Petitioner was not named either in FIR or in Section 161 Cr.P.C. statement of witnesses, It could not be said that there were no prospects of conviction of petitioner in the case

MADHYA PRADESH HIGH COURT

Before :- Subhash Samvatsar, J.

Criminal Revision No. 427 of 2004. D/d. 13.10.2004.

Sunder Singh - Petitioner Versus State of Madhya Pradesh - Respondent

For the Petitioner :- Shri Pradeep Kumar, Advocate.
For the Respondent :- Shri M.P.S. Bhadoriya, Government Advocate.
For the Complainant : - Shri V.K. Saxena, Sr. Advocate.

Cases referred :
Michael Machado & another v. Central Bureau of lnvestigation & another, 2000 SCC (Cri.) 609.
Uma Shankar Singh Panwar & another v. State of M.P., 2002(2) MPLJ 69.

Duryodhan & others v. State of M.P., 2001 (1) MPLJ 318.

Tarunendra Bahadur v. State of M.P., 2004(1) MPWN 28.

Ranjit Singh v. State of Punjab, 1998 SCC (Cri.) 1554.

ORDER
Subhash Samvastar, J. - This revision is filed by the accused challenging order dated 20.5.2004 passed by Additional Sessions Judge, Gohad District Bhind in Sessions Trial No. 102/2002, whereby the Court below has allowed the application filed by the prosecution under Section 319 of Code of Criminal Procedure (Cr.P.C. for short) and directed to arraign the present petitioner as accused in the said case.

2. The brief facts of the case are that a criminal case is filed against Sitaram, Ramniwas, Vedram on the complaint lodged by one Munnalal for committing offence under Sections 307, 302/34 of Indian Penal Code (I.P.C. for short). Munnalal lodged the report at 10.30 AM on 24.2.2002 that his younger brother Rajendra Singh was working in his field. The field of Sitaram and Vedram is adjacent to the field of Rajendra Singh and there is a narrow lane bifurcating the two fields. Bharat and Vasudeo who were relatives of the complainant were also present there. On the boundary of the field some cow- dung cakes were kept, which were owned by Sitaram. Bharat and Vasudeo removed those cow-dung cakes and placed it in the field of Sitaram, which gave rise to the quarrel. Ramniwas who was having 12 bore gun in his hand, Sitaram was having a Katta in his hand, Vedram was having a Farsa in his hand and Shriniwas was having a lathi in his hand attacked Vasudeo and others. Sitaram tried to fire gun shot, but Vasudeo caught hold his hands and he could not fire. Vedram gave a farsa blow to Vasudeo, which caused injury on his head. Ramniwas has fired by Katta, which caused injury to Bharat in his leg, thereafter Bharat fell down. Shriniwas gave a lathi blow on the back of Vasudeo. In the meanwhile, Sunder Singh, Sobran Singh, Rammurthi reached the spot and after seeing them, the accused persons ran away from the spot. Bharat died due to gun shot injury. A report of this incident was lodged to the police station and Crime No. 29/2002 was registered against the accused persons.
3. During investigation, police recorded the statements of witnesses namely Munnalal, Sunder Singh, Vasudeo, Rajendra Singh, Rammurthi and Mamta widow of Bharat under Section 161, Cr.P.C. These witnesses in their statements under Section 161, Cr.P.C. has supported the case of prosecution. The police, therefore, filed challan against the accused persons for committing offence under Sections, 307, 302/34 IPC. The matter was committed to the Sessions Court. During the sessions trial, Mamta widow of Bharat was examined as PW-1. In her statement before the Court, she has alleged that the present petitioner has fired gun shot, which caused death of Bharat Singh. On the basis of her statement, prosecution has filed an application under Section 319, Cr.P.C. for joining the accused as a party. This application is allowed by the impugned order. Hence, this revision.
4. Shri Pradeep Katare, learned counsel for the present petitioner urged that present petitioner was cited by the police as eyewitness. In the F.I.R. and statement under Section 161, Cr.P.C. the name of present petitioner is not mentioned as accused. In fact, there are no allegations against him on the contrary his presence is shown as one of the eyewitness. He further submits that Mamta has joined hands with the accused persons and therefore she has given said statement to help the accused persons and has falsely implicated the present petitioner. Hence, said application under Section 319, Cr.P.C. cannot be allowed by the Court.
5. For supporting his arguments, counsel for petitioner has relied on number of the judgments including the judgment of Hon'ble Apex Court in the case of Michael Machado & another v. Central Bureau of lnvestigation & another, 2000 SCC (Cri.) 609, Uma Shankar Singh Panwar & another v. State of M.P., 2002(2) MPLJ 69, Duryodhan & others v. State of MP & another, 2001 (1) MPLJ 318, Tarunendra Bahadur v. State of M.P., 2004(1) MPWN 28.
6. After perusing the aforesaid judgments, I find that the judgment passed in the case of Michael Machado (supra) is the basic judgment in the field. As regards other judgments are concerned, they have relied on the judgment passed in the case of Michael Machado (supra). The Hon'ble Apex Court in the case of Michael Machado (supra) has considered the scope of Section 319, Cr.P.C. reads as under :

"319. Power to proceed against other persons appearing to be guilty of offence.- (1) 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.

(2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) 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.

(4) Where the Court proceeds against any person under sub-clause (1) then :-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses reheard;

(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 cognizance of the offence upon which the enquiry or trial was commenced."

7. The Hon'ble Apex Court in its judgment has laid down that the basic requirements for invoking Section 319, Cr.P.C. is that it should appear to the court from the evidence collected during trial or in the enquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as be tried along with the already arraigned accused. The Hon'ble Apex Court has further held that it is disrection power conferred upon the court, which should be exercised only to achieve justice. It is not that the court should turn against any other persons 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, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons. The Court should also satisfy from the evidence that the other accused against whom proceedings have been quashed or those who have not been 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. The Court while deciding whether to invoke the power under Section 319, Cr.P.C. of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses reexamined. The whole proceedings must be recommended from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number of court must seriously consider whether the objects sought to be achieved by such exercise. Court should examine whether said exercise is worth to achieve the ends of justice or whether said exercise would be waste the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in being convicted of the offence concerned. If there are no prospects of conviction, then court should not allow such application and reopen the entire case.
8. In view of aforesaid judgment of Hon'ble Apex Court, if I examine the present case, only one witness Mamta is examined in this case. Thus, recording of evidence is at initial stage, Mamta in her statement has specifically alleged that present accused has fired gun shot, which caused death of deceased Bharat. There is no other evidence on record at this stage.
9. The evidence recorded prior to committal order is not admissible at the stage of trial as has been held by the Hon'ble Apex Court in case of Ranjit Singh v. State of Punjab, 1998 SCC (Cri.) 1554, in which the Apex Court has held that evidence under Section 319, Cr.P.C. is the evidence tendered during the trial of the case, if the offence is triable by a Court of Sessions. The material placed before the committal Court cannot be treated as evidence collected during enquiry or trial. In view of the matter, the statements of other witnesses recorded at the time of commit trial cannot be considered. At this stage, other witnesses are yet to be examined and it is quite possible that they may depose against present petitioner. In such circumstances, the only evidence available on record is the statement of PW-1 Mamta. In whose statement she has clearly impleaded the present petitioner as accused. The facts in the Supreme Court case are quite distinguishable on this point. In the case of Michael (supra) as many as 49 witnesses were already examined and none of them has deposed against newly added arraigned accused. This situation is not in the present case. Hence, at this stage, it cannot be said there are no prospects of conviction of present petitioner in the present case.
10. In the result, revision fails and is dismissed.

Revision dismissed.

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