Madhya Pradesh High Court
Ramesh Agarwal vs Mukesh Jain on 7 February, 2017
1
M.Cr.C.No.13702/2015
(Ramesh Agarwal v. Mukesh Jain & Ano.)
07/02/2017
Shri Ankur Modi, counsel for the applicant.
Shri Dharmendra Rishishwar, counsel for
respondent no.1
Shri Girdhari Singh Chouhan, Public Prosecutor for the respondent no.2/State.
The petition under Section 482 of Cr.P.C. has been filed against the order dated 12-12-2014 passed by IV Additional Sessions Judge, Bhind in Cr.R. No. 209/14 by which the order dated 11-9- 2014 passed by J.M.F.C. Bhind in Complaint case No. 485/2010 was set aside and the matter was remanded back to decide the same afresh. Thereafter, by order dated 28-4-2015, the Magistrate, took cognizance of the offence against the applicant. By this petition, both the orders i.e., 12-12-2014 and 28-4-2015 have been challenged. As the order dated 28-4-2015 is consequential order, therefore, the applicant is permitted to challenge both the orders by filing a singular petition.
The facts necessary for the disposal of this petition in short are that the respondent no. 2 is facing trial for offences punishable under Section 473 of I.P.C. During the pendency of the trial, the respondent no.2 filed an application under Section 319 of Cr.P.C. for summoning the applicant and other persons as additional accused. The said application was rejected by the Magistrate by order 2 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) dated 11-9-2014. Being aggrieved by the order of the Magistrate, the respondent no. 2 filed a criminal revision without making the applicant and other persons as respondents. The Revisional Court also without affording an opportunity of hearing to the applicant and other proposed accused persons, decided the revision and set aside the order of the Magistrate and remanded the case back with a direction to decide the question afresh.
The Magistrate by order dated 28-4-2015 allowed the application merely holding that as the matter has been remanded back therefore in the light of the observations made by the Revisional Court, the application under Section 319 of Cr.P.C. is allowed and the applicant and other persons were summoned as additional accused.
In the present case, admittedly, the application filed under Section 319 of Cr.P.C. was rejected therefore, a right had accrued in favor of the applicant and other similarly situated persons of being heard by the Revisional Court before setting aside the order of the Magistrate. Neither the applicant nor other similarly situated persons were made respondents in the Criminal Revision and the Revisional Court also did not issue any notice to the applicant and without giving any opportunity of hearing, set aside the order of the Magistrate.
The Supreme Court in the case of Mohit @ Sonu and another Vs. State of U.P. and another 3 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) reported in (2013) 7 SCC 789 has held as under:-
"33. The second question that needs consideration is as to whether the High Court exercising its revisional jurisdiction or inherent jurisdiction under Section 482 Cr.P.C., while considering the legality and propriety of the order passed under Section 319 of Cr.P.C. is required to give notice and opportunity of hearing to the person in whose favour some right accrued by virtue of order passed by the trial court. In other words, whether it would be justified for the High Court to entertain a petition under Section 482 of Cr.P.C. and pass order to the prejudice of the accused or other person (the appellants herein) without giving notice and opportunity of hearing to them.
34. Indisputably, a valuable right accrued to the appellants by reason of the order passed by the Sessions Court refusing to issue summons on the ground that no prima facie case has been made out on the basis of evidence brought on record. As discussed hereinabove, when the Sessions Court order has been challenged, then it was incumbent upon the revisional court to give notice and opportunity of hearing as contemplated under sub-section (2) of Section 401 of Cr.P.C. In our considered opinion, there is no reason why the same principle should not be applied in a case where such orders are challenged in the High Court under Section 482 of Cr.P.C.
35. Recently, a three-Judge Bench of this Court in the case of Manharibhai Muljibhai Kakadia and Another v. Shaileshbhai Mohanbhai Patel and Others (2012) 10 SCC 517 considered the question as to whether in a case where an order of the Magistrate dismissing the complaint under Section 203 of Cr.P.C. at the stage under Section 200, the accused or a person who is suspected to have committed the crime is entitled to hearing by the revisional court. After considering all the 4 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) earlier decisions, in the case of P. Sundarrajan v. R. Vidya Sekar (2004) 13 SCC 472, Raghu Raj Singh Rousha v. Shivam Sundaram Promotors (P) Ltd. (2009) 2 SCC 363 and A.N.Santhanam v. K. Elangovan (2012) 12 SCC 321, this Court held as under:-
"53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have 5 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.
36. The same question came up for consideration before different High Courts some of which we would like to refer hereinbelow.
36.1 In Sayeed Bhagat v. State of Bihar 1999 Crl.L.J.4040 (PAT), a Bench of the Patna High Court noticed the facts of the case where an application was filed in a criminal case under Section 319 of Cr.P.C. to summon the remaining accused persons who were named by the witnesses. The Magistrate refused the said prayer mainly for want of sufficient evidence. The said order was challenged in revision by the complainant. The revisional court set aside the order of the Magistrate without hearing the petitioners against whom prayer was made for issuance of summons. When the matter came up before the High Court, the Bench held as under:- (Cri LJ p. 4041, para 8) "8. In the instant case also though the jurisdiction of the Court to summon a person under Section 319 of the Cr.P.C. cannot be questioned, the revisional Court, in my view should have heard the petitioners before passing the impugned order because the same has prejudiced them."
36.2 In a similar case in Satish Chandra 6 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) Dey v. State of Jharkhand & Anr. 2008 (2) AIR Jhar R 330, the order of Sessions Judge was challenged in the High Court under Section 482 of Cr.P.C. on the ground inter alia that the Sessions Judge directed the Magistrate to summon the petitioner to face trial along with other accused though the trial court had refused to exercise its jurisdiction to summon the petitioner to face trial. The question raised before the High Court was that the revisional court has erred in law in passing such order without giving opportunity of hearing to the petitioner. Allowing the said petition, the High Court held as under :-
"10. Thus it is evidently clear from the relevant provision of law that no order to the prejudice of an accused or any other person can be made unless the said accused or the said persons have been given an opportunity of being heard.
11. In the instant case also learned Sessions Judge in absence of the petitioner has passed the impugned order whereby he directed the trial Court to implead the petitioner as an accused in the proceeding which in view of the provision as contained in Sections 399/401/401(2) of the Code of Criminal Procedure is illegal.
12. In the result, this application is allowed and the impugned order dated 23.6.2006 is set aside and the case is remanded to the learned Sessions Judge, Bokaro for hearing afresh after giving due notice to the parties so that the same may be disposed of in accordance with law."
Thus, the order of the Revisional Court is bad 7 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) in law because of said reason. However, as the Revisional Court had merely remanded the case back, therefore, what would be effect of non- affording of opportunity of hearing by the Revisional Court will be considered only after considering the legality and propriety of the order dated 28-4-2015.
After the matter was remanded back, the Magistrate by order dated 28-4-2015 held that as the matter has been remanded back, therefore, it has no option but to issue summons to the applicant and similarly situated persons under Section 319 of Cr.P.C. In the considered opinion of this Court, the reasoning assigned by the Magistrate for issuing summons against the applicant and other similarly situated persons does not appear to be correct. It is well established principle of law that the Superior Court must avoid giving any finding on a particular issue so as to be avoid a situation like the present one, where the Magistrate has issued summons merely in order to maintain Judicial decorum. Even otherwise, the Revisional Court had not given finding with regard to the fact that whether there is sufficient material available to record conviction.
The Supreme Court in the case of Michael Machado & Anr. vs. CBI & Anr. reported in (2000) 3 SCC 262 has held as under :-
"11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some 8 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. 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 well be tried along with the already arraigned accused.
12. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.
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 reexamined. The whole proceedings must 9 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) be recommenced 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."
The Supreme Court in the case of Hardeep Singh v. State of Punjab reported in (2014) 3 SCC 92 has held as under:-
"105. Power under Section 319 CrPC 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 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 10 M.Cr.C.No.13702/2015 (Ramesh Agarwal v. Mukesh Jain & Ano.) 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."
Thus, it is clear from the facts of the case, the Magistrate had not applied its mind to the facts of the case, so as to come to a conclusion that whether the summoning of additional accused in exercise of power under Section 319 of Cr.P.C. would be desirable or not and whether there is any possibility of their conviction or not? Thus, in absence of such a finding by the Magistrate, this Court is of the considered opinion that the order dated 28-4-2015 is bad in law and therefore it is set aside.
Now, the question would arise that whether this Court after setting aside the order dated 28-4- 2015 should send the case back to the Magistrate for decision on the application under Section 319 of Cr.P.C. afresh or not?
11 M.Cr.C.No.13702/2015(Ramesh Agarwal v. Mukesh Jain & Ano.) During arguments, it was informed that the respondent no.2 who was facing trial has been acquitted. Thus, it is clear that at this stage no case is pending against the co-accused. As the operation of the order dated 28-4-2015 passed by the Magistrate was stayed by this Court by order dated 1-3-2016, therefore, no proceedings were taken up before the Trial Court. In the meanwhile, the co- accused has been acquitted and now no proceedings are pending. Section 319 of Cr.P.C. 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.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;12 M.Cr.C.No.13702/2015
(Ramesh Agarwal v. Mukesh Jain & Ano.)
(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."
Thus, from the plain reading of Section 319 of Cr.P.C., it is clear that additional accused could be tried together with the accused. Here no trial is pending and the co-accused has already been acquitted. Thus, the present applicant and other similarly situated persons cannot be tried together with the accused because of his acquittal. Under these circumstances, it would not be proper to remand the case back to the Magistrate to decide the application under Section 319 of Cr.P.C. afresh because in case the applicant and other similarly situated persons are summoned as additional accused, then they will not be tried together with the accused.
Thus, the orders dated 12-12-2014 passed by the IVth Additional Sessions Judge, Bhind in Criminal Revision No. 209/14 and order dated 28-4- 2015 passed by A.C.J.M., Bhind in criminal case no. 485/2010 are hereby quashed.
The Petition succeeds and hereby allowed.
(G.S.Ahluwalia)
(ra) Judge