This contention is also not correct as the three Judge Bench of the Apex Court in the case of Y. Saraba Reddy v. Puthur Rami Reddy and another, (2007)4 SCC 773 , has explained the scope and ambit of section 319 Cr.P.C. It is observed that power under section 319 Cr.P.C. can be exercised by the courts suo motu or on an application by some-one including the accused already before it. If it is specified that any person other than the accused has committed any offence and the Court should try together with the accused. Hence, the contention raised by the applicant accused that the impugned order cannot be passed on the application of the accused is worthless. 11. Another contention of the learned counsel for the applicant is that the learned lower court has committed gross error of law in issuing arrest warrant instead of summons, therefore, the impugned order is incorrect and contrary to law. This contention has substance as the Hon'ble Apex court in the case of Vikas v. State of Rajasthan, (2014)3 SCC 321 has categorically observed that :- "Our Constitution, on the one hand, guarantees the right to life and liberty to its citizens under Article 21 and on the other hand imposes a duty and an obligation on the judges while discharging their judicial function to protect and promote the liberty of the citizens. The issuance of non-bailable warrant in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution. The issuance of non-bailable warrant in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. The conditions for the issuance non-bailable warrant are, firstly, if it is reasonable to believe that the person will not voluntarily appear in court, or secondly if the police authorities are unable to find the person to serve him with a summon and thirdly if it is considered that the person could harm someone if not placed into custody immediately. In the absence of the aforesaid reasons, the issue of non-bailable warrant a fortiori to the application under section 319 Cr.P.C. would extinguish the very purpose of existence of procedural laws which preserve and protect the right of an accused in a trial of a case. The court in all circumstances, in complaint cases at the first instance should first prefer issuing summons or bailable warrant failing which a non-bailable warrant should be issued." 12. In the present case, learned court below has not examined and considered the material before taking decision of issue of non-bailable warrant. The applicant is a Govt. servant and there is no other circumstances appear from the record in which instead of summoning, non-bailable warrant is required to be issued, hence, in this case instead of non-bailable warrant summons ought to have been issued against the applicant. Accordingly, the impugned order is liable to be modified; but due to mere aforesaid error the whole impugned order cannot be said to be contrary to law. 13. In view of the aforesaid discussions, the finding that there is sufficient evidence and material to presume that the applicant has also committed the offence for which he could be tried together with the accused person for the aforesaid offences, therefore, the applicant be summoned for prosecuting in the offence, is hereby affirmed. So far as, the direction relating to issuance of non-bailable warrant is concerned, the same is set aside and is modified with a direction that instead of issuing non-bailable warrant, summons be issued to the applicant. 14. So far as, the direction relating to issuance of non-bailable warrant is concerned, the same is set aside and is modified with a direction that instead of issuing non-bailable warrant, summons be issued to the applicant. 14. With the aforesaid direction, this revision petition stands disposed of.