Amit Kumar Mathur vs State (U.T. Chandigarh)

V.S. Aggarwal, J.—The present petition has been filed by amit Kumar Mathur directed against the order passed by the learned Additional Chief Judicial Magistrate, Chandigarh. By virtue of the impugned order the learned trial Court had acquitted accused Mohinder Singh but held that sufficient grounds were made out to summon the petitioner as an accused. Notice was directed to be issued to him. The petitioner seeks quashing of the said order.

The relevant facts giving rise to the present petition are that Vishnu Parshad is injured complainant. In his complaining statement he recites that he works as a domestic servant with a lawyer. On 31 -3-1990 at about 10.30 A.M. he was going on a bicycle to drop his friend. The complainant was sitting on the carrier of the cycle. After he had crossed Sector 10 and turned towards Sector 3, they were stopped by C.R.P. guard. A car was coming from the side of Sector 3. They stopped. In the meantime, an ambassador car of white colour came from the side of Sector 4/9 and hit him on the back side. The car driver who was a young boy of fair complexion ran away. After sometime, he stopped. His name was Amit. The complainant was injured. This led to registration of a case for rash and negligent driving.

Report u/s 173 Cr.P.C. was filed against one Mohinder Singh. The name of the petitioner had been kept in column No. 2. After the trial, the learned Additional Chief Judicial Magistrate held that there was no evidence against Mohinder Singh and he was acquitted but from the statement of Vishnu Parshad and Barinder Kumar the trial Court held that sufficient ground was made out to summon the petitioner. Hence, the impugned order followed.

Learned counsel for the petitioner assails the said order, primarily on the ground that in the facts of the case Section 319 Cr.P.C. was not attracted because the petitioner could not be tried jointly with Mohinder Singh. The learned counsel further argued that keeping in view the bar of limitation, cognizance could not be taken u/s 190 Cr.P.C. and in either event there was no evidence by virtue of which the petitioner could be summoned as an accused. On the countrary the learned State counsel appearing for Union Territory, Chandigarh urged that there was no bar of limitation and that there was material before the Court to summon the petitioner while acting u/s 319 Cr. P.C.

Section 319 of the Code of Criminal Procedure gives the powers to the Court to proceed against other person who appears guilty of the offence. The relevant provisions of Section 319 Cr. P.C. are being reproduced below for the sake of facility :-

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 inquiry into, or trial of, the offence which he appears to have committed.

(4) 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 witness 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 inquiry or trial was commenced.

As one glances through the above provisions, it is clear that if in the course of the enquiry or trial, it appears that any person who is not an accused has committed the offence for which he could be tried together with the accused, the Court can proceed against such person for the offence which he appears to have committed. Sub-section (4) of Section 319 further makes the position clear that the case will proceed against such person as if he was an accused when the Court took cognizance of the offence. Before provisions of Sub-section (1) of Section 319 Cr. P.C. can be attracted, the condition precedents are that findings must be recorded based on material evidence that a person who is not an accused has committed any offence and secondly such person could be tried together with the accused. It is the second condition referred to above which is pressed in the first instance. The expression "tried together with the accused" certainly show that the act should have been in concert or association with the accused. It should not be mutually exclusive. If the act was not in concert or association with the other person, in that event the rigors of Section 319(1) Cr. P.C. will not be attracted because those persons cannot be tried together. This conclusion necessarily has to be arrived at because of section 223 of the Code of Criminal Procedure. The said provision deals with the situation where certain persons can be charged and tried together. If persons because of the same offence which has been committed in the course of the same transaction, they can be jointly charged and tried. Can we say in the facts of the present case that petitioner had committed the same offence with Mohinder Singh in the course of the same transaction?

The answer would be in the negative. This is for the reason that the charge against Mohinder Singh was for the offences punishable under Sections 279/337 and 338 IPC. It necessarily implies that it pertained to rash and negligent driving. The rash and negligent driving would be by the individual. It can only be shared where the persons would act in association. There is no scope for there being a common intention to commit such an offence. It is not even the case of the prosecution that there was any such criminal conspiracy. At best it could be that either petitioner or Mohinder Singh was driving the vehicle. Being so they could not be tried together because the act of one would exclude the other. In that event Sub-section (1) of Section 319 Cr. P.C. has no role to play.

Learned counsel appearing on behalf of Union Territory, Chandigarh pointed that in any case u/s 190 Cr. P.C. the Court could take cognizance of the offence on basis of the evidence before it. Sub-section (1) of Section 190 Cr. P.C. unfolds itself as under :-

190(1). Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person than a police officer; or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

The above said provisions clearly show that the Court can take cognizance when a complaint is received which constitute an offence or upon a police report. The Court can also take cognizance upon information received from any person. It could be based on his own knowledge that such offence has been committed. Indeed the Court could take cognizance on basis of the material evidence that was appearing before it. But the power under Sub-section (1) of Section 190, Cr. P.C. would be subject to the said provisions of the Code of Criminal Procedure. Sub-section (1) of Section 468, Cr. P.C. imposes a bar on the Court to take cognizance after lapse of the period of limitation. The said provision is being reproduced below for the sake of facility :-

468(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.

It is clear that the period of limitation where the offence is punishable up to 3 years, is three years. The said period of limitation has to run from the date of the offence because here the commission of the offence was known to the person aggrieved by the offence and it was not a case where it is not known as to by whom the offence was committed. Here was a case where even in the first information report, the name of the petitioner had been mentioned. The prosecution cannot fall back on Section 469(1) (b) and (c) of the Code of Criminal Procedure. Being so that period of limitation had expired by the time the Court had taken cognizance. In other words, if it be assumed that the Court had taken cognizance u/s 190, Cr. P.C, the embargo of Section 468, Cr. P.C. would come into play. There is no application for extension of the period of limitation and, therefore, the Court indeed could not take cognizance u/s 190, Cr. P.C.

Be it as it may, even if we scan through the evidence recorded by the trial Court, it is patently clear that a case for summoning the period indeed was not drawn. After the first information report had been recorded, the matter was investigated by � the police. It had been found during investigation that it was Mohinder Singh who was driving the vehicle on the relvant date. The present petitioner was recorded to be simply sitting in the vehicle. Challan was submitted only against Mohinder Singh. During the course of trial, the statement of Vishnu Parshad complainant was recorded on oath. Copy of the same is Annexure P-3. Perusal of the statement as would be noticed hereinafter would reveal that complainant Vishnu Parshad himself was fumbling and faultering as to who was the driver of the vehicle. In his examination-in-chief he stated :

On 31-3-90 at about 10-30 a.m. I along with Bom Bahadur were going on cycle towards Sector-3 from Sector 10. The cycle was being driven by Bom Bahadur. I was sitting on the carrier. When we reached near the CRPF barrier of Sector 3, CRPF official gave an indication to us to stop and accordingly we stopped. We were standing on the right side of the road and when CRPF official gave us indication to move and in the meanwhile from the Sector 9 a Car No. HR-0021 white colour came at a very high speed and stuck against my right leg. The car was being driven by accused whose name is Amit Mathur.

He refused to identify Mohinder Singh who was driving the vehicle. He was cross-examined by the Assistant Public Prosecutor. Thereupon he stated :-

On 31-3-1990 when the occurrence took place and that time accused Mohinder who was driving the said car affected a compromise with me.

During the cross-examination by counsel for Mohinder Singh, he again took a somersault and stated that it was the petitioner who was driving the vehicle. The other evidence came in the form of Varinder Kumar PW-5. We was the C.R.P.F. guard on duty on the barrier. Barinder Kumar stated that it was Mohinder Singh who was driving the vehicle. In his own statement he stated :-

The accused present in the Court, at that time, was driver of Ambassador car. We sent the injured persons to hospital for treatment.

During cross-examination even he retraced the statement and stated that in his police statement he had named the petitioner as the driver. But again added "It is incorrect that the accused was not driving the car and the same was driven by a boy of fair complexion."

On evaluation of the said evidence it is clear that though the learned trial Court while summoning the petitioner acted on the testimonies of these witnesses, still the evidence of both the witnesses is not worth the name. In one breath they name Mohinder Singh as the driver but in the same breath they state that it was the petitioner who was driving the vehicle. It is inconsistent and incompetent evidence. It would be a folly to act on such testimonies and to state that there was material to proceed against the petitioner. On either count, therefore, the order of the learned trial Court could not be sustained.

For these reasons, the petition is accepted. The impugned order passed is quashed.