Bombay High Court
Ashok Ghanshyam Kamble vs Central Bureau Of Investigation on 12 October, 2009
Author: R. Y. Ganoo
Bench: R. Y. Ganoo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
CRIMINAL REVISION NO. 3 OF 2008
Ashok Ghanshyam Kamble
aged adult, retired Income Tax Officer,
r/o Akola, Tah. & Dist. Akola. :: APPLICANT
-: VERSUS :-
1. Central Bureau of Investigation,
Anti corruption Bureau, Nagpur.
2. Suresh Gopalrao Kawar,
r/o Prasad Colony, Jatharpeth,
Akola.
3. Mahendra s/o Mohanlal Sahu,
Alsi Plots, Akola. :: RESPONDENTS
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Mr. Abhishek Mohgaokar, Advocate with Mr. Anil Mardikar, Advocate
for the Applicant.
Mr. Shyam Ahirkar, Special Counsel for respondent No. 1.
None for respondents No. 2 and 3.
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CORAM: R. Y. GANOO, J.
DATED : 12TH OCTOBER, 2009 Oral Judgment
1. Respondents No. 2 and 3 are facing trial under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act being Special Case No. 4 of 2005 before the learned Special Judge for C. B. I. at Akola.
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2. It is noticed that some evidence came to be recorded in the said case and original accused No. 2 i.e. respondent No. 3 filed an application at Exh. 90 before the learned Special Judge praying that the present petitioner should be joined as accused on the basis of evidence which was then before the learned Special Judge. That application was heard by the learned Special Judge on merits.
Opportunity was given to the present applicant to advance his submission in connection with the prayer set out in Exh. 90. The learned Special Judge at Akola by his order dated 07/12/2007 granted the request of joining the present applicant as accused No. 3 and certain other orders were passed. This order dated 07/12/2007 is challenged in this petition.
3. I have heard learned Advocates on both sides. It was sought to be argued in principle by the learned Advocate for the applicant that provisions of Section 319 of the Code of Criminal Procedure should have been invoked by the prosecutor by filing application and thereafter the Court should have decided the said matter. According to the learned Advocate for the applicant, it will not be open for a person who is shown as accused (in a pending case) to make an application that a particular person should be joined as an accused by using the provisions of Section 319 Cri. P. C. He, therefore, submitted that the order passed by the learned ::: Downloaded on - 09/06/2013 15:13:01 ::: crra3.08.odt 3 / 4 Special Judge is patently incorrect, and therefore, it should be set aside.
4. Learned Advocate Mr. Ahirkar appearing for the C. B. I. submitted that the discussion mentioned in the impugned order indicates that there is material to join the present applicant as an accused, and therefore, the learned Special Judge was satisfied that application should be granted. He submitted that once the Court comes to a conclusion that there is material to join a particular person as an accused, this Court should not interfere in the said order.
5. At this juncture, I do not wish to express any view whether on the basis of evidence recorded up till now the case is made out against the applicant to join him as an accused. I am looking to this matter from limited angle as to who should make application for joining a particular person as an accused and in my view after having considered the scheme under Section 319 Cri. P. C., one thing is clear that a person who is facing the trial cannot make an application so as to see that a particular person is to be joined as an accused. It would be a prerogative of the learned prosecutor to file such an application. At this juncture, I do not wish to express any view whether the Court could take steps under ::: Downloaded on - 09/06/2013 15:13:01 ::: crra3.08.odt 4 / 4 Section 319 Cri. P. C. suo motu as the said point was not pressed before this Court. In view of the aforesaid, the application Exh. 90 filed by original accused was not maintainable and on this count it could not have been considered by the learned Special Judge and hence the order passed by the learned Special Judge on the said application, i.e. to say grant of such application will have to be set aside and as such the revision will have to be granted. Hence, the following order is passed so as to dispose of the revision.
i) Rule is made absolute in terms of prayer clause (1).
ii) It is clarified that this Court has not expressed any views on the merits of the matter as to whether present applicant would be joined as an accused.
iii) Stay granted at the time of admission shall stand vacated.
iv) Writ to go forthwith.
JUDGE wwl ::: Downloaded on - 09/06/2013 15:13:01 :::