Madhya Pradesh High Court
Ramesh Singh vs The State Of Madhya Pradesh Thr on 25 May, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
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Criminal Revision No.1145/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No.1145/2016
Ramesh Singh & Another
Versus
The State of M.P. & Others
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Shri Rakesh Kumar Sharma, learned counsel for the
applicants.
Shri A.S.Yadav, learned Panel Lawyer for the
respondent No.1/State.
Shri S.K.Tiwari, learned counsel for the respondent
No.2.
Shri Anshuman Dudawat, learned counsel for the
respondent No.3.
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ORDER
(25.05.2017) This criminal revision has been preferred by the applicants under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the order dated 14.10.2016 passed by 1st Additional Sessions Judge, Guna in Sessions Trial No.331/2014, whereby the application filed by the co-accused Sunil under Section 319 of Cr.P.C. has been allowed and it was directed that the applicants may be summoned as an accused.
2. The brief facts of the case are that on 31.02.2011 at about 9 o'clock at night, complainant Brijendra Singh Sikarwar was at the office of Congress
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Criminal Revision No.1145/2016 alongwith his brother Dharmendra, at the same time accused persons Ramesh Raghuvanshi, Sonu alias Lancha Raghuvanshi, Deepak, Dilip, Sukku Sardar, Sunil Pal, Satendra Singh alias Sukku Raghuvanshi, Rakesh Jatav, Deena Raghuvanshi, Sonu Jaat and Jeetu Raghuvanshi armed with lathi, Farsa and Saria came there and they assaulted the complainant and others by which they sustained injuries. The incident was reported to Police Station Aron, District Guna and F.I.R. bearing Crime No. 106/11 under Section 147, 148, 294, 323, 506B and 307 read with Section 149 of IPC has been registered against the accused persons. After investigation, the police filed the charge-sheet against the co-accused persons except the applicants and it was mentioned in the charge-sheet that the investigation as regards the applicants Ramesh Raghuvanshi and Dilip Raghuvanshi is still going on. Thereafter, charges have been framed against the co-accused persons and the trial Court recorded the statements of twenty prosecution witnesses. After examination of the above witnesses, the co-accused Sunil has moved an application under Section 319 of Cr.P.C. for impleading the applicants as an accused in the case. This application was allowed by the impugned order and the trial Court directed that the applicants be arrayed as an accused in the case and they be summoned by notice. Being aggrieved by this order, this present revision has been filed.
3. Learned counsel for the applicants submitted
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Criminal Revision No.1145/2016 that during the investigation, the police did not find any evidence against the applicants. Looking to the facts and circumstances of the case and evidence adduced by the prosecution, there is no legal clinching and positive evidence to connect the applicants with the alleged crime. Apart from it, no opportunity of hearing has been given to the applicants before deciding the application. In these circumstances, prayed for setting aside the impugned order.
4. Per contra, learned counsel for the respondents No.1, 2 and 3 have opposed the revision application and supported the impugned order and prayed for its rejection.
5. Having considered the submissions made by the learned counsel for the parties and on perusal of the record, it appears that during the trial, injured witnesses Brijendra Rajpoot (PW-1), Arun Pratap (PW-3) and Rajesh Tomar (PW-6) has categorically stated that in the incident dated 31.02.2011 the applicants/accused was also accompanied with the co-accused persons and they were present on the spot and they participated in the crime with the other co-accused persons. The same statements were given by them during the investigation and the names of the applicants are also mentioned in the F.I.R. In these circumstances, it cannot be said that no evidence or material is available on record to implead the applicants as accused persons. After investigation, the police reached to the conclusion that the applicants are absconded and the investigation under Section
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Criminal Revision No.1145/2016 173(8) of Cr.P.C. has been pending against the applicants. It is not a case where the police dropped the matter against the applicants.
6. In the case of Mangilal vs. State of Madhya Pradesh, 2016(2) Cr.L.R. [M.P./C.G.] 519, this court observed that:-
7. The object of the provision of Section 319 of Cr.P.C is that real culprit should not get away unpunished. It is based on the doctrine of judex damnatur cum noces absolvitur (Judge is condemned when guilty is acquitted). The learned lower Court has considered the evidence and material against the accused in accordance with the directions and interpretation of the Constitution Bench of the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92, in which it is held that power under Section 319 of the Cr.P.C. can be exercised at any time after commencement of the Court inquiry into an offence, i.e. which commences before the Court with filing of the charge- sheet or the complaint. Further, it is also held that word "evidence " for the purpose of exercising power under Section 319 Cr.P.C. to add the accused has to be broadly understood and not literally as evidence brought during a trial. It includes oral or documentary evidence adduced before the Court during trial, and apart from such evidence, any material coming before the Court during trial after taking of cognizance of offence and during inquiry by the Court before commencement of trial, may not be evidence stricto sensu; but can be utilized to corroborate evidence recorded in the Court after commencement of trial and for exercising power under Section 319 of Cr.P.C.
7. Taking note of the aforesaid reproduced portion
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Criminal Revision No.1145/2016 of the judgment and the legal position, learned lower Court has rightly come to the conclusion that prima facie sufficient material is available against the applicants to implead them as accused in the present case.
8. So far as next contentions of the learned counsel for the applicant regarding not giving opportunity of hearing before passing the impugned order is concerned, the applicants have no legal right to be given an opportunity of hearing before passing such order. As no notices of hearing are given to the accused persons when they are summoned and on taking cognizance on a charge-sheet or complaint, the applicants would have a right to defend themselves only after their appearance in the Court. Similarly, the applicants have no right to be heard before deciding the application under Section 319 of Cr.P.C.. Hence, the aforesaid contention has no legal impact in the case.
9. In the case of Jogendra Yadav and Others vs. State of Bihar and Another, 2015 (9) SCC 244, the Hon'ble Supreme Court held that :-
There is a material difference between an accused since inception and an accused who has been added as such under Section 319 Cr.P.C.. An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 Cr.P.C., is necessarily heard before being so added. Often he gets a further hearing if he challenges the summoning order before the High Court. It seems incongruous and indeed anomalous if the two sections are
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Criminal Revision No.1145/2016 construed to mean that a person who is added as an accused by the Court after considering the evidence against him can avail remedy of discharge on the ground that there is no sufficient material against him. Moreover, it is settled that the extraordinary power under Section 319 Cr.P.C. can be exercised only if very strong and cogent evidence occurs against a person form the evidence led before the court, which is higher than the standard of proof employed for framing a charge against an accused.
10. On the basis of the aforesaid discussions, this Court finds that there is a sufficient evidence and material to presume that the applicants have also committed offence for which they could be tried together with the accused persons for the aforesaid offences, therefore, the impugned order passed by the learned 1st Additional Sessions Judge, Guna for summoning the applicants is hereby affirmed and the present revision petition is dismissed being devoid of merits.
(S.K.Awasthi) Judge AK/-