Delhi District Court
Cbi vs Lallan Ohja Etc. on 29 May, 2012
COURT OF MR. TALWANT SINGH
SPECIAL JUDGE, CBI-01
NEW DELHI
CC No. 02 / 2012
CBI V/S Lallan Ohja etc.
RC No. AC12012-A0001/CBI/ACB/New Delhi
U/s 120-B IPC & 7, 8, 10, 12
and 13(2) r/w 13 (1) (d) of PC Act
ORDER ON APPLICATIONS OF ACCUSED NO. 1 AND 3 UNDER SECTION
319 READ WITH SECTION 190 & 193 OF CR P C.
ORDER
1. By this common order three applications moved by accused no. 3 Hemant Gandhi and accused no. 1 A K Srivastava are disposed off. In the first application dated 14.05.2012, accused no.3 has submitted that one of the witnesses, namely Sh. S K Singh is liable to be made as an accused as the material on record prima facie shows his complicity in the present case. The applicant has relied upon judgments of Hon'ble Supreme Court titled Kishun Singh & Others Vs. State of Bihar, 1993 Crl. LJ 1700 and Nisar Singh Vs. State of UP, AIR 1995 SC 1493. It has been prayed that the said Sh. S K Singh be summoned at pre-charge stage and he be made as an accused as per provisions of Section 190 CrPC read with Section 319 CrPC.
2. Another application was moved by accused no. 3 on 26.05.2012 mentioning therein that the applicant/accused no. 3 has moved an application CC NO: 02/2012 Page No. 1 of 13 seeking sanction for prosecution in respect of Sh. S K Singh in view of the recent judgment of Hon'ble Supreme Court in the matter of Dr. Subramanian Swamy Vs. Dr. Manmohan Singh & Others, Civil Appeal No.1193 of 2012 (Decided on 31.01.2012). As per applicant, he had moved the application for sanction on 23.05.2012 before the Sanctioning Authority, although it was the duty of the CBI to do the needful and he is very hopeful that sanction for prosecution in respect of Sh. S K Singh would be granted very soon in view of the facts of the case. So, it has been prayed that the present case may be kept in abeyance till the orders on the application filed by accused no. 3 for grant of sanction in respect of Sh. S K Singh.
3. Accused no. 1 has also moved an application dated 26.05.2012 U/s 319 CrPC read with Section 193 CrPC for making Sh. S K Singh as an accused instead of prosecution witness and for proceeding against him in the present case. It has been mentioned in the application that PW8 Sh. S K Singh was Superintendent Central Excise, Delhi-01. His statement was also recorded under Section 164 CrPC which has been reproduced in para 3 of the application. In para 4 it has been mentioned that as per this statement, it is evident that he had admittedly received money from accused Anand Aggarwal and kept the same in his car parked outside his house and on the basis of this admission/confession, the prosecution should have made him as an accused. It has been further submitted that this statement is sufficient to implead Sh. S K Singh as one of the accused instead of citing him as a prosecution witness because the statement recorded U/s 164 CrPC is in the form of evidence, which could be used against the person making such confessional CC NO: 02/2012 Page No. 2 of 13 statement. It has also been submitted that if Sh. S K Singh is not made as an accused then other accused persons would be prejudiced. Therefore, it has been prayed to proceed against Sh. S K Singh by arraying him as one of the accused instead of prosecution witness on the basis of his statement U/s 164 CrPC.
4. Notices of these applications were issued to CBI, which chose not to file any reply. Arguments have been heard.
5. Ld. Senior Advocate appearing for accused no. 1 has reiterated the contents of the application of accused no. 1 and has relied upon the following judgments:-
(i) Kishun Singh & Others Vs. State of Bihar, 1993 Crl. LJ 1700.
(ii) Pattani Vs. State, 1993 Crl. L J 1709.
(iii) Virendra Singh Vs. State of UP & Another, 1992 Crl. LJ 2825.
(iv) S K Abubakkar Vs. Mst. Ohidunnessa Bibi, 1992 Crl. LJ 2826.
(v) Chauthmal & Others Vs. State of Rajasthan, 1982 Crl. LJ 1403.
(vi) Manoharlal Vs. State, 1982 Crl. LJ 1411.
(vii) Duli Chand & another Vs. State of Rajasthan, 1993 Crl. LJ 827.
(viii) Bhagirathi Barik & Others Vs. State, 1993 Crl. LJ 828.
I have gone through these judgments.
6. Ld. Senior Advocate has submitted that on the basis of the statement of Sh. S K Singh recorded U/s 164 CrPC and on the strength of the judgment of the Hon'ble Supreme Court in the matter of Kishun Singh & Others Vs. State of Bihar, 1993 Crl. LJ 1700, Sh. S K Singh is liable to be summoned as an accused at CC NO: 02/2012 Page No. 3 of 13 the pre-charge stage and this Court is fully competent to do so. He has also referred to other judgments of the Hon'ble High Courts to support his arguments. Similarly, Ld. Counsel for accused no. 3 has also relied upon the judgment of Kishun Singh and Ors. vs. State of Bihar (supra) and Nisar Singh Vs. State of UP (supra) and he has also prayed that Sh. S K Singh be summoned as an accused in this case at this stage.
7. On the other hand, Ld. Sr. PP for CBI has submitted that cognizance in this case has been already taken and five accused persons have been summoned; who are appearing before this Court and the matter is fixed for arguments on charge. Ld. Sr. PP has submitted that the stage at which this Court can exercise power to summon any other person as an accused will come only after recording of some evidence and if on the basis of said evidence this Hon'ble Court comes to a conclusion that prima facie involvement of some other person as an accused is also made out. Then the said person may be summoned as an accused U/s 319 CrPC. There is no other stage to summon any other person as an accused. It has been submitted that these applications have been filed only to delay the further progress in the case.
8. After hearing the arguments and going through the applications and the law cited by Ld. Senior Advocate appearing for accused no. 1 and Ld. Counsel for accused no. 3, my considered view is as under:-
(i) It is a very unfortunate that Senior Advocate Sh. S K Rungta, appearing for accused no. 1, duly assisted by Ms. Pratiti Rungta, Sh. Prashant CC NO: 02/2012 Page No. 4 of 13 Singh and Ms. Neha Tanwar, Advocates has cited the judgment of Hon'ble Supreme Court in the matter of Kishun Singh and Ors. vs. State of Bihar (supra), which had been over ruled by Three Judges Bench of Hon'ble Supreme Court way back in 1998 in the matter of Ranjit Singh Vs. State of Punjab, AIR 1998 Supreme Court 3148 .
(ii) Similarly, Ld. Counsel for accused no. 3, namely Dr. Ashutosh, who is very learned person, has also cited the same over-ruled judgment of Hon'ble Supreme Court.
(iii) No doubt the judgment of Hon'ble Supreme Court in Kishun Singh & Others Vs. State of Bihar (supra) was reiterated by the Hon'ble Supreme Court in Nisar Singh Vs. State of UP (supra) but another Division Bench of Hon'ble Supreme Court in Raj Kishore Prasad Vs. State of Bihar & another, AIR 1996 SC 1931 had expressed reservations regarding ratio of Kishun Singh & Others Vs. State of Bihar (supra), which are reproduced hereunder:
"2. Can a Magistrate undertaking commitment under Section 209 Cr.P.C. of a case triable by a Court of Session, associate another person as accused, in exercise of power under Section 319 of the Code of Criminal Procedure, or under any other provision, is the significant question which crops up for consideration in this appeal.
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6. When the papers were laid before the Chief Judicial Magistrate, Buxor, the first informant made an CC NO: 02/2012 Page No. 5 of 13 application requiring the Magistrate to exercise his powers to summon the appellant so as to send him to stand trial alongside the accused sent up by the police, before the Court of Session. The Chief Judicial Magistrate dismissed the application of the first informant which led to a revision petition by the first informant before the Court of Session. The Court of Session allowed the revision petition and desired of the Chief Judicial Magistrate issuance of warrant of arrest of the appellant to face trial. It was then the appellant's turn to move the High Court under Section 482 Cr.P.C. praying for quashing of the orders of the Court of Session. Since the same was dismissed by the High Court, the appellant is here before us inter alia contending that at the stage set for employing Section 209 Cr.P.C., the Chief Judicial Magistrate has no power under Section 319 of the Code or otherwise, to add an accused in addition to the one facing commitment. Hence this appeal by special leave.
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13. S/Shri K.B. Sinha and H.L. Aggarwal, learned Counsel appearing on opposite sides, have heavily dwelt upon Kishun Singh and Ors. v. State of Bihar, to contend, that on plain reading of Sub-section (1) Section 319, there could be no doubt, that it must appear from the evidence tendered in the course of any inquiry or trial, that any person not being the accused, has committed any offence, for which he could be tried together with the accused, and that the said power could be exercised only if it so appears from the evidence adduced at the trial and not otherwise. Since that stage has not arrived in the instant case it is maintained that Section 319 is inapplicable. This is obviously correct. Nowhere has any evidence being recorded to invoke CC NO: 02/2012 Page No. 6 of 13 Section 319 of the Code. In the aforesaid case, this Court has ruled that Sub-section (1) of Section 319 contemplates existence of some evidence appearing in the course of trial, wherefrom the court can prima facie conclude, that the person not arraigned before it, is involved in the commission of the crime, for which he can be tried with those already named by the police. Even a person who had earlier been discharged was spelled out to fall within the sweep of the power conferred by Section 319 of the Code. Therefore, this Court's view as crystallized is that in stricto sensu, Section 319 of the Code cannot be invoked in a case where no evidence had been led at a trial, wherefrom it can be said that the accused, other than the one facing trial, appears to have been involved in the commission of the crime.
14. Learned counsel differ however on the other question posed in Kishun Singh's case. It was whether a court of Session, to which a case is committed for trial by a Magistrate, could, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973, to stand trial alongwith those named therein; if not in exercise of power conferred by Section 319 of the Code, then under any other provision? The answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of Original Jurisdiction gets lifted, thereby investing the court of Session unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It is on this reasoning that this Court sustained the order of the Court of Session (though it CC NO: 02/2012 Page No. 7 of 13 ostensibly was under Section 319 Cr.P.C. terming material of investigation before it as 'evidence') summoning the un-named accused to stand trial with the named accused. A stage has thus been discovered, before the reaching of the stage for exercise of power under Section 319 Cr.P.C., on the supposition and premise that it is pre-trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power exercisable by the Court of Session under Sections 227 and 228 of the Code, enabling it to discharge under Section 227 or charge under Section 228 the accused persons before it and while so to summon another accused involved in the commission of the crime, prima facie appearing from the material available on record of the case. Thus at a stage posterior to the stage envisaged under Section 319, the Court of Session has been held empowered to summon an accused if a prima facie is made out from the material available on the record.
15. We have respectfully to express, in the wake of the legislative policy, our reservations to such view even though that view has been met with approval in Nisar and Anr. v. State of U.P. . The scheme and design of Chapter XVIII and the legislative policy reflected therein seems to have been underestimated. It is designed to secure speedy trial for those who are facing it. Sections 225 to 237 Cr.P.C. (which includes Sections 227 and 228) are integrated provisions of a lot which govern in totality the trial proceedings under Chapter XVIII titled "Trial before a Court of Session".
There seemingly is no intermediate stage envisaged between commitment and trial or the trial proceeding splitting into pre-charge trial and after charge trial. Trial begins with Section 225 when the Public Prosecutor is present before the Court of Session to conduct the prosecution and opens its case disclosing the evidence by which he proposes to prove the guilt of the accused. It is for him to highlight the particulars of the evidence he would lead to prove the case against the accused facing trial. The stage of Sections 227 and 228 comes as the next step after observance of such CC NO: 02/2012 Page No. 8 of 13 procedure, as part of trial. It is thus designed that proceedings to discharge or charge the accused are part of trial. Addition of an accused by summoning or re-summoning a discharge accused, and that too without hearing the accused, has only been permitted in the manner provided by Section 319 Cr.P.C. on evidence adduced during the course of trial, and in no other way."[ emphasis supplied]
(iv) Later on in the year 1998, Three Judges Bench of Hon'ble Supreme Court in Ranjit Singh Vs. State of Punjab, AIR 1998 Supreme Court 3148 had over-ruled the judgment of Kishun Singh and Ors. vs. State of Bihar (supra) and it was held as under:
"17. It is clear that during the said stage the Court of Session can deal only with the accused who is referred to in Section 209. The accused who can appear or can be brought before a Sessions Court at that stage is only that accused who is referred to in Section 209, Section 227 deals with the power of the Court to decide whether that accused is to be discharged or not. If he is not discharged the Sessions Court is obliged to frame a charge against that accused as per Section 228 of the Code. Thereafter the plea of that accused has to be recorded as enjoined by Section 229. The stage of evidence collection commences only next, (vide Sections 230 and 231 of the Code).
18. So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code that can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused.
19. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after CC NO: 02/2012 Page No. 9 of 13 reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers.
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23. For the foregoing reasons we find it difficult to support the observations in Kishun Singh's case (1993 AIR SCW 771) that powers of the Sessions Court under Section 193 of the Code to take cognizance of the offence would include the summoning of the person or persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record."[emphasis supplied]
(v) In view of the judgments of the Hon'ble Supreme Court in the matter of Ranjit Singh Vs. State of Punjab (supra) and in Raj Kishore Prasad Vs. State of Bihar & Others (supra), it is clear that there is no other stage in a trial after taking cognizance of offences and summoning of named accused when another person can be summoned as an accused except as provided under Section 319 Cr. P. C after recording of some evidence. The said stage has not arrived. Mere recording of statement U/s 164 Cr. P. C before a Ld. Magistrate at the request of IO cannot be construed as recording of evidence in the present case.
(vi) The Advocates appearing before the Court are officers of the Court. They are engaged by their clients to render them legal assistance. Ld. CC NO: 02/2012 Page No. 10 of 13 Advocates have a duty to defend their clients in a criminal matter to the best of their abilities but side by side they owe a duty towards the Court. Lord Denning had described the duties of a lawyer towards the Court in the case of Rondel v. Worsley:
"[The advocate] has a duty to the court which is para- mount. It is a mistake to suppose that he is the mouth- piece of his client to say what he wants; or his tool to do what he directs. He is none of these things. He owes al- legiance to a higher cause. It is the cause of truth and justice. He must not conspicuously mis-state the facts. He must not knowingly conceal the truth ... He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific in- structions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all these things is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline." [1966] 3 W.L.R. 950 at 962-63 (C.A.) Rondel case went to the House of Lords in appeal where Lord Reid said:
"Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every questions, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with the client's wishes or with what the client thinks are his personal interests. Coun- sel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or CC NO: 02/2012 Page No. 11 of 13 documents which may tell against his clients but which the law or the standards of his profession re- quire him to produce." Rondel v. Worsley, [1967] 3 All E.R. 993 (H.L.) per Lord Reid at 998.
(vii) Ld. Advocates are expected to cite the prevalent law and not rely upon over-ruled judgments knowing fully well that over-ruled judgments are not good law. It is expected that in future the Ld. Advocates appearing for accused no. 1 and 3 will not cite any over-ruled judgments before this Court as they are part of the justice delivery system and it's their duty to uphold high traditions of the profession.
(viii) As far as the application of accused no. 3 for keeping the present matter in abeyance till the order of the sanctioning authority on his application for grant of sanction for prosecution in respect of PW 8 Sh. S K Sigh is concerned, reliance has been placed upon the judgment of Hon'ble Supreme Court in the matter of Dr. Subramanian Swamy Vs. Dr. Manmohan Singh & Others (supra).
(ix) With due respect, the facts of the present case are different. In the case of Dr. Subramanian Swamy (supra), the sanction had been sought by Dr. Subramanian Swamy for filing a criminal complaint against the public servant. In the present case, the prosecution has been lodged by CBI and it is the prerogative of the CBI to implead the accused persons including the public servants after seeking permission from the sanctioning authorities.CC NO: 02/2012 Page No. 12 of 13
(x) In my view, in a case initiated on registration of an FIR by CBI, no other person, whether he is an accused or a third party, has a right to seek sanction from the sanctioning authority for initiating prosecution against a person who has been not named as an accused in the case filed by CBI. Since, the CBI in its wisdom has not arrayed PW 8 Sh. S K Singh as an accused in this case, so there is no question of seeking sanction by CBI. Hence, there is no ground to keep the present matter in abeyance in view of an application filed by accused no. 3 before the sanctioning authority. Hence, the said application is not maintainable.
9. In view of the above, the three applications filed by accused nos. 1 & 3 for summoning of PW8 Sh. S. K. Singh as an accused and to keep trial in abeyance till order on sanction are liable to be dismissed. It appears that these applications were moved only with a view to delay further progress of case.
10. The applications are hereby dismissed with a cost of Rs.50,000/- (Rs. Fifty Thousand Only) to be deposited by accused no. 1 Dr. A K Srivastva and accused no.3 Hemant Gandhi in equal share (i.e. Rs. 25,000/- each) with New Delhi Bar Association for establishment of the e-library within one week from today. Ordered accordingly.
Announced in the open court (TALWANT SINGH)
on 29th day of May, 2012 Special Judge CBI-01, ND
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