Madhya Pradesh High Court
Brajendra Singh vs The State Of Madhya Pradesh Thr on 23 September, 2021
Author: Anand Pathak
Bench: Anand Pathak
1 M.Cr.C.No.39772/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
:SINGLE BENCH:
{JUSTICE ANAND PATHAK, J.}
MISCELLANEOUS CRIMINAL CASE NO.39772/2018
Brajendra Singh
Vs.
State of Madhya Pradesh
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Shri Sunil Kumar Jain, learned counsel for the petitioner.
Shri Lokendra Shrivastava, learned Public Prosecutor for the
respondent/State.
None for respondent No.2.
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ORDER
(Pronounced on 23rd day of September, 2021)
1. The instant petition under Section 482 of Code of Criminal Procedure, 1973 has been preferred by the petitioner against the order dated 31-08-2018 passed in Criminal Revision No.61/2018 by Third Additional Sessions Judge, Morena confirming the order dated 08-06-2018 passed by JMFC, Morena in Criminal Case No.15/2010 whereby cognizance has been taken against the petitioner over the application of prosecution under Section 319 of Cr.P.C.
2. Precisely stated facts of the case are that one criminal case vide Crime No.587/2019 was registered against four persons under Sections 323, 452, 327, 294, 506-B/34 of IPC on complaint of respondent No.2 at Police Station Kotwali, Morena. As per 2 M.Cr.C.No.39772/2018 allegations, on 31-07-2009 at 9:30 am accused persons committed house trespass with intent to commit crime and also demanded Rs.500/- for consumption of liquor. After registration of FIR, investigation conducted by Police authorities and during investigation, it was found in the enquiry conducted by Addl. Superintendent of Police purportedly under Section 36 of Cr.P.C. that accused i.e. present petitioner was not involved in crime and his plea of alibi was established by the statements of witnesses taken by the said officer and therefore, his name was removed from the list of accused persons. For remaining accused persons, charge-sheet was filed.
3. During trial, one application under Section 319 of Cr.P.C. was filed before the trial Court and same was dismissed as no evidence was found over and above the charge-sheet filed by the Investigating Officer whereby the present petitioner was exonerated. Later on, another application was filed under Section 319 of Cr.P.C. in 2016 before trial Court and vide impugned order dated 08-06-2018, same was allowed.
4. Being aggrieved by the said order, revision petition was preferred under Section 397, 399 and 401 of Cr.P.C. but same was dismissed vide impugned order dated 31-08-2018. Therefore, this petition has been preferred.
5. It is the submission of learned counsel for the petitioner that at the time when alleged incident took place, petitioner who was 3 M.Cr.C.No.39772/2018 working as Government Teacher in Primary School, Jouri was in school which is far away from the place of incident and this fact came into the evidence collected by Addl. Superintendent of Police in enquiry under Section 36 of Cr.P.C. wherein statement of Principal and other witnesses have been taken who supported the contentions of petitioner that from 7:30 am to 12:30 pm (or so) he was at school specially when alleged incident took place at 9:30 am on 31-07-2009. Therefore, there is no question of participation in such incident. Attendance register and other relevant certificates of school were produced in the enquiry.
6. It is further submitted that once charge-sheet was not filed by the Investigating Officer in categorical terms and Khatma report so far as petitioner was concerned was accepted by the trial Court and when earlier application under Section 319 of Cr.P.C. already rejected, then on same set of evidence, second application cannot be entertained. Courts below ought to scrutinize the matter carefully because matter pertains to personal liberty of an individual. Impugned orders are bad in law and suffer from perversity.
7. On the other hand, learned counsel for the respondent/State opposed the submissions and on the basis of Constitution Bench Judgment rendered in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92, submits that petitioner can plead his innocence only on the basis of trial because 4 M.Cr.C.No.39772/2018 witnesses have referred in their chief examination about the involvement of petitioner, therefore, at this stage no interference can be made. He prayed for dismissal of petition.
8. Heard learned counsel for the parties and perused the documents appended thereto.
9. This is a case where petitioner has been impleaded as accused on an application preferred under Section 319 of Cr.P.C. by the prosecution. Initially name of petitioner was referred in FIR as well as in the statements of witnesses under Section 161 of Cr.P.C. It appears from the record that matter was referred for further enquiry under Section 36 of Cr.P.C. and enquiry was conducted by the Addl. Superintendent of Police in which statement of Principal where petitioner was working as Primary School Teacher was taken and he specifically made statement that at the relevant point of time, petitioner was in school taking classes and he placed attendance register and other documents in this regard. Besides that, from the record it further appears that Officer took the statement of four witnesses namely, Mahvir Singh Yadav, Shivnath Singh Rathore, Sukhdev Sikarwar and Birbal Singh Kushwah and they made their statements in specific term that they had seen the petitioner going to school at around 7 am on 31-07-2009 along with other contents of incident. Their statements were taken on 19-08-2009.
10. It further appears that Panchnama dated 11-01-2009 (much 5 M.Cr.C.No.39772/2018 before the incident on 31-07-2009) was also placed in the enquiry in which all residents of neighbourhood of petitioner and complainant (both share neighbourhood) made a complaint to the SHO, Police Station City Kotwali, Morena that due to shop of complainant Deenanath Pachori (Grocery shop) many anti-social elements collect there and consume liquor which causes embarrassment and harassment in the neighbourhood and people are not comfortable with this development. When they referred this development, then he tried to counteract by making false allegations. The said complaint is apparently dated 11-01- 2009, six months prior to the alleged incident.
11. Not only this, all those witnesses referred the course of event in different tenor wherein 4-5 young boys while covering their faces (Aged 18-20 years) caused marpeet to the family of complainant. Report dated 25-08-2009 prepared by Addl. S.P. was also part of documents and reveals that detailed enquiry was conducted. This aspect further gains ground because Investigating Officer ultimately did not file charge-sheet against the present petitioner and even trial Court accepted the same and proceeded for trial against three accused persons only.
12. Earlier one application under Section 319 of Cr.P.C. was preferred in year 2011, but as submitted by counsel for the petitioner that same got dismissed but now they again filed 6 M.Cr.C.No.39772/2018 another application in 2016. Said application was preferred when chief examination of prosecution witnesses were asked by Public Prosecutor to divulge the details by which public prosecutor suggested leading question to the witnesses. Although on objection, trial Court stopped the public prosecutor to raise such question but the witness got the hint and reiterated the allegations in which petitioner was referred as man wielding gun and causing threat to the complainant/witness. This further makes the case of prosecution motivated.
13. In the Vinay Tyagi Vs. Irshad Ali alias Deepak and others, (2013) 5 SCC 762, the Apex Court in some how similar facts and circumstances of the case quashed the order of impleadment as accused under Section 319 of Cr.P.C. The discussion from the said guidance can be profitably borrowed in the present case also.
14. In the case of Nirmal Singh Kahlon Vs. State of Punjab and other, (2009) 1 SCC (Cri) 523, Central Bureau of Investigation Vs. State of Rajasthan and another, 2001 SCC (Cri) 524, State of Kerala Vs. P.B. Sourabhan and others, (2016) 4 SCC 102, the Apex Court has considered the interplay of charge-sheet and enquiry under Section 36 of Cr.P.C. and opined that scope of enquiry is meant to supplement the powers of the officer-in-charge of the Police Station.
15. The Apex Court in the matter of Hardeep Singh (supra) held 7 M.Cr.C.No.39772/2018 that:
"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.
117. We accordingly sum up our conclusions as follows:
Questions (i) and (iii) 8 M.Cr.C.No.39772/2018 What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial ?
Answer 117.1. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319Cr.P.C. becomes available for summoning an additional accused. 117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.;
and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.
9 M.Cr.C.No.39772/2018117.3. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Question (ii) -Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
Answer 117.4. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question (iv) -What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer 117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for 10 M.Cr.C.No.39772/2018 summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question (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?
117.6 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 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."
16. Recently, the Apex Court in the matter of Ramesh Chandra Srivastava Vs. The State of U.P. & Anr. vide order dated 13- 09-2021 in Criminal Appeal No.990/2021 held in the following manner:
"The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 Cr.P.C. should be exercised. The power cannot 11 M.Cr.C.No.39772/2018 be exercised in a casual and cavalier manner. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges."
17. One more factor which persuades this Court to weigh in favour of petitioner is long pendency of trial because alleged incident is of 31-07-2009 and 12 longs years have passed and we are in 2021. Therefore, long drawn proceedings in which petitioner being impleaded in June, 2018 so more than 3 years of implication and prior to it, when the investigation took place petitioner already suffered rigours of proceedings, that too on flimsy pretext.
18. In cumulative analysis, it appears that on same set of evidence which is prevailing since day one, petitioner has been tried to be implicated. When on same set of evidence as figured in FIR and statements under Section 161 of Cr.P.C., Investigating Officer did not prefer to file charge-sheet against the petitioner and when trial Court earlier declined to entertain application under Section 319 of Cr.P.C., thereafter no new facts or allegations resurfaced so as to implicate the petitioner, only on the basis of stale and repetitive allegations case of prosecution does not improve.
19. In the considered opinion of this Court, both the Courts below have erred in passing the impugned order. Therefore, petition stands allowed and impugned orders passed by the Courts below 12 M.Cr.C.No.39772/2018 are hereby set aside and petitioner is exonerated from impleadment and charge as accused over application under Section 319 of Cr.P.C. and he is set free.
20. Petition stands allowed and disposed of.
(Anand Pathak)
Anil* Judge
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
KUMAR
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GWALIOR, postalCode=474001,
CHAURASI st=Madhya Pradesh,
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Date: 2021.09.23 15:12:43 -07'00'