Madhya Pradesh High Court
Ramsevak Mishra vs The State Of Madhya Pradesh on 11 September, 2015
Author: Jarat Kumar Jain
Bench: Jarat Kumar Jain
-: 1:- Criminal Revision No.676 of 2014.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Jarat Kumar Jain )
Misc. Criminal Case No.676 of 2014
Ramsevak Mishra s/o Aditya Prasad Mishra and another
VERSUS
State of Madhya Pradesh and 7 others
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Shri V.P.Saraf, learned counsel for the petitioner.
Smt. Mamta Shandilya, learned Deputy Govt. Advocate for
the Non-applicant No.1/State.
Shri D.S.Patel, learned counsel for the Non-applicant No.2.
None for the Non-applicants No.3 to 8, though served.
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O R D E R
( Passed on this 11th day of September, 2015 ) THIS revision is filed under Section 397/401 of the Code of Criminal Procedure [for short "the Act"] against the order dated 20.05.2014 passed by 2nd ASJ, Shujalpur, District Shajapur in S.T.No.206/2012, whereby an application under Section 319 of the Code was allowed.
[2] Brief facts of this case are that Sumer Singh made the complaint at Police Station Kalapipal, District Shajapur stating that the Non-applicant No.2 Narbada Prasad by impersonation assured that he is Nanuram, who is owner of the land and has executed a sale-deed in favour of Sumer Singh. The said sale-deed was drafted by applicant No.2 -
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Devi Singh Mewada, Advocate and the then Sub Registrar applicant No.1 had registered the sale-deed. On this basis Crime No.22/2012 for the offences under Sections 420, 467 and 468 of IPC and under Section 82 of the Registration Act has been registered and after investigation, final report has been filed against the Non-applicants No.2 to 8 and the applicants No.1 and 2 were figured as witness. After examination of 19 prosecution witnesses, including the applicant No.1 as PW-2 and applicant No.2 as PW-3, co- accused Narbada Prasad (Non-applicant No.2) has filed an application under Section 319 of the Code stating that without the help of applicants sale-deed cannot be executed and registered. Therefore, applicants be arraigned as accused. Learned ASJ after hearing the parties vide order dated 20.05.2014 allowed the application and directed to issue the summons against the applicants. Being aggrieved with this order, the applicants have filed this revision.
[3] Learned counsel for the applicants submits that at the relevant time the applicant No.1 was Sub Registrar; whereas the applicant No.2 is practicing lawyer. Non- applicant No.2 Narbada Prasad has produced the forged document of his identity and on that basis applicant No.2 has drafted the sale-deed and applicant No.1 in discharge of his official duties after ascertaining the identity, registered the sale-deed. Complainant Sumer Singh in his report has not mentioned that the applicants were involved in the crime. After registration of the sale-deed, applicant No.1 had received a complaint (Annexure-P/3) that Non-applicant
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No.2 has executed the sale-deed by impersonation. Therefore, applicant No.1 immediately sent a written complaint to Police Station Kalapipal along with the documents and copy of the report was sent to Collector, Shajapur and District Registrar, Shajapur. In such circumstances the applicants were figured as "prosecution witnesses" and they have been examined and cross- examined. There is no iota of evidence that the applicants were involved in the crime. In the impugned order, learned ASJ without any material gave a finding that at the time of registration of the sale-deed the applicants having knowledge that the Non-applicant No.2 is not Nanuram. Learned ASJ has failed to appreciate that the Court should not pass order under Section 319 of the Code unless a higher standard of evidence for the purpose of forming an opinion to summon a person is available. In extraordinary cases such jurisdiction should be invoked sparingly. For this purpose placed reliance on the judgment of this Court in the case of Rajendra Singh v/s State of M.P. [I.L.R. (2014) MP 2709].
[4] Learned counsel for the applicants further submits that in the present case there is no allegations against the applicants. Therefore, to issue a summon against the applicants is an abuse of process of the Court as held by Gwalior Bench of this Court in the case of Naresh Kumar Sharma v/s State of M.P. [Misc. Criminal Case No.5387 of 2007 - decided on 20.09.2007].
[5] On the other hand, learned Deputy Govt. Advocate for the Non-applicant No.1/State supports the
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impugned order. Whereas, learned counsel for the Non- applicant No.2 drew my attention towards cross-examination of applicants and tried to convince that the applicants have not seen the original documents of identification of Narbada Prasad and thus, it is rightly held by the Trial Court that the applicants have committed the crime in conspiracy with other co-accused. Thus, they pray for dismissal of the revision.
[6] After hearing learned counsel for the parties, perused the record.
[7] In the present case, Sumer Singh is the complainant who is victim of this incident and at his instance offence has been registered by the Police. Sumer Singh in his complaint has not alleged that the applicants were involved in the crime. During investigation, no evidence was found against the applicants, therefore, final report has not been filed against them. Applicants have been figured as prosecution witnesses and after recording of their evidence on oath, only on the basis of the fact disclosed in the cross- examination that they have not insisted for producing the original documents of identification of Non-applicant No.2 Narbada Prasad, it is not justified to implead them invoking the jurisdiction under Section 319 of the Code as accused in this case.
[8] It is very strange that the prosecution has not filed any application under Section 319 of the Code; whereas co- accused Non-applicant No.2 has filed the application and on this basis learned ASJ has allowed the application and
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passed the impugned order for summoning the applicants.
[9] It is settled law that the power to summon additional accused is an extraordinary jurisdiction and, therefore, it should be invoked sparingly and the Court should not pass the order under Section 319 of the Code unless a higher standard of evidence for the purpose of forming an opinion to summon a person is available. In the present case, there is no prima-facie evidence against the applicants that they are involved in the crime. Learned ASJ in the impugned order mentioned that the applicants have knowledge that Non-applicant No.2 by impersonation executed a sale-deed in the name of Nanuram but the learned ASJ has not mentioned the basis of forming this opinion.
[10] In view of the above, I am of the considered view that the learned ASJ has committed an error of law in allowing the application under Section 319 of the Code. Thus, the revision is allowed. The impugned order is hereby set-aside. Copy of the order be sent immediately to the Trial Court for compliance.
[ JARAT KUMAR JAIN ] JUDGE Sharma AK/*