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2017 DIGILAW 1385 (HP)

Rattan Manjari Negi v. State Of Himachal Pradesh

2017-12-14

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. - By way of this revision petition, petitioner Rattan Manjari Negi has assailed order dated 14.06.2017 passed by learned Special Judge, Rampur in case No. 5K/7 of 2013, in a case registered under Sections 420, 467, 468, 471, 120-B of Indian Penal Code and Section 13(2) of Prevention of Corruption Act at Police Station, State Vigilance and Anti Corruption Bureau Reckong Peo dated 16.10.2017 vide FIR No. 1/2007 against Rajeev Sood (BDO Pooh), Kashmir Singh Rawat (Junior Engineer O/O BDO, Pooh), Nokhu Ram, Raj Chander Negi (Contractors), Ashwani Kumar (Assistant Engineer I & PH), Vijay Kumar (Secretary Gram Panchayat Murang) and Gian Singh (Technical Assistant O/O BDO Pooh), vide which, learned Court below has arrayed the petitioner also as a co-accused and a formal charge has been put to the petitioner alongwith other co-accused under Sections 120-B, 420, 467, 468, 471 of Indian Penal Code and Section 13(2) of Prevention of Corruption Act, 1988. 2. The case of the petitioner is that the order so passed by learned Court below is perverse and not sustainable in law as learned Special Judge has erred in not appreciating that in exercise of its jurisdiction so conferred upon it under Section 319 Cr.P.C., learned Court below could not have arrayed the petitioner as co-accused at the stage of passing the impugned order, especially when he was not named as co-accused in the course of investigation nor at the time when the challan was filed in the Court and thus, as no further material was with the Court as on 14.06.2017, learned Court below has erred in impleading the petitioner as co-accused. 3. I have heard learned counsel for the parties and have also gone through the impugned order. 4. Before proceeding further, it is relevant to take note of Section 319 Cr.P.C. This provision confers upon the Court power to proceed against other persons appearing to be guilty of offence where, in the course of any inquiry into, or trial of, an offence, appears to have been committed by a person not being the accused. For ready reference, Section 319 Cr.P.C. is being reproduced herein below:- "319. For ready reference, Section 319 Cr.P.C. is being 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 or trial was commenced." 5. A 5 Judge Bench of the Hon''ble Supreme Court in Hardeep Singh vs. State of Punjab and Others, (2014) 3 Supreme Court Cases 92, while discussing the scope of said Section, formulated the following questions:- "6. On the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this Bench: 6.1. (i) What is the stage at which power under Section 319 CrPC can be exercised? 6.2. (ii) Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-inchief of the witness concerned? 6.3. (iii) Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? 6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? 6.3. (iii) Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? 6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted? 6.5. (v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged''" 6. While answering question No. (iii), which is relevant for the purpose of adjudication of the present case, after referring to the earlier judgments of Hon''ble Supreme Court it held as under:- "76. Ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached. A bare perusal of Section 227 CrPC would show that the legislature has used the terms ''record of the case'' and the ''documents submitted therewith''. It is in this context that the word ''evidence'' as appearing in Section 319 CrPC has to be read and understood. The material collected at the stage of investigation can at best be used for a limited purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict the statements of the witnesses recorded before the court. Therefore, for the exercise of power under Section 319 CrPC, the use of word ''evidence'' means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319 CrPC. 77. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial. 78. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial. 78. It is, therefore, clear that the word ''evidence'' in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether power under Section 319 CrPC is to be exercised and not on the basis of material collected during investigation. 79. The inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. It is the duty of the court to do so and therefore the power to perform this duty is provided under the CrPC. 80. The unveiling of facts other than the material collected during investigation before the magistrate or court before trial actually commences is part of the process of inquiry. Such facts when recorded during trial are evidence. It is evidence only on the basis whereof trial can be held, but can the same definition be extended for any other material collected during inquiry by the Magistrate or court for the purpose of Section 319 CrPC" 81. An inquiry can be conducted by the Magistrate or court at any stage during the proceedings before the court. This power is preserved with the court and has to be read and understood accordingly. The outcome of any such exercise should not be an impediment in the speedy trial of the case. Though the facts so received by the Magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 CrPC it is an information of complicity. Such material therefore, can be used even though not an evidence in stricto sensu, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved. 82. In the context of Section 319 CrPC it is an information of complicity. Such material therefore, can be used even though not an evidence in stricto sensu, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved. 82. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material along with the charge-sheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge-sheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges. 83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word ''evidence'' as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court. 84. This would harmonise such material with the word ''evidence'' as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court. 84. The word ''evidence'' therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The ''evidence'' is thus, limited to the evidence recorded during trial." 7. In the background of the law discussed above, now this Court will go into the legality of the order under challenge. 8. A perusal of the impugned order demonstrates that in Para-13 thereof, learned Special Judge has assigned reasons as to why the petitioner was ordered to be impleaded as an accused. It stands mentioned in the said para that the process of installation of the spans/rope way right from its inception till its completion and commissioning was done under the supervision of a committee constituting of members of the concerned Panchayat and B.D.O. Pooh, and its officials and after completion of the same, they were handed over to the concerned Panchayat. It further stands mentioned in the said para that the completion and operationalising/commissioning condition of Mongshong-Kharo span was certified by Pradhan Shiv Chand of Gram Panchayat, Rarang and Jagat Kirti, the then Technical Assistant and thereafter possession thereof was taken by the persons concerned under a certificate duly signed by them. It further stands mentioned in the said para that the completion and operationalising/commissioning condition of Mongshong-Kharo span was certified by Pradhan Shiv Chand of Gram Panchayat, Rarang and Jagat Kirti, the then Technical Assistant and thereafter possession thereof was taken by the persons concerned under a certificate duly signed by them. It further stands mentioned in the said para that completion and commissioning condition certificate with respect to motor span from Ribba to Kharo was certified by Rattan Manjari, the then Pradhan of Gram Panchayat, Ribba but the said persons had not been chargesheeted on the ground that they were not found party to criminal conspiracy. Thereafter, it has been observed by learned trial Court that the reasons cited for not arraying the above named persons as co-accused were beyond comprehension and prosecution could not be allowed to adopt different yardsticks while assessing the involvement of the accused and the persons who have not been arrayed as accused especially when the facts relied upon against the present accused as well as the person not chargesheeted were quite identical. Learned trial Court further held that it was the case of the prosecution that entire process of installation of the spans rights from its inception to its commissioning and transfer thereof to the concerned Panchayat was done in active corroboration with the President of the Panchayat. Learned trial Court also held that they being the local persons could be held to be well aware with the sites which had been selected by the committee for installation of the spans and, therefore, how could it be believed that Pradhan of Gram Panchayat, Ribba, could not distinguish between a gravity span and a span run by a motor. It also held that there was no technicality involved in knowing the sites of the installation of the spans and the operation thereof by gravitation or by a mechanized system. Learned trial Court further held that it was constrained to observe that the reasons for not arraying the above named persons as accused were actuated with consideration other than the object to bring the actual culprits to book. It was on these basis that learned trial Court arrayed petitioner as co-accused. 9. Learned trial Court thus has spelt out reasons as to why it has impleaded the present petitioner as an accused in the trial. 10. It was on these basis that learned trial Court arrayed petitioner as co-accused. 9. Learned trial Court thus has spelt out reasons as to why it has impleaded the present petitioner as an accused in the trial. 10. Now, the stage at which the impugned order has been passed by the Court is the stage post taking cognizance and before framing of the charge. It is but obvious that because at the time when the impugned order was passed as no charges had been framed there was no evidence before the Court which stood recorded by it after framing of charge. The decision which was taken by learned trial Court to implead the present petitioner as an accused in the trial was obviously on the basis of the material which had been placed before it by the prosecution. Therefore, the moot issue is as to whether on the basis of the material which had been placed before learned trial Court by the prosecution on the basis of which cognizance was taken of the matter by learned trial Court, could learned trial Court have had arrayed the petitioner as an accused at the time of framing of charges or not. 11. In my considered view, the answer is in the negative. I say so for the reason that 5 Judge judgment of the Hon''ble Supreme court i.e. Hardeep Singh vs. State of Punjab and Others (supra) spells out very clearly and very categorically that on the basis of what material, learned trial Court can implead a person as an accused in exercise of powers conferred upon it under Section 319 Cr.P.C. Material so envisaged in the said judgment of the Hon''ble Supreme Court is (a) material gathered by way of ''evidence'' and (b) material gathered by way of inquiry by the Court. 12. The word ''evidence'' as has been clarified by Hon''ble Supreme Court as mentioned in Section 319 Cr.P.C. means only such evidence as is made before the Court, in relation to statements, and as produced before the Court, in relation documents. Hon''ble Supreme Court has categorically said that it is only such evidence that can be taken into account by the Magistrate or the Court to decide whether the power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during the investigation. 13. Hon''ble Supreme Court has categorically said that it is only such evidence that can be taken into account by the Magistrate or the Court to decide whether the power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during the investigation. 13. Hon''ble Supreme Court has further held that the inquiry by the Court is, ''neither attributable to investigation nor the prosecution but by the Court itself for collecting information to draw back a curtain that hides something material''. Hon''ble Supreme Court has further held that unveiling of facts other than the material collected during investigation before the Magistrate or Court before trial actually commences is part of the process of inquiry. It has further been held that such facts when recorded during trial are evidence. Hon''ble Supreme Court has further held that it is, therefore, not any material that can be utilized, rather it is that material after cognizance is taken by a Court which is available to it while making an inquiry into or trying an offence, that the Court can utilize or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. 14. Thereafter, it stands concluded by Hon''ble Supreme Court that apart from evidence recorded during trial, any material that has been received by the Court after cognizance is taken and before the trial commences, can be utilized only for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. 15. Coming to the facts of the present case, herein Court did not exercise its power under Section 319 of Cr.P.C. on the basis of material which was placed before it by way of evidence, as it is understood under Section 319 of Cr.P.C. Neither there is anything on record from which it can be inferred that after taking cognizance and before the stage of trial in the course of inquiry into trying the offence, material came before the Court which led to the Court passing the order of impleading the petitioner as an accused. In other words, there was no unveiling of facts other than material collected during investigation after the Court had taken cognizance and before the stage of trial. In other words, there was no unveiling of facts other than material collected during investigation after the Court had taken cognizance and before the stage of trial. This demonstrates that the decision of learned trial court of impleading the petitioner as an accused in the trial, was entirely based on the material which was collected during the course of investigation before the Court had taken cognizance of the offence. I am afraid on the basis of appreciation of such material which the prosecution had collected during the course of investigation, learned trial Court could not have had exercised its power under Section 319 of Cr.P.C. and ordered the impleadment of the petitioner as a party respondent. In my considered view, the order so passed to this effect by learned trial Court does violence to the law as has been laid down by the Constitution Bench of Hon''ble Supreme Court in Hardeep Singh vs. State of Punjab and Others (supra). 16. In view of above discussion, this petition is allowed. Impugned order dated 14.06.2017 passed by learned Special Judge, Rampur, in case No. 5K/7 of 2013, vide which present petitioner was ordered to be impleaded as an accused in the trial, is accordingly quashed and set aside. It is clarified that the order of impleadment of the present petitioner as an accused by learned trial Court has been set aside on technical grounds and this order shall not come in the way of learned trial Court to pass an appropriate order in this regard on a subsequent stage in accordance with law. 17. Petition stands disposed of in above terms. Miscellaneous applications pending, if any, stand disposed of.