Manfool vs State of M.P. and Another

D.K. Paliwal, J.—This revision petition has been preferred under Sections 397, 401 of Cr.P.C. against the order passed by J.M.F.C. Vidisha in Case No. RT 942/2011 dated 17.07.2012, whereby an application filed by Brijesh u/s 319 of Cr.P.C. has been allowed and the petitioner has been impleaded as an accused. Brief facts of the case are that complainant Narayan Bai has lodged a report against the petitioner and co-accused Brijesh alleging that petitioner Manfool and Brijesh caught hold of her, took her forcibly and Brijesh has committed rape with her and petitioner Manfool has pressed her breast. Petitioner has submitted an application before the DSP Harizan Kalyan, Vidisha, upon which the statements of the victim and her father were recorded and they have not made any allegation against the petitioner. After investigation charge sheet has been filed before the J.M.F.C. Vidisha on 16.06.2011 only against Brijesh. Thereafter, co-accused Brijesh has preferred an application u/s 319 of Cr.P.C. praying that petitioner be made an accused in the case which has been allowed by the impugned order. Being aggrieved, the petitioner has preferred this revision petition.

It is submitted by the learned counsel for the petitioner that J.M.F.C. Vidisha has committed illegality in allowing the application filed by co-accused Brijesh. No application has been moved either by the victim or by the prosecution. Therefore, cognizance taken by J.M.F.C. against the petitioner is illegal. It is further submitted that only on the basis of charge-sheet on application u/s 319 of Cr.P.C., no cognizance can be taken against any person. It can only be taken after recording of the evidence of prosecution. The prosecution has not led any evidence, therefore, impugned order suffers from illegality.

Learned Public Prosecutor supported the impugned order submitting that petitioner has been named in the F.I.R. and the allegation has also been specifically made against him, therefore, J.M.F.C. Vidisha has not committed any illegality in passing the impugned order.

I have considered the rival submissions of the learned counsel for the parties.

From the bare perusal of impugned order, it is evident that it has been clearly mentioned that final report against petitioner Manfool has not been submitted because father of the victim has submitted an application before D.S.P. Harizan Kalyan, Vidisha, alongwith his affidavit that Manfool has not committed any incident with his daughter. Admittedly, charge-sheet was not filed against the petitioner. It is also not disputed that learned J.M.F.C. has not recorded any evidence.

Section 319 of Cr.P.C. reads as under : -

Section 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 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 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 cognizance of the offence upon which the inquiry or trial was commenced.

On a plain reading of sub-section (1) of Section 319 there can 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. This power can be exercised only if it so appears from the evidence at the trial and not otherwise. The material placed before the committal court cannot be treated as evidence collected during inquiry or trial.

The Hon''ble Apex Court in the matter of Ranjit Singh Vs. State of Punjab, observed in para 9, 19 and 20 as under :-

Now it is well neigh 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 inquiry or trial.

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.

In the matter of Sarabjit Singh and Another Vs. State of Punjab and Another, , it has been held that power u/s 319 of Cr.P.C. can be exercised on the basis of fresh evidence and not on the material collected during investigation.

In view of the above settled legal position, in my opinion, the learned Magistrate was not empowered to take cognizance u/s 319 of Cr.P.C. against the petitioner. The learned Magistrate has committed an illegality in passing the impugned order. Consequently, the revision petition is allowed. Impugned order dated 17.7.2012 is set aside.