Gujarat High Court
Kamleshbhai R Doshi & vs State Of Gujarat & on 2 April, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
KAMLESHBHAI R DOSHIV/SSTATE OF GUJARAT R/CR.MA/7950/2011 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 7950 of 2011 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ KAMLESHBHAI R DOSHI &
6....Applicant(s) Versus STATE OF GUJARAT &
1....Respondent(s) ================================================================ Appearance:
MR KB ANANDJIWALA, ADVOCATE for the Applicant(s) No. 1 - 7 MR VAJUBHAI D THORIA, ADVOCATE for the Respondent(s) No. 2 MS.MOXA THAKKAR, LEARNED APP for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 02/04/2013 CAV JUDGEMNT
1. The petitioners by way of this application under Section 482 of the Criminal Procedure Code, 1973 ( the Code for short) have challenged the order dated 09.02.2010 passed below Exh:130 in Criminal Case No.5143 of 1997 by JMFC, Rajkot and confirmed by the Additional Sessions Judge, Fast Track Court, Rajkot, in Criminal Revision Application No.20 of 2010 vide order dated 07.04.2011.
The facts arising out of the application are as under:-
The petitioners are residents of Milan Society, Mahavir Society and other nearby Societies of Kalavad Road, Rajkot and respondent No.2-original complainant is also resident of Milan Society, situated at Kalavad Road, Rajkot.
2.2. The facts reveal that respondent No.2-original complainant has filed a complaint on 12.11.1997 originally against 11 accused persons for the alleged offences under Section 500 of the Indian Penal Code, which came to be registered as Criminal Case No.5143 of 1997 before the Chief Judicial Magistrate, Rajkot. It appears from the record that vide order dated 12.11.1997, JMFC, Rajkot upon verification of the original complainant issued summons to all the accused named in the complaint. It is a matter of record that thereafter, by order dated 15.07.1999 vide Exh:37, Smt.Rasilaben Patel came to be deleted. It further appears from the record of the application that vide application Exh:73 dated 30.03.2000, the complainant gave an application for production of application, which was given by the accused to the Commissioner of Police, Rajkot, on 21.11.1996 and Magistrate passed an order for production of the said application. It further appears from the record of the application that inspite of such an order passed in the year 2000, the said application was not produced by the investigating agency, therefore, an application was filed by the original complainant (Exh:111) with a prayer to direct the Commissioner of Police, Rajkot, to produce the document. It is a matter of record that the said application came to be produced and is part of the record of the complaint being Exh:118, on 30.08.2006.
3. On the basis of the said application Exh:118, respondent No.2-original complainant filed an application being Exh:130 (which is subject matter of the present application) on 17.07.2007, whereby the original complainant prayed for joining the present petitioners including original accused No.6- Smt.Rasilaben Patel, who came to be deleted vide order dated 15.07.1999 passed below Exh:37.
4. It is a matter of record that the present petitioners filed their objections being Exh:141 before the Magistrate, Rajkot on 21.11.2007, however, the Magistrate vide order dated 09.02.2010 was pleased to allow the application at Exh:130 and issued process against the present petitioners.
5. Being aggrieved by the said order dated 09.02.2010, the petitioners preferred Revision Application as provided under Section 397 of the Code before the Additional Sessions Judge, Rajkot, which came to be registered as Criminal Revision Application No.20 of 2010. The Additional District Judge & Presiding Officer, Fast Track Court, Rajkot, vide order dated 07.04.2011 dismissed the said revision application. Being aggrieved by the said order, the present application is filed under Section 482 of the Code.
Respondent No.2-original complainant has filed a reply and has denied the submissions and contentions made in the application and has also relied upon the documents, which are annexed with the affidavit.
Heard Mr.K.B.Anandjiwala, learned counsel for the petitioners, Ms.Moxa Thakkar, learned Assistant Public Prosecutor for respondent No.1-State and Mr.Vajubhai Thoriya, learned counsel for respondent No.2-original complainant.
Mr.Anandjiwala, learned counsel for the petitioners has taken this Court through the factual matrix arising out of the application and has pointed out that both the lower Courts have misread the provisions of Section 319 of the Code. He further submitted that no inquiry or trial has taken place in the criminal case, no evidence is recorded and as such no progress is made in the trial. He further pointed out that the application Exh:130 is given on the basis of the application, which is produced at Exh:118 and contended that the application is premature. He further contended that the Magistrate has not considered the circumstances under which, the application under Section 319 of the Code can be considered by the Court. He further submitted that no names have appeared in the newspaper and there exist no ground to implead the present petitioners as accused in the complaint, which is filed by the original complainant.
9. Learned counsel for the petitioners relied upon the judgment of Apex Court in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors., reported in AIR 1983 (SC) 67 as well as recent judgment of the Apex Court in the case of Sarojben Ashwinkumar Shah & Ors. Vs. State of Gujarat & Anr., being Criminal Appeal No.1554-1557 of 2011 as well as judgment of this Court in the case of Bhagraj Tulsaji Visnoi Vs. State of Gujarat, reported in 2004(1) GLH 494 and submitted that as there is no progress or inquiry, the application Exh:130 filed by the original complainant was not maintainable. He further submitted that as such no offence under Section 500 of the Indian Penal Code is made out. He further submitted that only on the basis of the application Exh:118, the present application Exh:130 has been filed by the original complainant after about 11 years from the date of filing of complaint. He further submitted that the Magistrate as such has given no reasons for coming to the conclusion that the present petitioners are required to be joined as an accused in the complaint and only on the basis of application at Exh:118, the Magistrate has allowed the application Exh:130. He further submitted that even in revision, the Additional Sessions Judge, Rajkot has not considered the provisions of Section 319 of the Code and has mechanically dismissed the revision application on non-germane grounds, hence, to secure the ends of justice and to prevent the abuse of process of Court and law, the present application deserves to be allowed.
10. Ms.Moxa Thakkar, learned Assistant Public Prosecutor for respondent No.1-State has candidly supported the impugned orders passed by the lower Courts.
11. Mr.Vajubhai Thoriya, learned counsel for respondent No.2-original complainant has contended that the application at Exh:118 clearly shows that the petitioners have signed the said application and all the petitioners including original accused No.6 got it published in the newspaper. He contended that respondent No.2-original complainant came to know about the involvement of the present petitioners only when the application Exh:118 was produced by the Police Commissioner, Rajkot. He further contended that the provisions of Section 319 of the Code can be resorted at any stage and therefore, it cannot be said that the application Exh:130 is premature. He further contended that the process is already issued and the trial is on evidence, therefore, it cannot be said that the application Exh:130 was not filed at proper stage. Relying upon the reply filed by respondent No.2 before this Court, it was submitted that respondent No.2 has been harassed by the petitioners including original accused, who are arraigned as accused. He further contended that the complaint was filed in the year 1997 and when there is sufficient evidence of other persons, which was found out later, the petitioners can be joined as co-accused at a later stage. He further submitted that both the Courts below have rightly interpreted Section 319 of the Code and have passed the legal and proper orders.
12. Mr.Thoriya, learned counsel for the original complainant has further contended that all the accused have committed the offence in order to take revenge, with full knowledge have got published the application given to the Police Commissioner, Rajkot with fake contents. He relied upon the reply and has submitted that the petitioners have approached this Court only to prolong the trial. He also relied upon the judgment of the Apex Court in the case of Bholu Ram Vs. State of Punjab & Anr., reported in (2008) 9 SCC 140 as well as in the case of Ram Singh & Ors. Vs. Ramnivas & Anr., reported in 2009(2) GLH 505 and has submitted that the petition deserves to be dismissed.
13. No other or further submissions are made by both the learned counsel for the parties.
14. I have considered the submissions made by both the learned counsel for the parties. I have perused the impugned orders as well as contentions raised in the reply. It would be necessary to note that the application dated 20.11.1996 (Exh:118) was submitted by residents of Mahavir Cooperative Society, Milan Cooperative Society and inhabitance of nearby societies before the Police Commissioner, Rajkot, it transpires from the record of the application that the news item was published in the Gujarati daily Akila as well as Sanj Samachar on 20.11.1996 and respondent No.2 has filed a complaint on 12.11.1997 i.e. after 11 years and 22 days. It appears that thereafter, an application Exh:73 was filed for production of the application given by the accused before the Police Commissioner, which was allowed by the Magistrate.
15. It appears that the said application was not produced for 6 years, hence, another application being Exh:111 was filed by the original complainant in the year 2006 and ultimately an application dated 21.11.1996 filed by the original accused was produced by the Police authorities on 30.08.2006(Exh:118). It appears from the record of the application and as pointed out by learned counsel for both the sides, right from 1996 till date the trial has not begun.
16. It appears from the record of the application that the application Exh:130 was filed on the basis of the application Exh:118. Considering the order passed by the Magistrate, it transpires that the Magistrate has taken into consideration the fact that the present application filed by respondent No.2 for the offence under Section 500 of the Indian Penal Code and the present petitioners are arraigned as an accused, the said fact is to be proved by the original complainant and taking into consideration the said fact at this stage, the application for joining the accused requires to be allowed. On perusal of the order passed in revision application, the Additional Sessions Judge, Rajkot in Paragraph No.11 has observed thus:--
Considering the submission arguments of learned advs. Of both the parties. It appears that the cause of action arising on publishing the defamatory writing of the complainants in daily newspaper Akila and Sanj Samachar then question arise that who had published the said defamatory writing against the complainant? And answer will be received at the relevant time after recording the evidence of both the parties and it is the duty of the complainant to prove that who had published the said defamatory writing in newspaspers and the letter Exh:118 who had written and what is the intention of the author of the letter can be decided at the relevant time after recording the evidence and opportunity given to both the parties and it is decided in the complaint. While, at the initial stage if the application of the respondent-complainant at Exh:130 disallowed and the appellants-proposed accused will not be joined as a party then naturally the complainant will suffer irreparable injury which is not compensated in terms of money and thereby, it is in the interest of the justice to give the chance to the complainant to prove the defamatory writing who had published in the newspaper as alleged by the complainant in the complaint.
17. Section 319 of the Code reads as under:-
Power to proceed against other persons appearing to be guilty of offence.
Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the propose aforesaid.
Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.
Where the Court proceeds against any person under sub-section (1) then -
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person; when the Court took ognizance of the offence upon which the inquiry, or trial was commenced."
18. It clearly transpires from the record of the application that the trial has not begun, no evidence is adduced, no witness is examined and the present petitioners are sought to be joined solely on the basis of the fact that they have signed the application at Exh:118. The Magistrate has also opined that the original complainant will have to prove the same. The Hon'ble Apex Court in the case of Sarojben Ashwinkumar Shah & Ors. Vs. State of Gujarat & Anr., being Criminal Appeal No.1554-1557 of 2011 has observed thus:-
16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this:-
(I) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.
(ii) The power conferred under Section 319(1) applies to all Courts including the sessions Court.
The phrase any person not being the accused occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence sowing their involvement in the offence comes before the Court.
The power to proceed against any person, not being the accused before the Court, must be exercised only where there indicating his involvement in the offence as an accused and not otherwise. The word evidence in Section 319 inquiry contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.
The power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record while sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.
(vi) The Court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.
(vii) Regard must also be had by the Court to the constraining imposed in section 319(4) that proceedings in respect of newly -added persons shall be commenced afresh from the beginning of the trial.
(viii) The Court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.
19. Even considering the ratio laid down by the Apex Court in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors., reported in AIR 1983 (SC) 67, wherein the proceedings were earlier quashed against some of the accused, however, the prosecution adduced further evidence, which satisfied the Court that the other accused and/or those accused against whom the proceedings were quashed has also committed the offence, powers under Section 319 of the Code can be exercised and has observed thus:-
Although we uphold the order of the High Court we would like to state that there are ample provisions in the Code of Criminal Procedure, 1973 in. which the Court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused. In the old Code, Section 351 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused. The Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and Section 319 of the present Code gave full effect to the recommendation of the Law Commission by removing the lacuna which wag found to exist in S. 351 of the old Code......
This provision gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused. This provision was also the subject matter of a decision by this Court in Joginder Singh v. State of Punjab, (1979) 2 SCR 306 : (AIR 1979 SC 339) where Tulzapurkar, J., speaking for the Court observed thus :-
"A plain reading of Section 319 (1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused."
19. In these circumstances, therefore. if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognziace against them and try them along with the other accused. But, we would hasten to add that this is realty an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other. person against whom action has not been taken. More than this, we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents Nos. 2 to 5 will not prevent the Court from exercising its discretion if it is fully satisfied that a case for taking cognizance against than his been made out on the additional evidence led before it.
20. This Court in the case of Bhagraj Tulsaji Visnoi Vs. State of Gujarat, reported in 2004(1) GLH 494 has observed thus:-
12. With this reference when Section 319 of the Code of Criminal Procedure is referred, it is clear that whether in the course of inquiry into or trial of an offence it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence, which he appears to have committed.
Sub-sections (2) (3) and (4) of Section 319 provides for the arrest of such person and the retrial of such person along with the original accused right from the framing of the charge. The material phrase used under Section 319 above is "it appears from the evidence". Therefore, to invoke the powers under Section 319, the first requisite is the existence of evidence to arraign any person as an accused in an inquiry or trial. The meaning of "it appears"
necessarily suggests that it is not enough that the Court entertain some doubt from the evidence about the involvement of another person in the offence. The Court must have reasonable satisfaction from the evidence already collected regarding two aspects, first that the other person has committed an offence and second that for such offence that other person could as well [@page498] be tried along with already arraigned accused. Therefore, in para 13 of the decision cited by learned advocate for the applicant in the matter of Michael Machado v. Central Bureau of Investigation, the Apex Court has held as under:
"In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1 : (AIR 1983 SC 67 : 1983 Cri L J 159) this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the Court that other accused against whom proceedings have been quashed or those who have not arrayed as accused, have also committed an offence in order to enable the Court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned:
But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.' "
21. Mr.Vajubhai Thoriya, learned counsel for respondent No.2 has relied upon the case of Bholuram (Supra) and has invited attention of this Court, more particularly Paragraph Nos.22, 23, 25, 29 and 35 and has contended that powers under Section 319 of the Code can be exercised by the Magistrate, if it appears from the evidence that such person has also committed the offence, for which he can be tried to get to other accused.
22. Considering the facts of the case as well as binding decisions of the Apex Court as well this Court, it appears that the Magistrate has not examined the application Exh:130 as per the guidelines laid down by the Apex Court and similarly has allowed application Exh:130 on the basis of the application Exh:118, which came to be produced by the Police. It is an admitted position that no evidence is lead and the Magistrate had no opportunity to appreciate any evidence as the same is yet to be adduced, and therefore, contentions raised by the petitioners that the application below Exh:130 is premature is well founded.
23. It appears that the Magistrate while passing the impugned order has not taken into consideration necessary aspects before exercising discretion under Section 319 of the Code, as held by the Hon ble Apex Court in the case of Sarojben Ashwinkumar Shah & Ors.(Supra). The ratio laid down by the Hon'ble Apex Court in the case of Bholu Ram (Supra) would not be applicable tothe facts arising in the present case.
24. The Additional Sessions Judge, has also not examined whether the essentials of Section 319 of the Code are in existence or not, and as such, has dismissed the revision application on non-germane grounds as it appears from Paragraph No.11 of the judgment in revision as referred to above.
25. In the result, the present application is accepted, and order passed below Exh:130 in Criminal Case No.5143 of 1997 passed by the JMFC, Rajkot and confirmed the same by Additional Sessions Judge, Rajkot, are hereby quashed. However, it is made clear that during the course of trial, if any evidence is brought either by the complainant or by the prosecution, it would be open for the Magistrate to suo motu exercise his power under Section 319 of the Code and it would also be open for the original complainant to file appropriate application.
26. Resultantly, the present application is allowed. Rule is made absolute. Considering the fact that criminal complaint is pending since 1997, the Trial Court is hereby directed to expedite the proceedings of Criminal Case No.5143 of 1997.
(R.M.CHHAYA, J.) Suchit Page 14 of 14