Kerala High Court
Mani vs Chandrasekharan on 29 June, 2001
ORDER N. Krishnan Nair, J.
1. This revision arises out of the order dated 19.3.2001 of the Enquiry Commissioner and Special Judge, Trivandrum in V.C. No. 7/88 HQRS, impleading the petitioner as the 4th accused in C.C. No. 2/99.
2. The facts necessary for the disposal of this case may be stated as follows: The Deputy Inspector of Police, Vigilance and Anticorruption Bureau, Trivandrum, registered crime No. V.C. No. 7/88/HQRS against Mr. R. Balakrishna Pillai and four other alleging transfer of Power (electricity ) unauthorised to M/s. Graphite India Ltd. for enabling the said firm to derive pecuniary advantage. The charge sheet in the first module was filed and the court took the case on file as C.C. No. 27/88. After the trial the court below found accused Nos. 1 and 2 guilty of the offences and they were convicted and sentenced. The conviction and sentence were confirmed by the High Court. The charge sheet in the second module was filed against Mr. R. balakrishna Pillai, Mr. P. Keshava Pillai and Mr. Gopalakrishna Pillai which was taken on file as C.C. No. 2/99 and charges were framed against them on 20.3.2000. Thereafter a petition was filed by the Superintendent of Police, Vigilance and Anticorruption Bureau, Trivandrum for permission to conduct further investigation in the case and the petition was allowed by the lower court. After further investigation the investigating officer filed an additional report stating that taking the totality of the facts, materials and circumstances that emerged during the further investigation, there is no tangile or admissible evidence against the petitioner or any other person, except for those, who are already charge sheeted. Thereafter, on a consideration of the materials collected during the investigation, the learned Special Judge impleaded the petitioner as the 4th accused in the case. The order is seriously challenged in this revision.
3. Heard learned counsel Sri. T.R. Raman Pillai for the petitioner and the learned Advocate General for the State. The learned counsel for the Additional Respondent was also heard.
4. Learned counsel for the petitioner strongly contended that the order of the lower court is clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel, the lower court should not have exercised the powers under S. 319 of the Crl. P.C. without collecting evidence against the petitioner in the course of inquiry of trial. He placed much reliance on the decisions of the Apex Court in Ranjit Singh v. State of Punjab (AIR 1998 (3) SC 3148) and Michael Machado v. C.B.I. (2000 SCC (Crl.) 1609). The learned Advocate General was also not inclined to support the impugned order. On the other hand the learned counsel for the additional respondent supported the order and urged that there is no ground for interference.
5. The question arising for consideration is whether the impugned order impleading the petitioner as the 4th accused in the case is sustainable. It is seen that the lower court has impleaded the petitioner as an accused in the case in view of the provisions contained in S. 173(8) and S. 319 of the Crl. P.C. In this case charge sheet in the second module filed against three persons was taken on file as C.C. No. 2/99 and charges were already framed against them. Thereafter a petition was filed by the Superintendent of Police for permission to conduct further investigation and that petition was allowed. But the report filed under S. 173(8) of the Crl. P.C. does not show the involvement of the petitioner in the crime. The relevant portion of the report reads as follows:
"Taking the totality of the facts, materials and circumstances that emerged during the further investigation it is seen that there is no tangible or admissible evidence against Sri. K.M. Mani or any other person except for those who are already charge sheeted. Also the further investigation could not collect any further evidence against the accused persons who are charge sheeted already".
No doubt when a report under S. 173(8) of the Crl. P.C. is filed provisions of sub-ss. (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under S. 173(2) of the Code. When a report is filed by the police under S. 173 of the Crl. P.C., the court may agree with the report or disagree with the report. Even if the court disagree with the report, the court is competent to take cognizance of the offence complained of. Even if it is assumed that on the basis of a negative report filed under S. 173(8), the Court can take cognizance of an offence against a person who is not arrayed as an accused in the original charge sheet, in this case the lower court is not justified in impleading the petitioner as an accused without complying with the provisions of S. 319 of the Crl. P.C. as the case is now at the trial stage. If the court has already taken cognizance of an offence against a person on the basis of the report filed under S. 173(2) of the Code, it is not just and proper to implead another person as an accused at the trial stage without complying with the provisions of S. 319 of the Crl. P.C. especially when the report under S. 173(8) does not show the involvement of that person in the perpetration of the said crime. In this case in view of the report filed under S. 173(8) of the Crl. P.C. it cannot also be said that the petitioner was omitted to be included in the charge sheet due to some inadvertence or omission on the part of the investigating agency. Under these circumstances, the lower court was not justified in impleading the petitioner as an accused in view of the provision contained in S. 173(8) of the Code.
6. The lower court is also not justified in exercising the powers under S. 319 of the Cr. P.C. without recording evidence. According to the lower court the word "evidence" includes the statements of the witnesses recorded by the investigating officer and also the documents seized and produced in court relating to the same. I cannot agree. The word "evidence " in S. 319 means evidence recorded by the court during inquiry or trial. S. 319(1) of the Cr. P.C. reads as follows:
"Where, in the course of any inquiry into, or trial or, 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."
7. According to me, statements recorded under S. 161 of the Crl. P.C. or documents produced along with the charge sheet cannot be taken into account for the purpose of S. 319. In this connection it is advantageous to refer to the decision of the Supreme Court in Ranjit Singh v. State of Punjab (AIR 1998 (3) SC 3148). Overruling the decision of the Apex Court in Kishan Singh v. State of Bihar (1993 Crl. L.J. 1700) the Apex Court made it clear that 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 reaching evidence collection when powers under S. 319 of the Code can be invoked. It is clear from the observations in paragraph 19 of the judgment that the word "evidence" in S. 319 of the Cr.P.C. means evidence collected during inquiry or trial. The law laid down by the Apex Court in Ranjit Singh's case makes it obligatory for the court to record statements of witnesses and only on the basis of the statements of prosecution witnesses the power under S. 319 can be exercised. Again in Michael Machado v. C.B.I. (2000 SCC (Crl.) 609) the Supreme Court observed that the basic requirement for invoking S. 319 that the court must have reasonable satisfaction from the evidence already collected during trial or inquiry that some other person, who is not arraigned as an accused in the case, has committed an offence for which that person could be tried together with the accused already arraigned. The court further observed:
"It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as will be tried along with the already arraigned accused".
8. In view of the decisions referred to above the lower court should not have exercised the powers under S. 319 without recording the evidence. It is unfortunate to note that the learned Special Judge passed the impugned order without understanding the scope of S. 319 of the Crl. P.C. and against the recent decision of the Apex Court. In the absence of evidence and also in view of the report filed under S. 173(8) of the Crl. P.C., the lower court ought not to have impleaded the petitioner as an accused in the case. There were no compelling circumstances for taking cognizance against the petitioner.
For the reasons stated above it has to be held that the impugned order is illegal and unsustainable. The revision is therefore allowed. The order impleading the petitioner as the 4th accused in C.C. No. 2/99 is set aside. But I make it clear that if it comes in evidence during the trial of this case that the petitioner is also involved in the crime, the lower court is at liberty to proceed against the petitioner in accordance with law.