Madhya Pradesh High Court
Matadeen @ Mata Prasad Tiwari vs Parimal on 22 November, 2016
1
Cr.R.No.713/2016
(Matadeen @ Mata Prasad Tiwari v. Parimal & Ors.)
22.11.2016
Shri Dharmendra Rishishwar, counsel for the
applicant.
This criminal revision under Section 397 read
with 401 of CrPC has been filed against the order
dated 10.05.2016 passed by Special Judge (M.P.
Dacoity Avam Vyapaharan Prabhavit Kshetra
Adhiniyam) Joura, District Morena in Special Case
No.64/2015 by which the application filed by the
applicant under Section 319 of CrPC has been
rejected.
2. The facts of the case for disposal of this
revision in short are that on 15.04.2011, the
applicant had filed a criminal complaint, against one
Parimal and Pankaj @ Devgowda and three
unidentified persons who were having their face
covered. It was alleged that he had filed an
application before the Court of SDM Joura, District
Morena seeking a relief that the encroachments
made on the Government lands situated in Village
Hadwasi be removed and the general public may be
granted relief. The notices were issued to Parimal
and Pankaj @ Devgowda. After receiving the notice,
the accused Devgowda got annoyed and on
30.05.2011 at about 6.30 in the evening, the
accused came to the tubewell of the complainant
and started abusing him and pelted stones. The
incident was witnessed by various villagers but due
to terror of the accused persons nobody could dare
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Cr.R.No.713/2016
(Matadeen @ Mata Prasad Tiwari v. Parimal & Ors.)
to stop them. After an hour of the incident, when
the applicant went to the house of the accused
persons alongwith the respectable members of the
society, they caught hold of his collar and again
abused him. Anyhow, the applicant managed to
escape from the place of incident and came to his
tubewell. At about 11-12 in the night, when the
applicant was sleeping within the boundary wall of
his tubewell then he realized that some persons
have came inside the fencing after jumping the
boundary wall. Four persons have covered their face
and the accused Pankaj was opened face. The
persons who had covered their face were having
lathi, danda in their hands and the accused Pankaj
was either having a big knife or a katta. Sensing a
danger to his life, the applicant immediately went
inside the room and climbed over the roof and
informed his son on mobile that he has been
surrounded by the accused Devgowda. His son
alongwith his mother came rushing to the tubewell.
In the meanwhile, the accused persons were trying
to break open the door and were continuously
abusing him and were threatening him to withdraw
the application which he has filed before the Court
of SDM. When the accused Devgowda realized that
the villagers are coming then all the accused
persons ran away from the spot. While going from
the tubewell, the accused Devgowda took away 150
meters electric wire worth Rs.7,500/-, one shirt
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Cr.R.No.713/2016
(Matadeen @ Mata Prasad Tiwari v. Parimal & Ors.)
which was lying on the cot and an amount of
Rs.1,400/- which was kept in his pocket was also
taken away. A torch which was kept on the cot and
one hasiya costing Rs.30/- were also taken away.
3. The trial court took the cognizance on the
complaint against one Parimal and Pankaj @
Devgowda.
4. As Pankaj @ Devgowda was juvenile on the
date of incident, therefore, the proceedings were
stopped against him with liberty to the
applicant/complainant to take necessary action
against him before the competent forum and the
charges were framed against the accused Parimal.
5. After the evidence of some of the witnesses
were recorded, the applicant filed an application
under Section 319 of CrPC for summoning the
respondents No.4 & 5 as additional accused. By the
impugned order dated 10.05.2016, the trial court rejected the said application. Being aggrieved by the said order, the present revision has been filed.
6. It is submitted by the counsel for the applicant that in para 5 of the examination-in-chief, the applicant Mata Prasad Tiwari (P.W.1) has stated that on 01.11.2011 two persons came to him and insisted that he should compromise with Devgowda and Parimal otherwise Devgowda would have killed him on the date of incident and since they were accompanying him, therefore, he survived. According to Mata Prasad Tiwari (P.W.1), these two 4 Cr.R.No.713/2016 (Matadeen @ Mata Prasad Tiwari v. Parimal & Ors.) persons were the respondents No.4 & 5. Similarly, in the statement recorded under Section 202 of CrPC, the son of the applicant namely Girish Tiwari (P.W.2), had stated that on 01.11.2011 two persons came to his house and insisted that they should compromise the matter and in fact Devgowda could have killed him on the date of the incident but he survived because these two persons were accompanying him. However, the wife of the complainant namely Ram Dulari and the complainant witness No.4 Ram Prasad Sharma have not stated that the respondents No.4 & 5 were also involved in the incident which took place on 30.05.2011. Even in the application which was made by the complainant on 09.11.2011 to the SHO, Police Station Baghchini, the fact of pressurizing by the respondents No.4 & 5 on 01.11.2011 for settling the dispute and that they were also involved in incident dated 30.05.2011 is not mentioned. Thus, the evidence of the complainant that on the basis of the admission/extra judicial confession made by the respondents No.4 & 5, he came to know that respondents No. 4 & 5 were also involved in the offence committed on 30.05.2011 is not more than raising suspicion.
7. The Supreme Court in the case of Michael Machado and Ano. v. Central Bureau of Investigation and Ano., reported in AIR 2000 SC 5 Cr.R.No.713/2016 (Matadeen @ Mata Prasad Tiwari v. Parimal & Ors.) 1127 has held as under:-
"14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub- section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re- examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the court should refrain from adopting such a course of action."
8. In the case of Hardeep Singh v. State of Punjab & Ors., reported in (2014) 4 SCC 92, it has been held as under:-
"104. In Palanisamy Gounder v. State, (2005) 12 SCC 327, this Court deprecated the practice of invoking the power under Section 319 CrPC just to conduct a fishing inquiry, as in that case, the trial court exercised that power just to find out the real truth, though there was no valid ground to proceed against the person summoned by the court.
105. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a 6 Cr.R.No.713/2016 (Matadeen @ Mata Prasad Tiwari v. Parimal & Ors.) person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."
9. Considering the facts and circumstances of the case specifically when the names of the respondents No.4 & 5 are not mentioned in the FIR and in the application dated 09.11.2011 which was made to the SHO, Police Station Baghchini, there is no mention of the fact that the respondents No.4 & 5 had visited the house of the complainant and informed him that they were also involved in the offence which is alleged to have taken place on 30.05.2011, it is suspicious that whether the respondents No.4 & 5 had made any admission 7 Cr.R.No.713/2016 (Matadeen @ Mata Prasad Tiwari v. Parimal & Ors.) /extra-judicial confession before the applicant with regard to their involvement in alleged offence which took place on 30.05.2011. Suspicion is not sufficient to hold that there is reasonable prospect of convicting the respondents No.4 & 5. The power under Section 319 of CrPC should not be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. In order to exercise powers under Section 319 of CrPC strong evidence is required which is missing in the present case.
10. The Trial Court after appreciating the facts of the case has come to the conclusion that there is no sufficient evidence and basis for taking cognizance against the respondents No.4 & 5. The learned counsel for the applicant also could not point out any perversity or illegality in the impugned order dated 10.05.2016 passed by the trial court.
11. Accordingly, this revision is dismissed being devoid of merits. No order as to costs.
(G.S. Ahluwalia) Judge (ra)