Madhya Pradesh High Court
Dabir Ahmed vs The State Of Madhya Pradesh on 21 August, 2015
1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Before Single Bench: Hon'ble Mrs. Justice S.R. Waghmare
Criminal Revision No. 748 / 2015
Dabir Ahmed
Vs.
The State of Madhya Pradesh
------------------------------------------------------------------------------------
Shri Ashutosh Surana, learned Counsel for the petitioner.
Shri Mukesh Parwal, learned Counsel for the respondent
No.1 / State.
Shri Sanjay Sharma, learned Counsel for the respondent
No.2.
Shri C.S. Panwar and Shri Harish Tripathi, learned Counsel
for the respondent Nos. 3 & 4.
------------------------------------------------------------------------------------------
ORDER
(Passed on 21/08/2015) Per Mrs. S.R. Waghmare, J.
By this present revision under section 397 r/w 401 of the Cr.P.C., the petitioner Dabir Ahmed has been aggrieved by the order dated 30/05/2015 passed in Sessions Trial Case No.224/13, whereby the application under Section 319 of the Cr.P.C. filed by the prosecution for adding two other co-accused persons has been dismissed by the Trial Court.
2Briefly stated, the facts of the case in nutshell are that the petitioner Dabir Ahmed is father of the deceased Shahir Ahmed who was murdered by four persons belonging to Akhil Bhartiya Vidhyarthi Parishad (ABVP), whereas the deceased son was a member of National Student Union of India; Counsel for the petitioner vehemently urged the fact that the appropriate investigation was not been conducted and the present petitioner has not been given justice since all the accused persons belong to influential families and the competent authorities were not conducting the investigation in a fair manner. In MCRC No.6469/2013, CBI investigation was sought and the petition under Section 482 of the Cr.P.C. is pending final adjudication. In the meanwhile, on 26/07/2013, the petitioner had filed an application under Section 24(8) of the Cr.P.C for appointment of Special Public Prosecutor in S.T. Case No.224/2013 pending before the 3rd Additional Sessions Judge, Ratlam. The prosecution refused to appoint any body else and hence another writ petition bearing no.933/2014 was filed before this Court and interim stay was granted on the trial and subsequently, State Government appointed a Special Public Prosecutor to aid the 3 prosecution and assist in the Sessions Trial No.224/2013. In the said writ petition, liberty was granted to the petitioner to move appropriate application for re-examination of witnesses already examined. According to the F.I.R filed by Naved Khan/eye witness, he has named three accused persons, Shiv Pandit, Piyush Bhatt and Bhupendra Singh Pawar. On the date of the incident Shiv Pandit and Piyush Bhat came on one motor cycle and on another motor cycle Bhupendra Singh Pawar was accompanied by another person whose name he did not know but he would be able to identify the person. In the F.I.R itself it has been stated that Shiv Pandit shot the deceased Shahir Ahmed with a gun and the fourth person had threatened that if any body intervened they would also be killed. Eye witnesses Aarif Hussain, Yasif Khan were also present on the place of occurrence. Moreover Counsel submitted that the eye witness Naved Khan has now been examined in the Court and it is alleged that he fully supported the prosecution case and he has remained stead fast in his statement before the Court and his statement corroborates to the information provided in F.I.R & his statement under Section 161 of the Cr.P.C.
4And hence immediately after his examination in Court an application under Section 319 has been moved before the Trial Court on 27/04/2015. However, Trial Court called for status report about the pending investigation and without appreciating the facts and the actual controversy in the matter, learned Judge of the Trial Court dismissed the application and hence the present petition.
Counsel for the petitioner vehemently urged the fact that the learned Trial Court had erred in rejecting the application since the Challan, F.I.R statement and witnesses clearly indicate that accused Shiv Pandit and Piyush Bhatt were also liable to be proceeded against for serious offenses under Section 302 of the I.P.C and the applicant / petitioner has raised his voice for an appropriate call for justice for the death of his son before all the forums that the investigation is tilted and biased on account political influence. So also the investigating officer has falsely submitted by his report that there was no evidence on record which implicates the main accused Shiv Pandit and Piyush Bhatt. The investigating officers report categorically stated that the presence of Naved Khan (who filed the F.I.R.) on the place of occurrence was itself doubted, 5 however, now that statement of other eye witnesses has been recorded in the Court, there is no need to doubt the implication of accused Shiv Pandit and Piyush Bhatt.
Counsel urged that even the present accused whose trial is going on could not be proceeded if the FIR itself disbelieved and the real culprits cannot be allowed to escape and the basic purpose of Section 319 of Cr.P.C would be frustrated.
Counsel placed reliance on Hardeep Singh v. State of Punjab and other cases [2014(3) SCC] p. 92b whereby the Apex Court on considering the object of fair trial and doctrine of judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted). Counsel submitted that constructive and purposive interpretation should be adopted so as to advance the object and cause of justice and considering the provisions of Article 20 & 21 of the Constitution of India and on the basis of principles of natural justice and fair trial.
Counsel further relied on the same case to state that the application under Section 319 can be filed at any stage of the trial and the Trial Court has to proceed against the accused person from the 6 committal; the trial Court has to take cognizance of offence. Counsel submitted that in the present case it is appropriate stage for Court to intervene and prayed that the impugned order be set aside and the Trial Court be directed to add the remaining accused persons so as to avoid multiciplity of proceeding. Counsel also vehemently urged the fact that the co accused Piyush Bhatt was already arrested on the date of 15/04/2013 itself, under the circumstances, there was no reason why the investigation was considered to be incomplete. Similarly the earlier application moved under Section 319 was dismissed by the Court on 02/03/2015 holding that Naved Khan who filed the F.I.R had not been examined in Court and hence it would not be possible to implicate the accused Shiv Pandit and Piyush Bhatt and the application would be considered only after the Naved Khan who recorded the F.I.R was examined in Court. Counsel submitted that it is now the correct stage on which the application has been filed again but it has been rejected on the extraneous ground. Counsel prayed that the impugned order be set aside and the co- accused be added as parties and order framing charge be passed against them.
7Per Contra Counsel for the respondent/State as well as for the other co-accused have vehemently urged the fact that the issuing of process under Section 319 would be abuse of process of Court primarily because section 319 itself indicates that if a person is added as an accused and tried; then, the proceeding should commence a fresh and the witness have to be re-heard. Counsel stated that the trial of the present accused/respondents was being unnecessarily protracted. It is now been two years since the accused are being tried and to undergo the De-Novo trial would be against the principles of natural justice and fair play. The investigating officer has given a clean chit to the accussed Shiv Pandit and Piyush Bhatt. And when the presence of witness Naved Khan itself was doubted, Counsel submitted that the trial Court has rightly rejected the application. Moreover the investigation was not yet been declared to be closed, nor has Shiv Pandit been arrested. Besides Counsel urged that the further investigation has been carried on for a long period and the trial has still not come to an end. Even the status report called by the Court indicated that the investigation was not making any further progress and statement /record of 8 eye witness are directly contradictory on the point. The independent witnesses Bapulal, Rahul and Hemendra in their statement under Section 161 have categorically stated that they did not know the accused persons and are put up witnesses. Whereas Aarif Hussain, Yasif Khan were interested party witnesses and related to the deceased. Due to political rivalry both the deceased Shahir Ahmed, Shiv Pandit and Piyush Bhatt belong to different student unions quarreled, the question of false implication could not be ruled out. Counsel for the petitioner also relied on Hardeep Singh Vs. State of Punjab [LAWS(SC)-2014-1-19] whereby the Court has discussed the conditions and stage under which Section 319 of the Code of Criminal Procedure can be exercised by the Court. Counsel submitted that the Apex Court considered the questions whether the power under Section 319 of the Cr.P.C. can be exercised only if the court is satisfied that on summoning the accused it will result in conviction and persons are not named in the FIR but not charged or who have been discharged. The Apex Court held that the primary duty of the Court is to find out the real truth and to ensure that the guilty had been 9 punished. However, Counsel submitted that the Court must be satisfied that the accused has committed some offence for which such person could be tried together with the other accused persons. However Counsel candidly admitted that the application can be filed under Section 319 of the Cr.P.C. at any stage of the trial. And Counsel submitted that however in the present case the application should have been justified but the discrepancies have already been pointed out. Counsel also relied on Rajendra Singh v. State of M.P.[I.L.R.(2014) P.2712 they also relied on Omprakash v. State of M.P. [2015 (II) MPJR SN 9] to indicate that the evidence of such accused persons must be substantial only then the person should be added as accused during the trial and there is reasonable prospects against such accused ending his conviction. Counsel prayed that the petition was without merit and they fully supported the order of the Trial Court rejecting the application filed u/s 319 of the Cr.P.C. by the prosecution.
Moreover Counsel submitted that the stage at which the application filed is also to be considered. Considering that nine witnesses have already been examined it would be unfair on the accused person to 10 have the trial protracted for apparently no fault of their own.
On considering the above submissions and considering the fact that the PW-10 Naved Khan has stated in Court in impugned paragraph two of his deposition that Piyush Bhatt and Bhupendra Pawar as soon as they arrived had held the hands of the deceased Shahir Ahmed and Shiv Pandit had fired directly on him and he was hit on the head and neck and Shahir had fallen down then it would be a matter of evidence to consider whether the proposed accused persons are guilty or not. However for framing of charge what is to be seen is whether there is a prima facie case available against the two accused persons so named Shiv Pandit and Piyush Bhatt. Besides, there is corroboration by the medical evidence on record that Shahir Ahmed died due to gun shot injury under these circumstances also it could not be denied that the proposed accused were not involved in the offence as already observed above. The Apex Court had held in the matter of Hardeep Singh (Supra) that the application can be filed under section 319 of the Cr.P.C on any stage of trial but the ingredient that is required is that to invoke the power to charge the 11 accused the degree of satisfaction for summoning of the accused would be higher than what is required at the initial stage since the order framing charge has to be passed. The Court must be also satisfied that the accused summoned is likely to be convicted and it appears from evidence that the said persons can be tried along with the accused already facing trial then in the present case looking to the nature of the allegations and the deposition of Naveed Khan- PW-10, I find that there is no doubt about the implication of the two accused so named Shiv Pandit and Piyush Bhatt. In this view of the above, I find that the order rejecting the application, is patently illegal, arbitrary and needs to be set aside. The trial Court had failed to consider that: all, that is required to be considered at the time of framing of charge is whether there is a prima facie case available against the accused and the FIR as well as the testimony of Naveed Khan PW-10 more than justified the allowing of the application under Section 319 filed by the prosecution and hence the petition is allowed. Impugned order is set aside and the Trial Court is directed to make these persons Shiv Pandit and Piyush Bhatt co-accused and commence the trial in 12 accordance with provisions of law as expeditiously as possible.
With the aforesaid observations and directions this petition is hereby allowed to the extent indicated herein above.
C.c as per rules.
(Mrs. S.R. Waghmare) Judge sumathi