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2023 DIGILAW 895 (MP)

Yash Vardhan Singh v. State of Madhya Pradesh

2023-11-03

SANJAY DWIVEDI

body2023
ORDER Sanjay Dwivedi, J. - Shri K.C. Ghildiyal, learned senior counsel appearing for the petitioner at the very inception has submitted that he is not pursuing this petition in respect of petitioner No.2, namely, Tejbhan Singh @ Teja Patel and as such, he seeks withdrawal of this petition in his respect. 2. Accordingly, this petition is dismissed as withdrawn in respect of petitioner No.2 Tejbhan Singh @ Teja Patel. 3. This petition is filed under Section 482 of the Code of Criminal Procedure asking for quashing of order dated 26.11.2013 passed by trial Court whereby the Court exercising the power provided under Section 319/193 of Cr.P.C. decided the application directing the present petitioner i.e. Yash Vardhan Singh to be included in the array of accused persons and also directed that the arrest warrant be issued for securing his presence before the Court. 4. The said order is being assailed by the present petitioner mainly on the ground that from the impugned order itself, it reveals that the trial Court has relied upon the statements of PW-1, PW-4, PW-6 and PW-7, namely, Ramrati, Raj Kumar Shukla, Ganesh Prasad Shukla and Kamlesh Prasad Shukla respectively, in which, they have taken the name of present petitioner and directed that as per their statement, the present petitioner should be made accused and as such, directed that he may be arrested and produced before the Court so as to conduct a trial against him in relation to the offence registered vide Crime No.373/2003 under Sections 307/376 (2A)/436 of the Indian Penal Code. 5. Shri Ghildiyal has submitted that though the trial Court has taken shelter of the statement of those witnesses, but from perusal of their statement, it is clear that they have not taken the name of present petitioner i.e. Yash Vardhan Singh and as such, exercising power provided under Section 319 of Cr.P.C. by the trial Court is absolutely illegal and the order making present petitioner an accused in the alleged crime deserves to be set aside. 6. 6. Shri Ghildiyal has read over the statement of those witnesses, copy of which has been filed by the petitioner along with the petition and pointed out that the order passed by the trial Court and observation made therein is absolutely perverse because the name of present petitioner has not been taken by any of the witnesses, although in the FIR, the name of present petitioner was there. He has submitted that the CID investigated the matter and found that the present petitioner was not present on spot at the time of alleged crime and his presence was found somewhere else, therefore, as per the provision of Section 169 of Cr.P.C. when the charge-sheet was filed, the present petitioner was not made accused. He has further submitted that under such circumstances, the impugned order exercising power provided under Section 319 of Cr.P.C. by the trial Court is absolutely unfounded and is liable to be set aside. In support of his submission, he has placed reliance upon a judgment reported in (2014) 3 SCC 92 (Hardeep Singh Vs. State of Punjab & Others and other connected appeals), in which the Supreme Court has observed as under:- "55.Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove." 7. Per contra, Shri S.K. Kashyap, learned counsel appearing for the State has submitted that the name of present petitioner has not been included in the array of accused persons at the time of filing of chargesheet that too on the basis of investigation conducted by CID, in which, it is found that the presence of present petitioner was not there at the time of crime and his name has wrongly been added in the FIR along with other accused persons, therefore, the State has filed the chargesheet not including the name of present petitioner. He has further submitted that at this stage, he has nothing to say about the impugned order and even he is not in a position to oppose the submission made by the counsel for the petitioner. 8. Shri Binod Kumar Tiwari, learned counsel appearing for the objector/complainant has supported the impugned order and tried to justify the observation made therein. He has further submitted that at this stage, he has nothing to say about the impugned order and even he is not in a position to oppose the submission made by the counsel for the petitioner. 8. Shri Binod Kumar Tiwari, learned counsel appearing for the objector/complainant has supported the impugned order and tried to justify the observation made therein. He has submitted that as per the incident narrated by the complainant before the police and the FIR lodged thereof, it is clear that the present petitioner was involved in the alleged crime and therefore, his name has been taken by the complainant while lodging the FIR. He has further submitted that there are 22 witnesses and according to him, 10 witness are yet to be examined. He has further submitted that looking to the nature of incident and the manner in which crime has been committed, when the witnesses have taken the name of present petitioner and his name was very much there in the FIR, there was no reason for not including the name of present petitioner in the array of accused persons and as such, the trial Court has rightly exercised the power provided under Section 319 of Cr.P.C. and directed that the present petitioner be included in the array of accused persons and warrant of arrest has rightly been issued against him. He has submitted that the witnesses are almost examined and there is no reason for interfering in the impugned order because the trial is likely to be concluded within a very short period of time and whatever order is passed by the trial Court, the present petitioner may face the same. As such, the order passed by the trial Court exercising the power of Section 319 of Cr.P.C., does not call for any interference at this stage. According to him, the present petitioner is very influential person having strong political background and therefore, nobody is coming forward to get the FIR registered against him. Even the police is not supporting the complainant party and as such, after conducting the investigation by the CID, they have suggested for removal of the name of present petitioner from the array of accused persons, ergo in the charge-sheet the name of the present petitioner was not included in the array of accused persons. Even the police is not supporting the complainant party and as such, after conducting the investigation by the CID, they have suggested for removal of the name of present petitioner from the array of accused persons, ergo in the charge-sheet the name of the present petitioner was not included in the array of accused persons. He has further submitted that the impugned order is justified and it does not call for any interference. According to him, the petition deserves to be dismissed. 9. Considering the rival submissions made by learend counsel for the parties and after perusal of record, especially the order passed by the trial Court which is impugned in this petition whereunder the trial Court has exercised the power provided under Section 319 of Cr.P.C., it reveals that the trial Court has taken cognizance of the statement of the witnesses recorded in the Court viz PW-1, PW-4, PW-6 and PW-7, which are the prosecution witnesses and then the Court came to the conclusion that the proposed accused from serial number 1 to 8 were also involved in the alleged crime and therefore, they cannot take the benefit of the report submitted by the CID and that the presence of these accused persons was found somewhere else other than the crime scene at the relevant point of time and as such, the benefit of report of CID cannot be given to them. 10. Shri Ghildiyal, learned senior counsel appearing for the petitioner has drawn attention of this Court towards the statement of the witnesses i.e. PW-1, PW-4, PW-6 and PW-7, namely, Ramrati, Raj Kumar Shukla, Ganesh Prasad Shukla and Kamlesh Prasad Shukla respectively. 11. However, so far as the present petitioner is concerned, I have gone through the statement of all these witnesses and none of them has taken the name of present petitioner i.e. Yash Vardhan Singh. The victim and the complainant, both have not taken the name of present petitioner. Therefore, the finding given by the trial Court is contrary to the record and in other words it is perverse. The victim and the complainant, both have not taken the name of present petitioner. Therefore, the finding given by the trial Court is contrary to the record and in other words it is perverse. It is difficult to approve the order of the trial Court wherein it has exercised the power provided under Section 319 of Cr.P.C. which should be exercised sparingly, especially in the circumstances existing in the present case when the Special Agency i.e. CID has conducted an enquiry and submitted its report giving opinion that the present petitioner at the time of alleged incident was not present on spot and his presence was acknowledged somewhere else. Under such circumstances, taking shelter of Section 319 of Cr.P.C., the name of present petitioner cannot be included as an accused. 12. In the case of Hardeep Singh (supra), the Supreme Court has considered the object of Section 319 of Cr.P.C. and has observed that the real culprit should not get away unpunished and according to the Supreme Court, this is the part of concept of "fair trial". The Supreme Court has further observed that the degree of satisfaction for invoking Section 319 of Cr.P.C. should be of more than a prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that evidence, if not rebutted, may lead to conviction of the person sought to be added as an accused. Therefore, looking to the provision of Section 319 of Cr.P.C., which reads as under:- "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 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." and the scope of invoking the same, I have no hesitation to say that the trial Court has wrongly exercised such power in the case of present petitioner. It is a case, in which, the name of number of persons was taken and they have been made accused, but later on in an enquiry conducted by the CID on a request made by the persons who have been implicated, the CID submitted its report in which number of persons have been found to be falsely implicated whereas they were not present on spot and therefore, the charge-sheet was not filed against those persons. 13. The order impugned although reveals that the trial Court has seen the statement of the witnesses and found that they have taken the name of present petitioner, but situation was otherwise, nobody has taken the name of present petitioner. It is settled principle of law that the power of Section 319 of Cr.P.C. should be exercised sparingly. The Constitutional Bench of the Supreme Court recently in a case reported in (2023) 1 SCC 289 (Sukhpal Singh Khaira Vs. State of Punjab), has also observed about the scope of exercising the power of Section 319 of Cr.P.C. and formulated the guidelines which are to be taken note of by the Court while exercising such power. The guidelines are as follows:- "41.(111) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC? 41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. 41.2. 41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. 41.2. The court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. 41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. 41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. 41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. 41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with. 41.7. If the proceeding paused as in para 41.1 above, is in a case where the accused who were tried are to be acquitted, and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case. 41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated) trial. 41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319CrPC, the appropriate course for the court is to set it down for re-hearing. 41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. 41.11. 41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. 41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. 41.12. If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier: (a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused. (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused." 14. Considering the aforesaid, it is clear that in the present case, the trial Court has exercised the power provided under Section 319 of Cr.P.C. after taking into account the statement of the witnesses referred in the impugned order. However, there was no material available before the trial Court to summon the present petitioner i.e. Yash Vardhan Singh for facing the trial. As such, the impugned order in respect of the present petitioner namely Yash Vardhan Singh is hereby set aside. 15. Petition is accordingly allowed.