Kamlesh Sahu vs State of M.P.

V.C. Maheshwari, J.

Applicant has preferred this revision u/s 397/401, Criminal Procedure Code against the order dated 13-12-2004 passed by Judicial Magistrate, First Class, Deori, District Sagar (M.P.) in Criminal Case No. 139/03 whereby applicant has been impleaded as an accused suo motu by invoking the power of section 319 of Criminal Procedure Code (for short ''the Code'') without examining any witness of prosecution, hence this revision.

It is an undisputed fact that Gourjhamer police has submitted a charge-sheet in the trial Court against some accused except the applicant regarding offence under sections 147, 148, 149, 323, 324, 427 and 506-B of Indian Penal Code with u/s 25/27 of the Arms Act. The said Court at initial stage, when the prosecution has not examined any of the witnesses in support of its case only on the basis of evaluation of the charge-sheet suo motu by invoking section 319 of Code has taken cognizance against the applicant under sections 452, 324/149, 147, 427 and 506, Indian Penal Code and impleaded him as an accused along with other accused. Therefore, this revision is preferred on the ground that before recording any statement of the prosecution witness mere on the basis of evaluation of the charge-sheet provision of section 319 of the Code could not be invoked for impleading to applicant as an accused but by brushing aside the provision the impugned order has been passed and to secure the presence of applicant a bailable warrant was also directed against him.

Having heard the respective parties, and having perused the impugned order and the averments made in the revision memo, I am of the view, that at this stage, this revision deserves to be allowed.

Counsel for the applicant submitted that before recording the statements of any prosecution witnesses Sub-section (1) of section 319, Criminal Procedure Code could not be invoked and refer the section which reads as under:

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.

And in support of his contention he placed his reliance on some Apex Court decisions.

While, other hand, counsel for State submitted that on evaluation of the charge-sheet in entirety the trial Court has rightly taken the cognizance against the applicant and by referring some papers of said charge-sheet prayed for dismissal of this revision.

On considering the aforesaid submissions, I have found that the cognizance against the applicant was taken before recording the statements of the prosecution witnesses and as such it was taken at premature stage as observed in the following dictums of the Apex Court.

In the matter of Raj Kishore Prasad Vs. State of Bihar and another, , in which it was observed as under:

S/Shri K.B. Sinha and H.L. Aggarwal, learned counsel appearing on opposite sides, have heavily dwelt upon Kishun Singh and Others Vs. State of Bihar, , to contend, that on plain reading of sub-section (1) of section 319, there could be no doubt, that it must appear from the evidence tendered in the course of any inquiry or trial, that any person not being the accused, has committed any offence, for which he could be tried together with the accused, and that the said power could be exercised only if it so appears from the evidence adduced at the trial and not otherwise. Since that stage has not arrived in the instant case it is maintained that section 319 is inapplicable. This is obviously correct. Nowhere has any evidence been recorded to invoke section 319 of the Code. In the aforesaid case, this Court has ruled that sub-section (1) of section 319 contemplates existence of some evidence appearing in the course of trial, wherefrom the court can prima facie conclude, that the person not arraigned before it, is involved in the commission of the crime, for which he can be tried with those already named by the police. Even a person who had earlier been discharged was spelled out to fall within the sweep of the power conferred by section 319 of the Code. Therefore, this Court''s view was crystallized is that in stricto sensu, section 319 of the Code cannot be invoked in a case where no evidence had been led at a trial, wherefrom it can be said that the accused, other than the one facing trial, appears to have been involved in the commission of the crime.

At the subsequent occasion again this aspect was considered by the Apex Court in the matter of Ranjit Singh Vs. State of Punjab, which is a three Judges Bench decision in which it was observed in paras 9, 19 and 20 as under :

Now it is well-nigh settled that "evidence" envisaged in section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a Court of Session. The material placed before the committal court cannot be treated as evidence collected during enquiry or trial (vide Raj Kishore Prasad v. State of Bihar).

So from the stage of committal till the Sessions Court reaches the stage indicated in section 230 of the Code, that Court can deal with only the accused referred to in section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused.

Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers u/s 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.

This question was again considered by the Apex Court in the matter of Tek Narayan Prasad Yadav v. State of Bihar reported in 1999 SCC (Cri) 356 in which it was held as under :

Criminal Procedure Code, 1973, sections 319, 193 and 209 Power of Sessions Court to add an accused. Held, Sessions Court is competent to issue process against a person who is not charge-sheeted u/s 193 after having begun the trial and having recorded some evidence of the prosecution. (From Placitum)

Although, on behalf of the State some decisions of the High Court were submitted but in view of the Apex Court dictum those are not necessary to consider and explain in this order.

In view of the aforesaid factual circumstances of the case at hand and in view of the aforesaid dictum of the Apex Court, even on a different occasion, it is apparent that the trial Court has committed a grave error in passing the impugned order to implead the applicant as an accused in the case, at premature stage before recording the statement of any prosecution witness, as such the impugned order deserves to be and is hereby set aside and the applicant is discharged at this stage. But however, the trial Court would be at liberty to consider this aspect after recording some of the or entire evidence of the prosecution if the circumstances of the case warrant as mentioned u/s 319 of Code without influencing any observations made in this order.

Revision stands allowed.