Himachal Pradesh High Court
Jagat Kirti vs State Of H.P on 20 November, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 334 of 2018.
Reserved on: 15th November, 2018.
.
Date of Decision:20th November, 2018.
Jagat Kirti .....Petitioner.
Versus
State of H.P. ....Respondent.
Coram r
The Hon'ble Mr. Justice Sureshwar Thakur,
Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Virender Singh Chauhan, Advocate.
For the Respondent: Mr. Hemant Vaid, Additional.
Advocate General and Mr. Desh Raj Thakur, Additional Advocate General with Mr. Vikrant Chandel, Deputy Advocate General _______________________________________________________ Sureshwar Thakur, Judge.
The instant Criminal Revision Petition, stands, directed by the petitioner/accused, against, an order pronounced, on 14.06.2017, by the learned ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 2 Special Judge while exercising powers under Section 319 of the Cr.P.C.
2. Under the impugned orders, the .
accused/petitioner herein, is, ordered to be arrayed, as co-accused along with other accused, for, his committing offences constituted under Sections 120-B, 420, 467, 468, 471 of the IPC, and, under Section 13(2), of, the Prevention of Corruption Act.
3. Uncontrovertedly, the petitioner herein is a co-signatory, of, a false completion certificate issued, vis-a-vis, certain construction activities, (i) construction activities whereof stood subsequently concluded, by the committee of experts to be incomplete , (ii) and, in sequel whereof, wrongful loss stood alleged to be ensued, vis-a-vis, the State exchequer, and, wrongful gain stood alleged to be caused to the accused. The accused/petitioner herein, was, kept in column No.2, of, the report filed under Section 173 of the Cr.P.C.
4. The learned counsel appearing for the petitioner has contended with much vigour, that, the jurisdiction, exercised by the learned trial Court, under ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 3 Section 319 of the Cr.P.C., is, beyond the mandate thereof, given the learned trial Court while exercising the jurisdiction vested, under, Section 319 of the .
Cr.P.C., his, being enjoined, to, make an affirmative order thereon only, upon, (a) his alluding to the material on record, (b) and, material gathered by way of inquiry by the Court. He contends that the afore trite para meters of law rather being not borne in mind by the Court concerned, in, its making the impugned pronouncement, while, exercising the powers vested, under Section 319 of the Cr.P.C., (I) given the accused being hence included only in column No.2, of, the report filed under Section 173 of the Cr.P.C., by the Investigating Officer concerned, and, hence no incriminatory role being thereupon standing ascribed, vis-a-vis, him.
5. For determining, the efficacy of the aforesaid submission, it is imperative to bear in mind, the, verdict(s) recorded by the Hon'ble Apex Court rendered, in, a case titled as Dharam Pal and others vs. State of Haryana and another, reported in ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 4 (2014)3 SCC 306, the relevant paragraphs No.39, 40, 41 whereof stand extracted hereinafter:-
"39. This takes us to the next question as to .
whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 5 taken by the Magistrate and part cognizance being taken by the learned Session Judge.
40. In that view of the matter, we have no hesitation in agreeing with the views expressed in .
Kishun Singh's case {(1992)2 SCC 16} that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.
41. We are also unable to accept Mr. Dave's submission that the Session Court would have no alternative, but to wait till the stage under Section 319 Cr.P.C. was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Session."
and, in a case titled as Hardeep Singh vs. State of Punjab and others, reported in (2014)3 SCC 92, the relevant paragraphs No. 25, 26, 27, 28, 40, 44, 54, ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 6 55, 56, 57, 81, 85 whereof stand extracted hereinafter:-
"25. The stage of inquiry and trial upon cognizance being taken of an offence, has been .
considered by a large number of decisions of this Court and that it may be useful to extract the same hereunder for proper appreciation of the stage of invoking of the powers under Section 319 Cr.P.C. to understand the meaning that can be attributed to the word 'inquiry' and 'trial' as used under the Section.
26. In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, this Court held :
"...once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence."
27. The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-
sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g) Cr.P.C., which defines an inquiry as follows:
"2(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court."::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 7
28. In State of U.P. v. Lakshmi Brahman & Anr., AIR 1983 SC 439, this Court held that from the stage of filing of charge-sheet to ensuring the compliance of provision of Section 207 Cr.P.C., the court is only at the stage of inquiry and no trial can be said to have commenced. The above view has .
been held to be per incurium in Raj Kishore Prasad v. State of Bihar & Anr., AIR 1996 SC 1931, wherein this Court while observing that Section 319 (1) Cr.P.C. operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of Section 209 Cr.P.C., the court is neither at the stage of inquiry nor at the stage of trial. Even at the stage of ensuring compliance of Sections 207 and 208 Cr.P.C., it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the Magistrate is required to do is to make the case ready to be heard by the Court of Sessions.
29. Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. In Moly & Anr. v. State of Kerala, AIR 2004 SC 1890, this Court observed that though the word 'trial' is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry must always be a forerunner to the trial. A three-Judge Bench of this Court in The State of Bihar v. Ram Naresh Pandey & Anr., AIR 1957 SC 389 held:
"The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration."::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 8
(Emphasis added)
40. Even the word "course" occurring in Section 319 Cr.P.C., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers .
the entire wide range of the process of the pre-trial and the trial stage. The word "course" therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry upto the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word "course" ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time; duration and not a fixed point of time. (See: Commissioner of Income-tax, New Delhi (Now Rajasthan) v. M/s. East West Import & Export (P) Ltd. (Now known as Asian Distributors Ltd.) Jaipur, AIR 1989 SC 836).
44. No word in a statute has to be construed as surplusage. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the Statute. By construction, a provision should not be reduced to a "dead letter" or "useless lumber". An interpretation which renders a provision an otiose should be avoided otherwise it would mean that in enacting such a provision, the legislature was involved in "an exercise in futility" and the product came as a "purposeless piece" of legislation and that the provision had been enacted without any purpose and the entire exercise to enact such a provision was "most unwarranted besides being uncharitable." (Vide: Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC 1457; The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529; M.V. Elisabeth & Ors. v. Harwan Investment & Trading Pvt. Ltd. Hanoekar House, Swatontapeth, Vasco- De-Gama, Goa, AIR 1993 SC 1014; Sultana Begum v. Prem Chand Jain, AIR 1997 SC 1006; State of Bihar & Ors. etc.etc. v. Bihar Distillery Ltd. etc. etc., AIR 1997 SC 1511; Institute of Chartered Accountants of India v. M/s. Price Waterhouse & Anr., AIR 1998 SC 74; and The South Central Railway Employees Co- operative Credit Society ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 9 Employees Union, Secundrabad v. The Registrar of Co-operative Societies & Ors., AIR 1998 SC 703).
47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) .
Cr.P.C. can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 Cr.P.C., committal etc., which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance of Sections 207 and 208 Cr.P.C., and committing the matter if it is exclusively triable by Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 Cr.P.C. is forbidden, by express provision of Section 319 Cr.P.C., to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Sessions.
54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 10 the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Cr.P.C.
.
55. Accordingly, we hold that the court can exercise the power under Section 319 Cr.P.C. only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein above.
56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 Cr.P.C. i.e. provisions of Sections 200, 201, 202, etc. Cr.P.C. applicable in the case of Complaint Cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint Cases is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872, (hereinafter referred to as the 'Evidence Act') comes before the court. There does not seem to be any restriction in the provisions of Section 319 Cr.P.C. so as to preclude such evidence as coming before the court in Complaint Cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the Court, such evidence can be used only to corroborate the evidence recorded during the trial for the purpose of Section 319 Cr.P.C., if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 11 any difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded.
57. Thus, the application of the provisions of .
Section 319 Cr.P.C., at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 Cr.P.C. can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge sheet or any other person who might be an accomplice.
81. An inquiry can be conducted by the magistrate or court at any stage during the proceedings before the court. This power is preserved with the court and has to be read and understood accordingly. The outcome of any such exercise should not be an impediment in the speedy trial of the case. Though the facts so received by the magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 Cr.P.C. it is an information of complicity. Such material therefore, can be used even though not an evidence in stricto sensuo, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved.
85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial.
::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 12Wherein it stand candidly expostulated, that, (i) the jurisdiction bestowed, upon, the learned trial Court under Section 319 of the Cr.P.C., being exercisable, at .
any time, before the pronouncement, of, the judgement, (ii) and, even subsequent, to, assumption of cognizance, vis-a-vis, other co-accused, with whom the delinquent concerned, is, concerted to be added,
(iii) and, also when the Court hence arrives at the stage of making an inquiry, into, the validity of the incriminatory role, strived to be fastened, by the prosecution, against the delinquent concerned, (iii) whereat, it is incumbent upon, the court concerned, to, from the records available before it, dehors, the delinquent concerned being not included in the report filed, under, Section 173 of the Cr.P.C., hence, gather whether the delinquent concerned, alongwith, other co-accused, rather being amenable to face charge, whereagainst whom a report stands filed under Section 173 of the Cr.P.C. Consequently, even if, the name of the accused, is not, included in the charge sheet, whereas, his name is occurring in column No.2, and, when he uncontrovertedly, is, a co-signatory of a ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP 13 false completion certificate, in sequel whereto when wrongful loss, is, allegedly caused to the State exchequer, and, wrongful gain, is, allegedly caused to .
the co-accused, (iv) thereupon, the affirmative order as pronounced by the learned Special Judge, rather falls within the, parameters of law propounded by the Hon'ble Apex Court, in, verdicts referred supra.
7. For the foregoing reasons, there is no merit, in the instant petition and it is dismissed accordingly.
The order impugned before this Court is affirmed and maintained. The parties are directed to appear before the learned trial Court on 13 th December, 2018.
Records, if received, be sent back forthwith. All pending applications stand disposed of.
(Sureshwar Thakur) 20 th November, 2018. Judge.
(jai) ::: Downloaded on - 24/11/2018 22:56:22 :::HCHP