Madhya Pradesh High Court
Mohd. Usman vs State Of M.P. on 24 September, 2003
Equivalent citations: 2004CRILJ4085
ORDER S.L. Jain, J.
1. Being aggrieved by the order dated 25-9-2001 passed by Additional Chief Judicial Magistrate, Chindwara in Criminal Case No. 1395/02, the petitioner has filed this revision invoking jurisdiction of this Court under Section 397/401 of the Code of Criminal Procedure.
2. Facts of the case which led to filing of this revision are that Executive Engineer, M.P. Electricity Board lodged a report at police station Chhindwara, alleging that on 22-5-1995 eight Transformers were issued to Ramesh Patankar, Assistant Lineman from Regional Store of M.P. Electricity Board located at Chandangaon. Gate pass Nos. 40, 39 and 41 were also issued. Since the vehicle for transportation was not available on that day, transformers could not be carried to their destination. On 25-5-1995 Assistant Lineman Ramesh Patankar transported only 3 transformers to Umarnala but remaining 5 transformers were not sent to Umarnala and they were misappropriated. The register maintained by security guard reveals that these 5 transformers were taken out from the main gate. As per the procedure, second copy of the gate pass is required to be deposited with the security guard but the second copy of gate pass was not deposited by Ramesh Patankar. It is alleged that at the relevant time Vinayak Dandekar was the storekeeper and the petitioner Mohd. Usmani was the Executive Engineer posted at the store.
3. On a written report lodged by the Executive Engineer Crime No. 656/97 was registered at Police Station Chinndwara, on 5-10-1997. It is alleged in the first information report that the above referred three persons hatched conspiracy in the planned manner and misappropriated five transformers.
4. After investigation, challan for the offence punishable under Sections 409, 420, 468 and 120B IPC was filed against Vinayak Dandekar and Ramesh Kumar. The learned Magistrate framed charges in respect of the aforesaid offence against Ramesh and Vinayak Dandekar. During trial evidence of Shambu Dayal P.W. 2), Sohanlal (P.W. 4), Ganpati (P.W. 5), and Gulab (P.W. 6), was recorded. At this stage, learned prosecutor filed an application under Section 319, Cr.P.C. to add the petitioner and one Arun Rai as an accused, as according to the witnesses examined during trial these two persons were also participated in the crime.
5. After hearing the parties, learned Addl. Chief Judicial Magistrate, rejected the application so far as it related to Arun Rai but allowed the application in respect of the petitioner and fixed the case for appearance of the petitioner on 7-12-2001.This order has been challenged by the petitioner by filing instant revision petition.
6. I have heard Shri S.C. Datt, Senior counsel with Shri Alok Tapekar for the petitioner and Shri Jayant Nikhara, Govt. Advocate for the State and perused the record of the trial Court.
7. On perusal of the record, I find that FIR was lodged not only against Ramesh Patankar and V.G. Dandekar but also against petitioner. During investigation also all the witnesses have disclosed that the petitioner was also one of the participants in the commission of the offence.
8. In his evidence before the Court, during trial against Ramesh and V.G. Dandekar, Shiv Dayal Soni (P.W. 2) has stated in his cross examination that when only three transformers were loaded in the lorry, petitioner Mohd. Usman who was the in charge of the store was present.
9. In the evidence before the trial Court (P.W. 3) Shamboo Dayal has stated that on the date when the Transformers were issued from the store room, petitioner Mohd. Usman was posted at the store. He has also stated that subsequently Mohd. Usman was transferred to Jabalpur. This witness has been corroborated by Ganpat (P.W. 5).
10. It is alleged by the prosecution that Transformers which were issued, from the store were new one. To give the impression that last 5 transformers have been traced. Mohd. Usman send 5 old transformers with the help of Vinayak Dandekar. In his examination in chief he has stated that 5 transformers were loaded in the lorry at the instance of Vinayak Dandekar but in his cross examination he has stated that these transfers were transported from Jabalpur to Chandangaon store at the instance of the petitioner on 23-9-1997.
11. (P.W. 5) Ganpati, Asstt. Engineer has also stated in his cross examination that on 4-10-1997 Vinayak Dandekar and the petitioner Mohd. Usman visited him at his residence and informed him that five transformers which were lost in the year 1995 have been traced, at that point of time, Mohd. Usman was posted as Divisional Engineer, Jabalpur. Thus, there is material that the petitioner was responsible for replacing the old transformers by new five transformers and tried to give an impression that five transformers which were issued from store have been traced and there was no misappropriation. In view of the facts disclosed during investigation that petitioner was also responsible for misappropriation and in view of the statements of the witnesses recorded during the trial in the Court, learned Addl. Chief Judicial Magistrate found that petitioner is also responsible for the commission of the offence alleged against Vinayak Dandekar and Ramesh and petitioner could be tried together with the accused persons and proceeded against the petitioner for the offence alleged against him.
12. Shri Datt, learned senior counsel appearing for the petitioner submitted that discriminatory power conferred under Section 319, Cr.P.C. should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then. There is no compelling duty on the Court to proceed against other persons. He submitted that when as many as five witnesses were examined during the trial it was not desirable to array the petitioner as an accused. In this regard he relied on Michael Machado v. Central Bureau of Investigation (2000) 3 SCC 262.
13. In the case cited by the learned counsel until 49 witnesses were examined by the prosecution, trial Magistrate had no reason to feel necessary to implead the appellants but in this case only five witnesses have been examined so far. When the trial Court was satisfied from the evidence coming forth during the trial that the petitioner appears to be guilty of the offence, it will not be appropriate not to proceed against the petitioner only on the ground that few witnesses have been examined.
14. It is true that while exercising powers under Section 319, Cr.P.C. Court should see that an innocent person is not harassed but when there is ample evidence against the petitioner, the trial Court was justified in allowing the application and proceeding against the petitioner.
15. Learned counsel for the petitioner further submitted that the result of the order impugned will be that the whole proceeding will recommence from the beginning of the trial. The witnesses will be required to be summoned once again for their examination and cross examination. Since witnesses examined are large in number, the Court should refrain from adding the petitioner as an accused.
16. I have considered the order impugned from this point of view also. Only five witnesses have been examined during the trial and some of them are the employees of M.P.E.B. and there will be no difficulty in summoning them. When the sufficient material was available against the petitioner during investigation also and that he is a party to the commission of the offence or a criminal conspiracy to commit offence as alleged against other co-accused in the case, it was expected of the police authority to prosecute the petitioner along with other two co-accused. But for the reason best known to the police authorities the petitioner was not arrayed as accused in the challan.
17. For the aforesaid reasons, I am of the view that there was sufficient material before the trial Court against the petitioner to proceed against him therefore, no interference in the order impugned is, called for. The revision fails and is, accordingly, dismissed.