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Madhya Pradesh High Court

Anil Kumar Godre vs The State Of Madhya Pradesh Judgement ... on 24 September, 2013

                         M.Cr.C.No.564/2011




24.9.2013        Shri Sushil Kumar Tiwari, counsel for the
            applicant.
                 Shri R.N.Yadav, Panel Lawyer for the State/
            respondent No.1.

Heard the learned counsel for the parties finally.

The applicant has challenged the order dated 12.8.2010 passed by the learned JMFC, Sagar in criminal case No.1057/2010, whereby the application under section 319 of the Cr.P.C. filed by the respondent No.2 was allowed against the applicant and he was added as an accused.

The facts of the case, in short, are that, one Abdul Rasheed had lodged an FIR against the applicant and the respondent No.2 for offence punishable under sections 419, 420, 471, 483 of IPC at Police Station Gopalganj, District Sagar. After due investigation, a charge-sheet was filed against the respondent No.2 only. After filing of the charge-sheet, the learned JMFC took cognizance against the respondent No.2 only. Thereafter, an application under section 319 of the Cr.P.C. was moved by the respondent No.2 that the applicant may also be made accused in the case and therefore, vide order dated 12.8.2010, the learned JMFC has directed to add the applicant as an accused.

After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the learned JMFC has passed the impugned order on application under section 319 of the Cr.P.C., prior to recording of the evidence in the case. The Magistrate can take cognizance against anyone at the time when the charge-sheet is filed under section 190 of the Cr.P.C. If no cognizance has been taken by the Magistrate at that stage then, he can take cognizance against the accused under section 319 of the Cr.P.C., if some evidence is produced before the Magistrate and for the provisions under section 319 of the Cr.P.C., evidence means the evidence produced before the Court and not the evidence collected by the prosecution. Under such circumstances, the learned JMFC has passed an order under section 319 of the Cr.P.C. without recording any evidence before himself. Certainly, that order passed on application under section 319 of the Cr.P.C. appears to be pre-mature.

On the basis of the aforesaid discussion, the petition under section 482 of the Cr.P.C. filed by the applicant Anil Kumar Godre is hereby allowed. The impugned order dated 12.8.2010 passed by the learned JMFC, Sagar is hereby set aside. It is M.Cr.C.No.564/2011 directed that the application of the respondent No.2 shall be decided by the trial Court after recording of some evidence by the prosecution. After recording the evidence of the prosecution, if the learned Magistrate comes to the conclusion that there is a prima facie case against the applicant then, he may decide the application under section 319 of the Cr.P.C. accordingly.

Hence, it is directed that order dated 12.8.2010 is hereby set aside. The learned JMFC shall pass an order according to the law on the application under section 319 of the Cr.P.C. filed by the respondent No.2 after recording the prosecution's evidence, which would be sufficient to decide the aforesaid application.

A copy of the order be sent to the trial Court for information and compliance.

However, stay order dated 20.1.2011 is hereby vacated. The learned JMFC may proceed with the trial.

(N.K.GUPTA) JUDGE Pushpendra