Bombay High Court
Abdul Wahab Abdul Razzak Malik And ... vs The State Of Maharashtra And Anr on 4 October, 2018
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1783 OF 2017
1. Abdul Wahab Abdul Razzak Malik
Age 60 years, Occ. Business
R/o. 308, Shani Peth, Jalgaon
Tal. and district Jalgaon
2. Faisal Abdul Gaffar Malik
Age 37 years, Occ. Business
and Agriculture
R/o. As above
3. Abdul Rahim Razzak Malik
Age 54 years, Occ. Business
R/o. As above.
4. Sharik @ Shakir Saeed Malik
Age 23 years, Occ. Education
R/o. As above ...Petitioners
Versus
1. The State of Maharashtra
Investigating officer of
Jalgaon City Police Station
Jalgaon, Tal. and district Jalgaon
(Copies to be served for R. No.1
to Public Prosecutor, High Court
of Bombay, Bench at Aurangabad)
2. Shivcharan Kanhiyalal Dhandore
Age 70 years, Occ. Agriculture
R/o. Shrushi Niwas, Brahmanwadi
Baliram Peth, Jalgaon
Tal. and district Jalgaon ...Respondents
.....
Mr. S.P. Brahme, advocate for the petitioner
Mr. P.K. Lakhotiya A.P.P. for respondent No.1-State
Mr. R.R. Mantri h/f Mr. R.S. Shinde, advocate for respondent No. 2 .....
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CORAM : V. K. JADHAV, J.
Date of Reserving
the Order :26.09.2018
Date of pronouncing
the Order : 04.10.2018
O R D E R :-
1. By this petition, the petitioners are challenging the order dated 12.12.2017 passed by learned Special Judge (Additional Sessions Judge, Jalgaon) below Exh.80 in Special Case No. 5 of 2013.
2. According to the petitioners, respondent No.2 herein is an accused in crime No. 87 of 2011 registered with Jalgaon City Police Station, Jalgaon for the offences punishable under sections 307, 324, 504, 506, 143, 147, 148 of I.P.C. and Section 4/25 of Arms Act and under Section 37 r.w. 135 of Maharashtra Police Act. Two successive criminal applications bearing No. 2042 of 2012 and 376 of 2014 filed by respondent No.2 for quashing of F.I.R. came to be rejected by this Court. Respondent No.2 has criminal antecedents. On 24.7.2011, respondent No.2 lodged a false complaint bearing No. 88 of 2011 against various persons, including the petitioners. In the said complaint, the concerned Investigating Officer has conducted investigation. The statements of various persons, including the present petitioners came to be recorded. In the said statements, it transpired that the petitioners were not present when the alleged ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -3- offence was committed at about 6.30 p.m. on 24.7.2011. The statements of the petitioners were corroborated by the statements of other persons. Petitioner No.1 at the relevant time was at the construction site of the school building alongwith other witnesses, petitioner No.2 had been to village Kusumba, which is 8 to 9 kilometers away from the spot of incident, petitioner No.3 was confined to home due to his obesity and petitioner No.4 was in tuition class.
a) After due investigation, the Investigating Officer submitted charge sheet against 11 accused persons in which names of the present petitioners were not included. Respondent No.2 filed application Exh.11 to add the charge under Section 397 of I.P.C.
against original accused persons. However, the said application was rejected. Similar application was filed at Exh.21, however, the same was also rejected. The present case was treated and numbered as Special Case No.5 of 2013 and at present the learned Special Judge is trying the case.
b) The examination in chief of respondent No.2 was recorded at Exh.17. Respondent filed an application Exh.80 under Section 319 of Cr.P.C. On 12.2.2016 learned Judge issued notices to the preset petitioners. The petitioners appeared in the matter and contested the application. However, by order dated 12.12.2017 the application ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -4- Exh.80 came to be allowed. Hence, this writ petition.
3. Learned counsel for the petitioners submit that the impugned order is an abuse of process of law and is without jurisdiction. The learned Special Judge while passing the impugned order has overlooked the investigation papers, more particularly the statement of the petitioners herein and other witnesses, which do not make out any case against the petitioners. There is no incriminating material on record to hold that the petitioners were also guilty of the offence in question. Learned Judge while invoking the powers under Section 319 of C.P.C. has committed undue haste in entertaining the application Exh.80 when there is no incriminating material on record to hold that the petitioners are guilty of the offences as alleged and, even complete evidence of witness No.1 was also not recorded. Learned counsel submits that the learned Judge failed to appreciate that the investigation into the involvement of petitioners in the crime was conducted. From the statements of witnesses it transpired that the petitioners were not present at the relevant time. The petitioners were present at different places which is evident from the statements of the other witnesses. The learned Judge has not taken into consideration the antecedents of respondent No.2. Learned counsel for the petitioners thus submits that the petition may be allowed. ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 :::
crwp1783.17 -5- Learned counsel for the petitioners in order to substantiate his submissions, placed reliance on the judgment of Supreme court in the case of Brijendra Singh and others vs. State of Rajasthan, reported in 2017 AIR(SC) 2839.
4. Learned counsel for respondent No.2 submits that while filing the complaint of Crime No. 88 of 2011, respondent No.2 has specifically mentioned names of the present petitioners in the said complaint alongwith th co-accused. Even during the course of investigation, more particularly, in the first remand report dated 25.7.2011, the names of petitioners were there. Respondent No.2 in his statement has clearly stated about the role played by the petitioners. The learned Sessions Judge has rightly relied upon the judgment of Supreme Court in the case of Hardeep Singh vs. State of Punjab, reported in (2014) 3 SCC 92 and come to the conclusion that the petitioners be tried alongwith the other accused. The contention of the petitioners that they were not present at the time of incident at the spot is concerned, not a whisper of such defence was putforth before the learned Sessions Judge by the petitioners. The power under Section 319 of Cr.P.C. can be exercised at the stage of completion of examination-in-chief and the court is not required to wait till the said evidence is tested on cross examination and it is the satisfaction of the Court which can be gathered from the reasons ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -6- recorded by the court. The Supreme Court in the aforesaid cited case, has also held that a person not named in the F.I.R. or a person though named in the F.I.R though has not been charge sheeted or a person who has been discharged can be summoned under Section 319 of Cr.P.C. provided, from the evidence it appears that such person can be tried alongwith the accused already facing the trial. Learned counsel for respondent No.2 submits that the petition may be dismissed.
Learned counsel for respondent No.2, in order to substantiate his submissions, placed reliance on the following cases:-
i) Haryana Financial Corporation vs. Jagdamba Oil Mills, reported in 2002 AIR (SC) 834;
ii) Judgment of this Court, dated 16.8.2016 in criminal writ petition No. 444 of 2016.
5. I have also heard the learned A.P.P. for respondent No.1 State.
6. Section 319 of Criminal Procedure Code 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.::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 :::
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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 afresh, and the 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."
7. Section 319 of Cr.P.C. empowers the Court to add any person not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried. Plain reading of sub-section (1) of Section 319 of Cr.P.C. makes it clear that the persons appearing to be guilty of offence can be proceeded against, if in the course of any inquiry into or trial of, an offence, it appears from the evidence that such person has also committed offence and deserves to be tried with the other accused. It is well settled that the ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -8- entire effort as contemplated under Section 319 of Cr.P.C. is not allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial. This is an extraordinary power and should be used by the Court very sparingly and only if compelling reasons exist for taking cognizance. The power is discretionary and such discretion must be exercised judiciously having regard to the facts and circumstances of the case.
8. In the case of Hardeep Singh vs. State of Punjab and others (supra), the Supreme Court has decided the reference on the scope of extent of powers of the Court under criminal justice system to arraign any person as an accused during the course of enquiry or trial as contemplated under Section 319 of Cr.P.C. In the said reference question No. V is answered by the Bench as under:-
"Q. V. Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?
A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -9- accused already facing trial. However, in so far as an accused who has been discharged is concerned, the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
9. In the case of Brijendra Singh and others Vs. State of Rajasthan reported in 2017 DGLS (SC) 479, the Supreme Court recapitulated some of the principles enunciated in Hardeep Singh's case (supra). The apex court in Paragraph No. 19 of the judgment has observed thus:
"19. In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word 'evidence' used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any persons on the basis of evidence adduced before the Court. The word 'evidence' has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -10- obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that 'evidence' under Section 319 Cr.P.C. could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross- examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence."
The supreme court has, thereafter, observed that the moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 of Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the F.I.R. but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh's case and answered in the following manner. The Supreme Court, in this case, referred Paragraph Nos. 95, 105 and 106 of the Hardeep Singh's case which are reproduced here-in-below:
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two- Judge Bench of this Court in Vikas vs. State of ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -11- Rajasthan [(2014) 3 SCC 321], held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons."
"105. Power under Section 319 CrPC is a discretionary and an extraordinary 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 required 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 CrPC. In Section 319 CrPC the purpose of providing if "it appears from ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -12- 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."
(emphasis supplied) The supreme court also further observed that, in the facts of the said case in Paragraph No. 23 of the judgment, the Supreme Court has made the following observations:
"23. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were name din the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -13- in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct."
10. In the instant case, though the names of the petitioners were mentioned in the F.I.R., after investigation the concerned P.S. has submitted the charge sheet against 11 accused persons, in which, the names of the petitioners are not included. The examination-in- chief of respondent no.2 was recorded at Exhibit-17 by the prosecution. The respondent no.2 has deposed about the incident in detail and specifically alleged the role played by the petitioners herein. The prosecution has accordingly filed an application Exhibit- 80 under Section 319 of Cr.P.C. By order dated 12.12.2017, the application Exhibit-80 came to be allowed by the learned Additional Sessions Judge, Jalgaon after giving an opportunity of being heard to the petitioners.
11. On careful perusal of the record and proceedings and particularly the annexure of this writ petition, it appears that during the investigation, the Investigating Officer on the basis of the statement of petitioner no.1 and on the basis of the statement of the contractor to whom the work of the construction of school was alloted, the engineer, who was supervising the said construction work and the driver of petitioner no.1 concluded that at the relevant time ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -14- petitioner no.1 was at the construction site of the school building. It also appears that on the basis of the statement of petitioner no. 2 herein, and the statement of his partner in the real state business. The mediator of the purchase transaction and also the agent, who has brought the purchaser concluded that the petitioner had been to village Kusumba in connection with the sale transaction of the plot, which is 8 to 9 kilometers away from the spot of incident. The Investigating Officer on the basis of the statement of petitioner no.3 and his daughter concluded that petitioner no.3 was confined to home due to his obesity and on the basis of the statement of petitioner no.4, who runs the coaching class and one student who happened to be the best friend of petitioner no.4, who was used to attend classes of the said coaching class concluded that petitioner no.4 was in the tuition class. The Investigating Officer, thus, deleted the names of these petitioners and the charge sheet has been filed against the other accused persons. Even though, these statements is a part of the record, nothing has been mentioned the charge-sheet about non-sending the charge-sheet against the petitioners, though their names are mentioned in the FIR.
12. On careful perusal of the examination-in-chief of respondent no.2, it appears that respondent no.2 has specifically deposed about the presence of the petitioners at the time of incident with a specific role ascribed to each of them. He has also alleged that the assailants ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -15- were holding swords and sticks. He has also alleged that the co- accused Syeed Malik, Nadeem Malik, Nakta Imran and Altamas were holding swords and other assailants were holding sticks, all of them came in front of his house and abused him on caste basis. He has specifically alleged that the assailants broken the glasses and doors of his car by means of swords and sticks and also caused damage to his house. He has witnessed the said incident through the chanel gate and windows of his house. Thereafter, he has further alleged that the assailants went towards the house of his son-in-law, broken the cupboard and other household articles from his house and took away the gold ear tops, silver strips and cash amount of Rs.20,000/- from the said house.
13. In the case of Brijendra Singh and others v/s State of Rajasthan (supra), in the facts of the said case, the Supreme Court has observed that on the basis of material collected during the investigation which has been referred above, the Investigating Officer found that the appellants were in Jaipur city, when the incident took place in Kanaur, at a distance of 175 kms. The Supreme Court has further observed that the complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 of Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -16- the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.
14. In the instant case, the petitioners have specifically raised the defence of alibi. On the basis of statement of the petitioners themselves and also on the basis of statement of the persons, who are closely related to the petitioners as a relative, business relations etc., the Investigating Officer found that the presence of the petitioners at the place of occurrence doubtful. There is no documentary or other evidence collected during the investigation. In my considered opinion, the petitioners have to substantiate the defence of alibi during the course of investigation. At this stage, there is no documentary and clinching evidence available so as to form opinion prima facie that the petitioners plea of alibi is correct.
15. It is not appropriate to make any further observation because trial is yet to be concluded. In my considered opinion, there exist compelling circumstances to exercise the powers as provided under Section 319 of Cr.P.C. and the learned Judge of the trial Court has rightly exercised those powers. Prima facie, it appears that there is a case against the petitioners to invoke the powers under Section 319 ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 ::: crwp1783.17 -17- of Cr.P.C. In view of this, I do not find any error in the impugned order passed by the learned Additional Sessions Judge, Jalgaon, except the part of the observations made in Paragraph No.11 of the impugned order. The learned Additional Sessions Judge directed the Investigating Officer to submit the supplementary charge-sheet against the petitioners. However, the same is not the requirement of Section 319 of Cr.P.C. altogether. In terms of sub-section 4 clause (b) of Section 319 of Cr.P.C., the learned Judge of the trial Court may proceed as if such added person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. Except this modification in the impugned order, rest of the order of Exhibit-80 stands confirmed. Hence, the following order:
ORDER
1. The Criminal Writ Petition is hereby partly allowed.
2. The impugned order dated 12.12.2017 passed by the learned Additional Sessions Judge, Jalgaon below Exhibit-80 in Special Case No. 5 of 2013 is quashed and set aside to the extent directing the Investigating Officer to file the supplementary charge-sheet against the petitioners herein.
3. Rest of the impugned order stands confirmed.
4. Criminal Writ Petition is accordingly disposed of.
(V. K. JADHAV, J.) Sameer// ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:09 :::