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Madhya Pradesh High Court · body

2017 DIGILAW 827 (MP)

Virendra Singh v. State of M. P.

2017-07-14

S.K.AWASTHI

body2017
ORDER : S.K. Awasthi, J. This is third visit of the applicant to this Court with reference to the same prayer under Section 319 of Cr.P.C. relating to impleading the respondent No. 2 as an accused in the sessions trial No. 83/2011, pending before Second Additional Sessions Judge, Joura, District Morena (MP), which has been rejected by the trial Court vide order dated 15.03.2016. 2. The facts relevant for the adjudication of the instant case are that, the respondent No. 1, police station registered an FIR bearing crime No. 230/2010 relating to an incident occurred on 03.11.2010 at 12:30 pm. As per the complaint, the deceased-Shiv Kumar and the complainant were on their way to purchase kerosene. The respondent No. 2 alongwith other co-accused persons obstructed the way by surrounding them and thereafter, it has been alleged that the respondent No. 2 fired a gunshot on the chest of the deceased leading to his death. The FIR meticulously narrated the incident and in an unambiguous manner indicated the time of the incident i.e. 12:30 pm. The police proceeded to investigate the matter and after investigation, it was discovered that the respondent No. 2 was at ICICI Bank ATM located at Hazira, district Gwalior which is at the distance of 50 k.m. from the place of incident. Due to this revelation, the police dropped the name of the respondent No. 2 at the time of filing of charge-sheet, however, named all other persons whose overt-act was mentioned in the FIR. 3. After filing of the charge-sheet, an application under Section 319 of Cr.P.C. was preferred by the applicant on 03.04.2012, after recording of the statement of Virendra Singh (PW-1) before the Court. This application was dismissed by the trial court and the dismissal was assailed by filing a revision application before the High Court bearing criminal revision No. 455/2012, which was disposed of with a direction to the trial Court to consider the said application afresh after affording opportunity of hearing to all concerned persons. This observation led to filing second application under Section 319 of Cr.P.C. This second application again suffered the same fate as the earlier one and was dismissed vide order dated 03.04.2013. The applicant being discontent with the outcome of the second application under Section 319 of Cr.P.C. preferred a criminal revision No. 314/2013 which was decided on 27.03.2014 by this Court. The applicant being discontent with the outcome of the second application under Section 319 of Cr.P.C. preferred a criminal revision No. 314/2013 which was decided on 27.03.2014 by this Court. The order passed by this Court was descriptive in nature and dealt with all the contentions as were available at relevant point of time. However, upon finding no merit in the revision application and in absence of any material which may dilute the evidence collected by the respondent No. 1, the same was dismissed. 4. The matter escalated to the Hon'ble Supreme Court by filing SLP(criminal) No.21299/2014. Although the Hon'ble Supreme Court did not show any indulgence to the matter but reserved liberty to the trial Court to take cognizance against the respondent No. 2 in case any further evidence comes into light. The perusal of the order dated 17.11.2014 reflects that an emphasis has been laid on the phrase further evidence. 5. In this background, the trial proceeded before the trial Court and statement of four more witnesses, namely, Dr. Sanjeev Bandil (PW-2), Parimal (PW-3), Damodar (PW-4) and Dilip (PW-5) were recorded. At this stage, another application under Section 319 of Cr.P.C. was moved on 09.09.2015, on the ground that the Hon'ble Apex Court had reserved liberty for filing of the fresh application if any further evidence comes into light. Such application was dismissed vide the impugned order dated 15.03.2016, on the ground that no further evidence has surfaced to validate filing of application under Section 319 of Cr.P.C. 6. The learned counsel for the applicant submits that the trial Court has wrongly appreciated the liberty reserved by the Hon'ble Supreme Court in its order dated 17.11.2014 because the Hon'ble Supreme Court had categorically observed that if any new material is pointed out regarding involvement of respondent No. 2, then the parties may prefer a fresh application under Section 319 of Cr.P.C. Moreover, the statement of Dilip (PW-5) specifically, points out that the total time for reaching Hazira, Gwalior from the place of incident is 21 minutes which is a new piece of evidence diluting the investigation about the presence of the respondent No. 2. Therefore, it was contended that the application under Section 319 of Cr.P.C. ought to have been allowed by the trial Court. 7. Therefore, it was contended that the application under Section 319 of Cr.P.C. ought to have been allowed by the trial Court. 7. Per contra, learned counsel for the respondents highlighted that the applicant had previous enmity with the present respondent No. 2 due to which there is contain abuses of Criminal Justice System so as to rope in respondent No. 2 in any manner. Thus, the instant revision application deserves to be dismissed. 8. I have considered the rival contentions of the parties and have perused the record. 9. The sole piece of evidence which deserves to be considered for taking a view as to whether the same is enough for naming the respondent No. 2 as an accused or not, is the statement of Dilip (PW- 5), according to whom the total time for reaching Hazira, from the place of incident is 21 minutes and, therefore, the applicant is deducing that the presence of respondent No. 2 at Hazira, Gwalior is not an impossibility and can happen in normal course. 10. The Hon'ble Supreme Court while reserving liberty to the applicant to move fresh application in the even of 'further evidence' also observed that the material must justify implication of the respondent No. 2 as an accused. The piece of evidence relied upon by the applicant is nothing but presumptive in nature and is not a statement of fact witnessed by Dilip (PW-5). Apart form it, this opinion of Dilip (PW-5) cannot be considered to have diluted the material collected by the police which indicated that the respondent No. 2 was not present at the place of incident at the relevant point of time. Therefore, in the considered opinion of this Court, the trial Court has correctly decided the application filed under Section 319 of Cr.P.C. Rather the applicant has misused the liberty extended by the Hon'ble Supreme Court vide order dated 17.11.2014. 11. Taking this view of the matter, the present revision application is dismissed. However, needless to state that the liberty extended by the Supreme Court shall obviously remain in force. 12. 11. Taking this view of the matter, the present revision application is dismissed. However, needless to state that the liberty extended by the Supreme Court shall obviously remain in force. 12. Before parting with the case, it would be apt to observe that by moving a frivolous application under Section 319 of Cr.P.C., the applicant has wasted quality judicial time and therefore, it would be apposite to impose cost on the applicant so that he may be cautious while taking recourse to Section 319 of Cr.P.C. Consequently, cost of Rs. 10,000/- is imposed on the applicant with direction to deposit the same with High Court Legal Services Authority, Gwalior within a period of 15 days from today. 13. The Registry is directed to inform about compliance of the direction regarding payment of cost by the applicant.