Madhya Pradesh High Court
Mohammad Farukh @ Eslam vs The State Of Madhya Pradesh on 8 February, 2017
1
M.Cr.C.No.3008/2016
(Mohd. Farukh @ Eslam v. State of M.P.)
08/02/2017
Shri R.V.S. Ghurariya, Counsel for the
applicant.
Shri Arun Barua, Panel Lawyer for the
respondent/State.
With the consent of the parties, heard finally. This application under Section 482 of Cr.P.C. has been filed against the order dated 23-2-2016 passed by IVth A.S.J., Gwalior in Criminal Revision No. 95 of 2016 by which order dated 19-1-2016 passed by A.C.J.M., Gwalior in criminal case no. 6625/2015 was affirmed.
The necessary facts for the disposal of the application are that the police had filed a charge sheet against Darshanlal and Hitesh for offence punishable under Section 4(a) of Public Gambling Act. The case of the prosecution was that the co- accused persons were writing satta patti and were assuring Rs. 1500 in place of Rs. 1000 in a Cricket match which was being played between India and Pakistan. During search an amount of Rs. 2700, one color T.V. of L.G. Company, one Paper pad, one Dot pen and one mobile were recovered from Darshanlal whereas from Hitesh, an amount of Rs. 2500, 2 dot pens, 2 copies and 4 papers were seized. On interrogation, both the accused persons informed that 40% of the share goes to the present applicant and just few minutes prior to the raid, he had left with an amount of Rs. 25,000/-. Initially, the 2 M.Cr.C.No.3008/2016 (Mohd. Farukh @ Eslam v. State of M.P.) applicant was also made an accused in the matter but subsequently, charge sheet was filed against Darshanlal and Hitesh only.
At the time of recording to evidence, relying on the evidence of Jitendra (P.W.2), the Trial Court by order dated 19-01-2016, summoned the applicant as an additional accused. Being aggrieved by the said order, the applicant filed a criminal revision, which too had suffered dismissal. Hence, this petition.
It is submitted by the Counsel for the applicant that even otherwise, there is no sufficient material to exercise power under Section 319 of Cr.P.C. The Counsel for the applicant further submitted that the statement made by the co-accused while they were in custody of the police would not be admissible and would be hit by Section 25 and 26 of the Evidence Act. Thus, without there being any admissible evidence, the Trial Court has exercised the power under Section 319 of Cr.P.C.
Per Contra, it is submitted by the Counsel for the State that whether the evidence of Jitendra (P.W.2) and whether the information given by the co-accused persons is admissible or not is a question of fact which can only be decided after the Trial, therefore, at this stage, the Trial Court has not committed any material illegality by exercising power under Section 319 of Cr.P.C.
Heard the learned Counsel for the parties and 3 M.Cr.C.No.3008/2016 (Mohd. Farukh @ Eslam v. State of M.P.) perused the documents filed along with the application.
The Supreme Court in the case of Hardeep Singh Vs. State of Punjab reported in (2014) 3 SCC 92 has held as under :
"105. Power under Section 319 CrPC 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 CrPC. In Section 319 CrPC 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 4 M.Cr.C.No.3008/2016 (Mohd. Farukh @ Eslam v. State of M.P.) words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."
Thus, it is clear that before exercising power under Section 319 of Cr.P.C., the Trial Court must come to a conclusion that there is a strong evidence than mere probability of his complicity. On mere suspicion, power under Section 319 of Cr.P.C. cannot be exercised. If the facts of the present case are considered in the light of the well established principle of law then it would be clear that Jitendra (P.W. 2) has stated in his evidence that while the co-accused persons were in the custody they had disclosed this fact that they were writing satta patti under the instructions of the applicant and just few minutes before the raid, the applicant had left the place along with an amount of Rs. 25,000/-. From the conjoint reading of Section 25,26 and 27 of Evidence Act, it would be clear that only that part of the confessional statement of an accused can be proved which had led to discovery of fact. Therefore, the remaining part of the confessional statement cannot be said to be admissible in evidence. Thus, it is clear that at this stage no admissible evidence is available against the applicant. Further there is no finding recorded by the Trial Court with regard to the possibility of conviction of the applicant. When this Court has 5 M.Cr.C.No.3008/2016 (Mohd. Farukh @ Eslam v. State of M.P.) come to a conclusion that there is no admissible evidence available against the applicant, therefore, there is no possibility of his conviction also.
Hence, the Court is of the considered view that the order dated 19-1-2016 passed by the A.C.J.M. Gwalior in Criminal Case No. 6625/2015 and order dated 23-2-2016 passed by the IVth A.S.J., Gwalior in Criminal Revision No. 95/2016 are not in accordance with law and therefore, they are set aside.
Consequently, the applicant succeeds, and is hereby allowed.
(G.S.Ahluwalia)
(ra) Judge