Uttarakhand High Court
Janak Singh vs State Of Uttarakhand And Another on 20 March, 2023
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Impleadment Application No. 4293 of 2020
in
Criminal Miscellaneous Application No. 1929 of 2018
Janak Singh ..... Applicant
Vs.
State of Uttarakhand and Another .....Respondents
Mr. Ravi Babulkar, Advocate for the Applicant
Mr. Pratiroop Pande, A.G.A. for the State/respondent no. 1
Mr. Vinod Sharma, Advocate for private respondent no. 2
Hon'ble Sharad Kumar Sharma, J. (Oral)
It is in the present pending C-482 application, whereby the present applicant has questioned the propriety of Criminal Case No. 346 of 2018, "State of Uttarakhand Vs. Janak Singh", whereby he has been summoned to be tried for the offences under Section 420, 467, 468 and 471 of I.P.C., which is as a consequence of registration of the FIR No. 03 of 2018, as it was got registered on 20.02.2018.
2. It's was that during the pendency of this C-482 application, one, Mr. Trepan Singh Rana, has sought himself to be impleaded in C-482 application by filing an Impleadment Application No. 4293 of 2020.
3. The learned counsel for the applicant-Trepan Singh Rana, in order to justify his impleadment, has submitted that impleadment would be a concept, which is available to be considered under the criminal law, when the Court are exercising its inherent powers under Section 482 of the Code of Criminal Procedure, or even otherwise, there cannot be any doubt with 2 regards to the ambit of the exercise of powers by the Court under Section 482, for the purposes of impleadment, only in relation to those persons who are likely to be affected by the outcome of the judgment, which may be rendered in criminal proceedings as against the accused person, who is being tried for the alleged offence.
4. The term 'impleadment' under the legal dictionary had defined that a person who has got a right to sue or prosecute a person by a course of law, he may be made as a party to the proceedings. In a Black's Law Dictionary, 6th Edition, the 'impleadment' means to bring (someone) into a suit as a new party, against whom there is an acquisition or a right which is to be adjudicated. The relevant definition of the Black Dictionary is extracted here under:
"1. To bring (someone) into a law suit; esp., to bring (a new party) into the action. Cf. Interplead. 2. To bring an action against; to accuse."
5. In Law Lexicon, in its Second Edition of 1997 as published by Y.V. Chandrachud, has yet again dealt with the definition as to what would the term "implead", means, it's a right to sue or to prosecute by course of law and the said definition has been extracted from Tomlins Law Dictionary. In fact it literally means to make one, a party to an action or a suit, that means to sue or prosecute a person by a course of law, the relevant definition is extracted here under:
"to sue or prosecute a person by course of law [s.32A, Drugs and Cosmetics Act]; to make a party [s. 114, Trade and Merchandise Marks Act]".
6. Before answering the question raised by the learned counsel for the applicant to the impleadment application, a detailed scrutiny of the FIR itself becomes necessary to be dealt 3 with by this Court, and it is being made exclusively for the purposes, as to how and in what chronology, the things have proceeded in order to direct the registration of the FIR being, being ultimately the FIR being no. 03 of 2018 dated 20.02.2018.
7. On reading the FIR, the following inferences could be drawn:-
i. That in relation to the work called as 'Mori Naitwad Sankri Motor Road' that is State Highway No. 48 from kilometre 1 to 26, whereby the contract was executed for metalling the road. A contract is said to have been executed in favour of the present applicant.
ii. Alleging thereto was in relation to a certain discrepancy in performance of the work and being dissatisfied with the nature of the work performed by the present applicant, a complaint was filed by "Rawai Ekta Manch".
iii. The "Rawai Ekta Manch", is said to have agitated a cause on the basis of their self inscribed process of inspection followed by them to assess the quality of work performed by the present applicant and the irregulation has committed by him. iv. On the basis of the report submitted by the "Rawai Ekta Manch", it was reported and alleged that the present applicant was instrumental in getting the contract, on the basis of a fraudulent experience certificate and due to which the public money was misutilized.
v. Taking cognizance to the same, the District Magistrate, Uttarkashi, through a committee, which was headed by the Sub- divisional Magistrate, had constituted it with the Executive Engineer, Rural Development Department and Executive Engineer, Irrigation Department, Purola to conduct an enquiry. vi. The Enquiry Committee thus constituted on the directions of the District Magistrate, has submitted a report being report through letter no. 1142/vk0ys0/fofo/k tkap/2017 dated 31.05.2017. vii. It's on this report submitted by the Committee thus constituted by the District Magistrate on 31.05.2017, the District Magistrate vide his correspondence no. 311/,l0ih0vks0-2017 dated 14.06.2017, on the basis of the report submitted by the Superintending Engineer, Public Works Department, and the copy of the same was also submitted to the Additional Chief Secretary, Public Works Department and as per the recommendations made by the said Committee, it was observed that the basis of grant of the contract to the present applicant since was on the basis of a fraudulent experience certificate and hence, the contract executed in his favour deserves to be cancelled.4
viii. It is based upon the genesis of the report from the report submitted by the "Rawai Ekta Manch" and ultimately, when it culminated into a report submitted by the Superintending Engineer, that the contract executed in favour of the present applicant was cancelled by the Executive Engineer vide his communication No. 3006/ih0,0 tkap-06/2017 dated 26.07.2017 and the security amount deposited by the contractor was forfeited. Consequently, the Contract No. 11/,l0b0-06/2016-17 dated 03.01.2017 was cancelled.
ix. Consequently, the Chief Engineer, the Head of the Department of the Public Works Department, vide his letter No. 2444/577,e0/ fo/kk;h oxZ /2017 dated 04.12.2017 had blacklisted the present applicant for a period of two years, debarring him to participate in any contract in process, and consequently, what would be more important in the instant case, that in accordance with the correspondence of the Chief Engineer No. 46/42 ifjokn fV0/2018 dated 11.01.2018, the Superintending Engineer, Uttarkashi, vide his aforesaid communication, had directed the Executive Engineer to register an FIR, as against the present applicant.
x. Consequently, the FIR no. 03 of 2018 dated 20.02.2018 was registered by Dhirendra Kumar, the then Executive Engineer of Public Works Department, Purola, Uttarkashi.
8. From the above analysis, one thing which is quite apparent is that the source of the registration of the complaint/FIR was on the basis of the self-constituted body by the "Rawai Ekta Manch", who conducted an inspection and submitted its report to the District Magistrate and later the Executive Engineer about the poor quality of the work, which was later on, on the basis of the enquiry conducted by the team which was presided over by the Sub-divisional Magistrate, it was ultimately found that the applicant had procured the contract by placing a fraudulent experience certificate in the contracting process, and, later on the consequential action followed of forfeiture of the amount and cancellation of the contract and furthermore by banning the applicant for two years from procuring any public contracts.
59. In these backdrops, the question would be as to whether at all the present applicant, who at the relevant point of time was working as a Junior Engineer with the department, involved in corrupt practises, could at all be the necessary party to be impleaded in this C-482 Application for the action taken on an FIR, which was got registered by the Executive Engineer on the direction of the Chief Engineer and on the basis of Enquiry Report, which finds reference in the FIR.
10. The learned counsel for the applicant, in fact, had attempted to address the Court, that the term "impleadment", has had to be read as to be synonymous to a person being "summoned to be witnessed", in a criminal proceeding, by invocation of the provisions contained under Section 311 of the Code of Criminal Procedure.
11. This Court is of the view that the powers given under Section 311 to the Code, it's rather a leverage given by way of an enabling provision by virtue of which the Court can act at any stage to examine a person as a witness or examine any person in attendance, though not summoned as a witness in the principle proceedings or is required to be summoned to be examined. For ready reference Section 311 of Code of Criminal Procedure is extracted here under:-
"311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."
12. With all humble opinion, which this Court has, this Court is of the view that the enabling provision given to the 6 Court under Section 311 of the Code of Criminal Procedure, to examine a witness or to call upon a witness, who could not have been examine earlier for substantiating a case, which is under trial before the Court, is not to be read as a substitute or synonymous provision to permit an impleadment of a person, who is otherwise not an affected party or who is not likely to be affected by the conclusion to the trial, in pursuance to the FIR, which was registered against the present applicant. At the behest of the directions, which were issued by the Executive Engineer for the reasons being that the applicant to the "Impleadment Application", is neither the source of the proceedings, nor a complainant nor had figured anywhere during the course of enquiry conducted from the stage of submission of the report by the "Rawai Ekta Manch", till the direction was issued for registration of the FIR by the Executive Engineer.
13. The second argument of the learned counsel for the applicant to the Impleadment Application is in context of the provisions contained under Section 165 of the Evidence Act. It would be apt to observe that Section 165 of the Act is yet again not a substitute to a provision of impleadment. For ready reference Section 165 of Evidence Act is extracted here under:
"165. Judge's power to put questions or order production. The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross- examine any witness upon any answer given in reply to any such question.
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this Section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any 7 other person to ask under Sections 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."
14. Because, the very title head of the provision almost it happens to be synonymous to the provisions of Section 311 of Cr.P.C., where the Judge seized with the trial, is vested with the power to question or produce a document or a person. Section 165 of the Evidence Act, which has been extracted above, it's only an instrument or a tool by way of yet again an enabling provision to provided to the Court, to discover or obtained a proper proof to facilitate him in coming to a rightful conclusion. If the Judge while exercise its powers under Section 165 of Evidence Act, only finds an anonymous person to be a necessary person to be called to be examined as a witness while exercising it's powers under Section 165 of the Evidence, that in itself will not to lead to an inference that the person thus summoned is actually required to be impleaded as a party, because impleadment will only be in those cases, where a person is likely to be affected by the conclusion of the trial and not otherwise.
15. The counsel for the applicant in furtherance of his arguments extended above, has also made reference to the provisions contained under Section 319 of the Code of Criminal Procedure, which is extracted here 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.8
(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;
(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."
16. Section 319 of the Code of Criminal Procedure, which is exclusively in fact a power vested with the Court yet again, it enables the Court, that in the process of during the course of trial, when the Court during the conducting of an enquiry or a trial, on an appreciation of evidence brought before it, if it finds, that any person who is not being named as an accused has committed offence for which such person could be tried, the Court can call upon the person to be tried for the offence. Sub-Section (1) of Section 319, quite expresses in its terms the provision is yet again a prerogative vested with the Court based upon an appreciation of evidence/ or summoning of an accused person, who according to the wisdom of the Court which would be based upon a rational interpretation of the evidence which had been led before it to call upon a person to be tried, who is otherwise not being tried under a trial. This provision yet again is not a provision, which facilitates the concept of impleadment of a third person in a proceeding, whom the Court itself has not found it to be a suitable person. In the absence of whom, the trial cannot be proceeded with or decided satisfactorily on its own merit. The provision under Section 319, Sub-Section 1, has been misconstrued by the counsel for the applicant to the Impleadment Application, as if it's a provision which permits to implead a person as party to the proceedings.
17. The learned counsel for the applicant has referred to various judgments on which he wants to place reliance and first 9 being, that has reported in 2016 SCC OnLine Utt 722, 'Harish Chandra Singh Rawat Vs. Central Bureau of Investigation and Others", particularly, he has referred to Para 4 and 6 of the said judgment, which is extracted here under:
"4. Present impleadment application has been filed by the petitioner for impleading Union of India through its Secretary, Department of Personnel & Training as well as State of Uttarakhand through its Principal Secretary (Home Affairs) as respondent nos. 4 & 5 respectively.
6. There is no serious objection on behalf of the learned counsel appearing for the respondents, to the application. The impleadment application is allowed. Union of India through its Secretary, Department of Personnel & Training as well as State of Uttarakhand through its Principal Secretary (Home Affairs) are impleaded as respondent nos. 4 & 5 respectively."
In this case, while exercising its powers under Section 482 and considering the Impleadment Application which was subject matter therein, had allowed the Impleadment Application and the rational which was attached while passing the order of allowing Impleadment Application by the Court, exercising its powers under Article 226, was that since the Impleadment Application was not objected by his adversary, the Court has allowed the Impleadment Application, with all due reverence at my command. The judgment relied by learned counsel for the applicant would not be a ratio decidendi rather it was only an accommodation and an exception given by the Court because the Impleadment Application itself was not seriously objected by the opposite party and it had not laid down a law on impleadment in a criminal proceeding.
18. Another judgment on which the reliance has been placed by the learned counsel for the applicant to the Impleadment Application, is that as rendered by Punjab and Haryana High Court in 'Krishan Lal Vs. State of Haryana', extracted here under:
"CRM No. 2716 of 2021 This is an application under Section 482 Cr.P.C. for impleading applicant Rajni Bala wife of Krishan Lal as party respondent no. 2. Complainant has already appeared through her 10 counsel in numerous proceedings conducted before this Court from time to time.
1 of 9 In view of aforesaid position, applicant Rajni Bala is ordered to be impleaded as respondent No. 2 in the interest of justice."
In fact, wherein the Coordinate Bench of Punjab and Haryana High Court, in exercise of its powers under Section 482, while considering the Impleadment Application, had permitted the Impleadment Application and particularly, the counsel for the applicant has observed that since the Coordinate Bench of Punjab and Haryana High Court has allowed the Impleadment Application, the automatic inference which could be drawn that invariably under all facts and circumstances of the case, irrespective as to what effect would it have on the merits of the matter, as to whether at all the person sought to be impleaded is likely to be affected on the culmination of a trial, would not create a ratio because the Punjab and Haryana High Court too, though it was passing an order in the exercise of its powers under Section 482 on the Impleadment Application, has yet again not laid down a ratio, as to under what circumstances and for what reasoning, the Impleadment Application could be allowed.
19. The learned counsel for the applicant has yet referred to yet another judgment rendered by the Hon'ble Apex Court as reported in, 2022 SCC OnLine SC 1001, "Honnaiah T.H. Vs. State of Karnataka and Others", which was arising out of a Criminal Appeal No. 1147 of 2022, particularly, the counsel for the applicant has made reference to Para 8 and Para 17 of the said judgment, which is extracted here under:
"8. The State did not pursue its remedies against the order of the trial court. The appellant instituted a criminal revision under Sections 397(1) and 401 of the CrPC. The High Court by the impugned judgment dated 20 December 2021 upheld the order of the trial court, and dismissed the revision petition on the ground of maintainability. The High Court observed that the appellant as the de-facto complainant had no locus standi to file the revision petition. The relevant observations of the High Court are extracted below:11
"12. The State has left the matter as it is. However, it is the complainant who is now agitating before this Court by challenging the said order. The word 'victim' is defined in Section 2(wa) of the Cr.P.C. which reads as under:
"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;
13. In a given case, it also includes the rights of the complainant which is carved out under Section 372 of Cr.P.C. only for the purpose of challenging the order passed by the Court acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation. Except these three requirements in the amended CrPC for the victim/complainant, when the CrPC is silent as to the further rights of a victim/complainant, the filing of the revision petition challenging every order that would be passed during the pendency of the trial is not maintainable. Therefore, revision petition at the instance of the defacto complainant/victim, in the considered opinion of this Court, is not maintainable."
17. The view of the High Court that a victim/complainant needs to restrict his revision petition to challenging final orders either acquitting the accused or convicting the accused of a lesser offence or imposing inadequate compensation (three requirements mentioned under Section 372 CrPC) is unsustainable, so long as the revision petition is not directed against an interlocutory order, an inbuilt restriction in Section 397(2) of the CrPC. In the present case, the appellant filed a criminal revision as his interests as an informant and as an injured victim were adversely affected by the trial court rejecting the prayer to mark the statement of the informant as an exhibit. Having held that the order of the trial court is not interlocutory in nature and that the bar under Section 397(2) of the CrPC in inapplicable, a criminal revision filed by an informant against the said order of the trial court was maintainable. In Sheetala Prasad v Sri Kant, a two Judge Bench of this Court has held that a private complainant can file a revision petition in certain circumstances, including when the 13 (2003) 8 SCC 625 14 (2010) 2 SCC 190 trial court wrongly shuts out evidence which the prosecution wishes to produce. Noting the principles on which revisional jurisdiction can be exercised by the High Court at the instance of a private complainant, this Court observed:
"12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of the Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of a private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been over- looked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence, and 12 (5) where the acquittal is based on the compounding of the offence which is invalid under the law."
If Para 8 is taken into consideration, while referring to the exercise of Revisional jurisdiction by the High Court with a rational impact of appellant, as a de-facto complainant, has observed that there is no locus standi to file a revision petition and the relevant observations has been made on the basis of the extract made by the judgment which was under challenge before it, as referred to in Para 8 in the context of the definition of 'victim' as defined under Section 2(wa) of CrPC, the definition is extracted here under:
" 'victim' means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression 'Victim' includes his or her guardian or legal heir;"
Even if for the time being the definition of 'victim' under the Code of Criminal Procedure is taken into consideration, even otherwise by logical inference, the term victim would be only confined to be made applicable to a person, who is likely to be affected by any cause which is agitated by him or against him. That means a person who could or who is likely to suffer a loss or an injury to be caused to him by reasons of the act or omission in a proceeding, which are held on the criminal side. Reverting back to the definition of the victim, as given in the Code of Criminal Procedure, the definition of victim has provided under Section 2(wa), the said definition was introduced by an insertion made by Act No. 5 of 2009, which yet again in its literal terms, it's only denotes to a person, who is likely to suffer a loss or an injury, it does not includes within it, an applicant who could or who could be required to be summoned as a witness, or would be affected by any judgment which has to be ultimately passed in the criminal case.
1320. As it has been argued by the learned counsel for the applicant in the context of provisions contained under Section 311 and 319 of the Code of Criminal Procedure, the registration of a criminal proceeding against him under the provisions of the Prevention of Corruption Act, as against the applicant to the Impleadment Application, is altogether a different proceeding, which is to be held against him before the Competent Court. But, that in itself does not mean, that if ultimately the applicant was found to be involved in a proceeding under the Prevention of the Corruption Act, which has been drawn against him, he automatically becomes relevant party to be prosecuted in the proceedings which have been held in the present Criminal Case No. 346 of 2018, "State of Uttarakhand Vs. Janak Singh".
21. The hon'ble Apex Court by strength of bench of three Judges in the matter of "Ajay Kumar and others Vs. State of Uttarakhand", in its judgment rendered in Criminal Appeal No. 88 of 2021, as decided on 29.01.2021, has dealt with as to ambit of exercise of powers under Section 319. The hon'ble Apex Court quite in its explicit terms, while making reference to a constitution been judgment of 'Hardeep Singh Vs. State of Punjab and others' as reported in (2014) 3 SCC 92, has observed that the powers given to the Court under Section 319 is a discretionary and extraordinary powers, which has to be exercised sparingly. The hon'ble Apex Court has further observed that it has to be only applied when there is a prima facie case to be exercised at the time of framing of charge, for calling a person to be prosecuted that would be subject to satisfaction to be recorded by the court, this provision or the authority is not dealing with concept of impleadment.
1422. While extracting the observations made by the Constitution Bench in its Para 105 and 106, which is extracted here under:
"105. Power under Section 319 Cr.P.C. 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 requires 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 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused."
The Hon'ble Apex Court has observed that the implications of Section 319 of the Code of Criminal Procedure could not be stretch to an extent to make it as a substitute provision to implead a person who has been otherwise required to be called only for the purposes of summoning as a witness in a proceeding, because it needs no reference, that calling a person as a witness in a proceeding does not mean that, he is a person who is affected by the judgment or is a necessary party, in whose absence the proceedings cannot be effectively decided on its own merits, in that view of the matter and for the reasons assigned above, this Court is not inclined to allow the Impleadment Application.
23. The Impleadment Application (CRMA No. 4293 of 2020) is hereby rejected.
1524. The C-482 Application itself is directed to be listed in the 3rd week of April, 2023, for its own consideration on its merit.
25. Interim Order dated 07.12.2018 is extended till the next date of listing.
(Sharad Kumar Sharma, J.) 20.03.2023 PN/-