Mrs. Nachal vs State of Tamil Nadu

This revision is preferred by Mrs. Nachal the petitioner herein, against the order dated 9-1-1995 passed in C.C. No. 230 of 1992 on the file of

Judicial Magistrate, Karaikudi, allowing the petition filed by Assistant Public Prosecutor u/s 319 Criminal Procedure Code to implead the

petitioner as one of the accused.

The case in brief is as follows :-

One Seethai Aachi, the complainant has given her daughter in marriage at Amaravathi Pudur. She has friendly acquaintence with one Mrs. Nachal

the petitioner who is a resident of the same village. On her request, the complainant Seethai Aachi gave a loan amount of Rs. 20,000/- to the

petitioner. On 18-8-1990, at about 6.30 p.m., the complainant Seethai Aachi as requested by the petitioner, went to the petitioner''s house and

received back the loan amount of Rs. 20,000/-. Then the petitioner, accompanied the said Seethai Aachi till her residence and came back to her

house. At that point of time, some persons suddenly appeared and threw chilly powder on her face and snatched the cash of Rs. 20,000/- from

Seethai Aachi and ran away. Hence on her complaint, a case was registered, and some days later one Gopal, the accused in this case was

arrested.

In May 1992, charge sheet was filed against him for the offence u/s 392, I.P.C. On 4-1-1995, PW-1, the complainant was examined before the

trial Court. During the course of deposition, she mentioned that at the time of snatching of the cash by the accused, she called the name of Nachal.

Immediately thereafter, Learned Assistant Public Prosecutor filed a petition u/s 319 Criminal Procedure Code requesting the Court to implead the

petitioner as one of the accused, for the reason that her name was not only mentioned in the deposition of PW-1 but also in the FIR and statements

u/s 161 Criminal Procedure Code. On this basis, on the every same day, the learned Magistrate passed an order allowing the petition stating that

PW-1 deposed in the Court that the petitioner was present at the place of occurrence that the petitioner''s name is also mentioned in the FIR., as

well as in statements u/s 161 Cr.P.C. The order of learned Magistrate is as follows :

On the basis of this order, summons was issued to the petitioner. On receipt of the summons, the petitioner has resorted to file this revision before

this Court.

Mr. Ramesh, learned counsel for the petitioner took me through the memo filed by the Assistant Public Prosecutor and the order passed by the

learned Magistrate and contended that the order is not sustainable in law, since the Magistrate cannot invoke Section 319 Cr.P.C. to implead any

other person as accused, on the basis of FIR and statements u/s 161, Cr.P.C. He also contended that even in the deposition of PW-1, there is no

incriminating material found available against the petitioner to enable the Court to implead the petitioner as an accused. In support of his

submissions, he cited several authorities, to show that the order passed by the Magistrate is not valid in law and is liable to be set aside.

Mr. Babu Muthu Meeran, learned Government Advocate has countered the submissions made by the petitioner''s counsel.

I am of the view that the order passed by the Magistrate on 4-1-1995 is liable to be set aside on the simple and substantial ground which would

be given as follows :-

Admittedly in the charge sheet filed by the police with reference to the complaint made by PW-1, the petitioner was not cited as an accused.

Originally the chargesheet was filed against the single accused by name Gopal. The learned Magistrate also took cognizance of the case with single

accused, as he was convinced that in respect of the said Gopal there is material found available against him in the investigation, conducted by the

investigating agency to connect him with the commission of the crime. But now the Magistrate though it fit to implead the petitioner as one of the

accused, invoking Section 319, Cr.P.C. on the basis of the memo filed by the Assistant Public Prosecutor, in view of the deposition of PW-1

mentioning the name of the petitioner. The question that arises for consideration now in this case is whether the Magistrate can invoke Section 319,

Cr.P.C. to implead the petitioner as an accused, on the basis of the Statements u/s 161, Cr.P.C. FIR and the evidence adduced by the

prosecution witness No.

Section 319(1), Cr.P.C. provides as follows :-

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."" So, this section gives power to the Magistrate to implead any person not being the accused in the case and

proceed against such person along with others, provided the evidence against him is found available. In the instant case, the Magistrate has not only

relied upon the evidence adduced by PW-1 in the deposition but also has considered the statements u/s 161, Cr.P.C. and FIR.

The evidence adduced u/s 319, Cr.P.C. means, evidence recorded during the course of inquiry, before the Court and the statement recorded

by the police during interrogation by investigator does not constitute an evidence. For the purpose of invoking Section 319, Cr.P.C. neither

statements u/s 161 of the Code recorded by investigator nor the contents in the FIR can be treated as evidence.

The words ""it appears from the evidence"" and the last few words employed in the above sub-section viz., ""appears to have committed,"" clearly

demonstrate the requirement of full satisfaction of the trial Magistrate with the available legal evidence against a third party, not arrayed as an

accused in the trial before him. From the language employed in the above section, it is made clear, that the power vested with the Court to add any

other person as accused any try together with the other accused before the same Court, can be exercised only on the legal evidence adduced

available during the enquiry trial. This sub-section does not confine to a particular body or person either by way of complainant or accused or

whatsoever. To say more clearly, what all required for the trial Court to invoke its power under this section, is the availability of legal evidence, to

implicate any person other than those who were already arrayed as accused, upon which, the Court must have satisfied that from the evidence the

said persons also would have committed the offence. However, it does not mean, that evidence is necessary to prove the guilt of such persons

beyond all reasonable doubt for the purpose of enquiry or trial as contemplated under this Section.

The word ""evidence"" is defined u/s 3 of the Evidence Act.

Evidence"" - ""evidence"" means and includes -

(1) all statements which the Court permits or required to be made before it by witnesses, in relation to matters of fact under inquiry; such

statements are called oral evidence :

(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.

The word ""evidence"" as defined in Section 3 means and includes statements made before the Court by witnesses in relation to fact under enquiry

and documents produced for inspection.

The ""evidence"" u/s 319(1) Cr.P.C., for the formation of opinion for proceeding against a person not being an accused is the evidence brought

on trial. Therefore the ""evidence"" produced at the inquiry or trial will not include statements made to police u/s 161, Cr.P.C., and the materials

collected during the investigation. It is true that the word ""evidence"" is used in Sections 173(8) and 226 Cr.P.C. But the evidence mentioned in

those sections is not the evidence recorded during inquiry or trial and it refers only to materials collected during investigation. They are not

described as evidence during the enquiry or trial as contemplated u/s 319(1) Cr.P.C., but states otherwise. The use of the word ""evidence"" in

Sections 173(8) and 226 Cr.P.C. could only be the result of legislative inadvertance, and the evidence available, or materials collected during

investigation are not items of evidence coming within the scope of Section 319(1) Cr.P.C., Those provisions cannot have the effect of including

police statements within the meaning of ""Evidence"" in the course of any inquiry or trial mentioned in Section 319(1) Cr.P.C.

Thus, it is clear, that Section 319, Cr.P.C. which is an enabling provision, can be invoked only if the evidence surfaces in the course of inquiry

or trial disclosing the complicity of a person or persons other than person or persons already arrayed as accused before Court. So in the light of

the above principles, I have no hesitation, to hold that the complicity of the petitioner, as mentioned in the statement u/s 161, Cr.P.C. and FIR

cannot be taken into consideration as evidence as mentioned in Section 319(1) Cr.P.C.

While interpreting Section 319(1), Cr.P.C. the Apex Court in Nisar and Another Vs. State of U.P., has held as follows at page 2119 :-

As regards the second contention of the appellants, it must be said that in view of the plain and unambiguous language of Section 319 of the

Code, the earlier quoted reason which weighed with the High Court in sustaining the order of the learned Judge is patently incorrect. The power

u/s 319(1) can be exercised only in those cases where involvement of persons other than those arraigned in the charge-sheet comes to light in the

course of evidence recorded during the enquiry or trial.

In yet another decision in, Kishun Singh and Others Vs. State of Bihar, the Court has observed as follows :-

The sweep of Section 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of

an inquiry or trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it ..... Now as pointed

out earlier Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of

an inquiry or trial ....... Once the purport of S. 319 is so understood it is obvious that the scope of the operation or the area of its play would also

be limited to where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of

evidence recorded at the inquiry or trial.

In the light of the above interpretation, laid down by the Apex Court, I am of the opinion that the Magistrate ought not to have taken into

consideration the statement u/s 161, Cr.P.C. and FIR to implead the petitioner as an accused.

Now the next question that arises for consideration is whether the reference about the presence of the petitioner at the place of occurrence and

her complicity in the Crime, found available in the evidence given by PW-1. While PW-1 was examined, in chief she has stated that as per the

request of the petitioner. Nachal, she went to the house of Nachal and received the amount of Rs. 20,000/- towards the repayment of loan amount

and then she came back to the house of her daughter and that Nachal accompanied her till she reached the house and then she left, that at that

point of time, one person threw chilly powder on her face and snatched the cash bag and ran away and that thereafter she cried calling the name of

Nachal. But the appraisal of the order of the Magistrate show, that a memo has been filed by the Assistant Public Prosecutor stating that the

petitioner was present at the time of occurrence. PW-1 did not state that petitioner was present. So this is factually wrong. While the accused

Gopal snatching the cash bag from the complainant. PW-1 merely cried calling Nachal. The Act of calling Nachal, by her name, would never be

construed to be an incriminating material against the petitioner Nachal. As such there is no material whatsoever available in the evidence of PW-1

in the form of deposition in chief before the Court to enable the Magistrate to invoke the power u/s 319(1) Cr.P.C. to implead the petitioner as an

accused.

In view of the above situation, I feel that the Magistrate ought not to have passed an order u/s 319, Cr.P.C. to implead the petitioner as one of

the accused in the absence of any material. As such the order passed by the Magistrate is not sustainable in law and the same is liable to be set

aside and accordingly set aside.

It is hereby further clear, that in the course of further deposition made by PW-1 or any other witnesses if any material is brought out through

them against the petitioner in the further hearings the Magistrate is well within his powers to issue summons against the petitioner. With this

observation, this revision is allowed.

The learned counsel for the petitioner brought to my notice, that the occurrence had taken place in the year 1990, that the trial had commenced

in the year 1992 and the matter was pending for more than four years. Hence I direct the Magistrate to give top priority in disposing this matter.

The Registry is directed to send back the records forthwith.

Revision allowed.