Ran Vijay Pratap Singh vs State

G.B. Singh, J.—These 8 connected revisions are directed against the order dated 17.9.81 passed by the Judicial Magistrate, Sundial Hardee summoning the revisionists u/s 319 of the Code of Criminal Procedure.

The facts which gave rise to these 8 revisions may be, briefly, narrated here.

Pan Vijay Pratap Singh, who has filed Criminal Revisions No. 586 to 589 of 1981 was Block Development Officer Sundial Hardee from the year 1967 to 1970. Sunder Lai Vishwakarma who has filed Criminal Revisions No. 602 to 605 of 1981 was posted as Assistant Development Officer, Sundial District Hardee from March 1968 to 1970. Vikas Narain Srivastava who is facing trial before the Judicial Magistrate Sundial Hardee for various offences, was posted as Village Level Worker Circle Lumamau Tahsil Sandila District Hardee, during that period under the two revisionists. Taqavi loans in the shape of fertilizers and seeds were distributed to the agriculturists in the aforesaid circle in the year 1969-70 by the said Village Level Worker. The application for granting such loans was verified by Shri Vikas Niacin Srivastava Village Level Workers, Gram Pradhan and the Lekbpals of the villages of the agriculturists. It appears that certain applications and distributions of Taqavi loans on them was found take'' and it was brought to the notice of the authorities that tamari loans were not given to the persons whose names were recorded in the papers and in whose names the applications were obtained and verified. The signatures on these applications of the Inanes and in the registers maintained in this connection were forged. On receiving this information Ran Vijay Pratap Singh BDO made enquiry from Vikas Nation Srivastava V.L.M. and on being satisfied that there was substance to it, he reported the matter to the District Planning Officer on 25.2.70. It appears that on that application the SDM Sandila was appointed by the District Magistrate Hardee vide his order dated 3.9.70 to enquire into the matter and on enquiry it was found that there was embezzlement of fertilizers and seeds by Vikas J Narain Srivastava V.L.W. Ran Vijay Pratap Singh was, therefore, directed to lodge a report vide the letter dated 8.10.70 against Vikas Narain Srivastava v. L.W. In compliance with that letter the BDO lodged a written report dated 9.10.70 at Police Station Sandila In this report he mentioned that Vikas Narain Srivastava committed misappropriation of the tamari loan to the extent of Rs. 8394-61 paisa and he committed forgery and false verification in that connection. He further mentioned in this report that Hari Nath Singh, Vishwanath Singh and some others assisted in committing these offences. The BDO, therefore, prayed that a case Under Sections 409, 406, 120B and 419 of the Indian Penal Code may be registered against them. On that report a case was registered at Police Station Sandila on 14.10.70 against Vikas Narain Srivastava, Han Nath Singh and some others. Another report was ado lodged against Vikas Narain Srivastava V.L.W. by Kan Vijay Pratap Singh BDO on the allegation that chemical fertilizers and seeds worth Rs. 3522.U4 paisa have not been accounted for and he has disapprove pirated them also On that report a separate case u/s 409 IPC was registered against Vikas Narain Srivastava After investigation four charge-sheets were submitted. In the Criminal Case No. 481 of 1980 Vikas Narain Srivastava is standing trial for the offences Under Sections 468, 471, 420 IPC. Charge-sheet in this case was submitted on 2.9.73. In Criminal Case No. 360 of 198u Vikas Narain Srivastava, V.L.W. Motley and Sukh Darshan are facing trial for the offences Under Sections 120B, 409, 420, 465, 467, 468 and 471 IPC. In this case the charge-sheet was submitted on 3.5.73. The third case is Criminal Case No. 3b9 of 1980. In this case charge-sheet was submitted on 7.5.83 and Visha Nath Singh is standing trial lot the offences Under Sections 420, 466, 467, 468 and 471 IPC. The fourth case is Criminal Case No. 195 of 1970. In this case the charge-sheet was submitted on 7.5.73 and Hari Nath Singh is standing trial for the offences Under Sections 420, 466 and 471 IPC.

In the aforesaid four criminal cases the evidence was recorded and the statement of the accused was taken down. It seems that in Criminal Cases No. 481 of 1980 and 369 of 1980 Vikas Narain Srivastava V.L.W. stated that applications were verified by him at the ins''aD Ce of BDO and he is, therefore, also involved in the case. Hari Nath Singh in Criminal Case No. 195 of 1980 has also stated in his examination as an accused that the amount has been misappropriated by the BDO. On the basis of this statement and certain rules regarding distribution of tamari loans the learned Judicial Magistrate held that there is evidence against Ran Vijay Pratap Singh BDO and Sunder Lai Vishwakarma ADO showing that they committed the offences for which Vikas Narain Srivastava and others are being tried and he, therefore, summoned them u/s 319 Code of Criminal Procedure by passing separate orders in all the four cases oh 17.9.81. Feeling dissatisfied with this order Ran Vijay Pratap Singh has filed four Criminal Revisions No. 586, 587, 588 and 589 of 1981 and Sunder Lai Vishwakarma has filed the other four Criminal Revisions No. 602, 603, 604 and 605 of 1981.

In the order dated 17.9.1981 summoning these two revisionists u/s 319 Code of Criminal Procedure reasons given are almost the same, though passed separately. All the 8 revisions can, therefore, be conveniently disposed of by a single judgment.

It was vehemently argued by the learned Counsel for the revisionists that there is no evidence against the revisionists justifying the order for summoning them u/s 319 Code of Criminal Procedure. Learned Government Advocate, on the other hand argued that there is evidence against the revisionists and this they have been rightly summoned u/s 319 of the Code of Criminal Procedure and the revisions have no substance. In my opinion, the argument of the learned Counsel for the revisionists has much force and it must prevail.

The relevant portion of Section 319 Code of Criminal Procedure is given below:

319(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

A perusal of the above reproduced provision shows that the Court can proceed against any person under this section it there is some evidence to show that some person has committed an offence to which the Court can take cognizance and in the absence of any such evidence, such person cannot be summoned as a co-accused. The word '' evidence '' has not been denned in the Code of Criminal Procedure It has been the subject-m�tier ol judicial interpret station in some of the cases. It has been held in Harish Chandra v. State to U.P., 1982 AWC 95 that:

In any case, I cannot ignore the fact that the word '' evidence '' in the setting in which it has been used in Sub-section lid) of Section 319, cannot mean anything except the evidence adduced during the trial of the case. "It was also held in this case that the word '' evidence '' occurring in Sub-section (1) of Section 319 of the Code of Criminal Procedure does not include the case diary and the material placed in the case diary cannot be evidence in the case till it is proved by the evidence during the trial. In another case Hukamram v. State of Rajasthan 1952 CriLJ 2341 (ivajasthan) it was held that the police statement recorded u/s 61 to the Code to Criminal Procedure cannot be treated as '' evidet.ee '' tore the purpose of Section 319 of the Code of Criminal Procedure. It has been further observed in this case that the expression '' evidence'' as used m Section 319 Code of Criminal Procedure means evidence recorded '' by the Sessions Judge in the trial and neither statements of witnesses recorded by the police u/s 161 Code of Criminal Procedure nor statements recorded u/s 164 Code of Criminal Procedure nor statements recorded u/s 202 Code of Criminal Procedure can be treated as '' evidence '' for the purposes of Section 319 of the Code of Criminal Procedure. In Section 3 of the evidence Act, the definition of the word '' evidence '' shows that it means and includes statements of the witnesses recorded and the documents produced before the Court. It is, therefore, clear that action can be taken u/s 319 of the Code of Criminal Procedure when on the basis of evidence recorded or produced during inquiry or trial it appears that the person summoned has committed an offence for which the inquiry or trial is taking place, 9. Before taking up the point, if there was any evidence against the revisionists it would not be inappropriate to mention that in Mohan Wahi Vs. State (Central Bureau of Investigation), New Delhi, , it has been held that before summoning a person as an accused u/s 319 Code of Criminal Procedure the Court should be satisfied prima facie on the basis of the evidence on record that the person summoned is involved in the offence. Apart from this, in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, , the following observations were made in regard to the exercise of the power u/s 319 of the Code of Criminal Procedure:

This provision gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused. This provision was also the subject matter of a decision by this Court in Joginder Singh and Another Vs. State of Punjab and Another, where Tulzapurkar, J., speaking for the Court observed thus:

A plain reading of Section 319(1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.

In the circumstances, therefore, if the prosecution can at any stage produce evidence which satisfied the Court (emphasis supplied) that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist tore taking cognizance against the other person against whom action has not been taken, (emphasis supplied).

Keeping in view the principles laid down in the aforesaid cases, if the material on which the learned Magistrate relied upon in summoning the revisionists is considered, it becomes clear that the impugned order is not just and legal and it must be quashed. The first circumstance on which he placed reliance is the statement of Vikas Narain Srivastava Y.L.W. and Hari Nath Singh accused who stated that Ran Vijay Pratap Singh was also involved in the misappropriation. The statement of these two accused was recorded u/s 313 Code of Criminal Procedure. It has been held in Vijendrajit Ayodhya Prasad Goel v. State of Bombay 1953 CriLJ 1097 (SC) that the ; statement of the accused recorded u/s 342 (now 313) Code of Criminal Procedure cannot be regarded as evidence and conviction of the accused cannot be based merely on his statement. Similarly in a case State of Maharashtra Vs. Dr. R.B. Chowdhary and Others, , it has been held that although a statement of an accused u/s 342 Code of Criminal Procedure can be taken into consideration in an enquiry or trial, it is not strictly evidence in the case, it was also observed in this case that when an accused offers hams If as a witness in the case and gives evidence on his own behalf, his statement can be read as evidence proper. It is, therefore, clear that the statement of the accused recorded u/s 313 Code of Criminal Procedure cannot be taken as evidence within the meaning of Section 319 Code of Criminal Procedure. Thus, the statement of the accused involving Ran Vijay Pratap Singh B.D.O. could not, therefore, be taken into account. The other circumstance is non-observance of certain tamari rules by the revisionists. Learned Magistrate has further observed in his order that Ran Vijay Pratap Singh exceeded the sanctioning limits in granting tamari loans to the agriculturists and he did not take into account the cuttings and over-writings in the application forms while granting that tamari loans and Sunder Lai Vishwakarma A.D.O. made recommendations on these forms without making proper enquiries into the matter. These observations do not indicate that the two revisionists miss-appropriated any amount in connection with Taqavi loans or made any forgery or cheating. There is no statement of the aforesaid accused that the two revisionist abetted or conspired with the accused in commission of these offences. The Magistrate also did not make any observation to that effect in the impugned order. The Rules and G.O. referred to by the learned Magistrate are Rules 27, 32, 33(a), 152(c) and 153 of U.P. Taqavi Rules 1942 and G.O. dated 29.9.66 issued Under Rule 155 of U.P, Taqavi Rules. These rules and G.O. clearly indicate that all the preliminaries in connection with disbursement of Taqavi loans were to be completed by V.L.W. with the help of Lethal and Pradhan etc. of the village and the B.D.O. was sanctioning authority. The circumstances enumerated by the learned Magistrate at the most indicate that the B.D.O. and A.D.O. were not vigilant enough in connection with the sanction of the tamari loans but for that they cannot be held guilty for the offences charged against the accused. As regards exceeding sanction limit Ran Vijay Pratap Singh B.D.O. clearly alleged in his revision petitions that he did not exceed the limit up to which he could sanction tamari loan. In this connection he has filed G.O. dated 11.7.68 which amends G.O. dated 26.9.66 and shows that he had an authority to sanction tamari Joan up to the extent of Rs. 750/- instead of Rs. 250/-. None of the agriculturists was sanctioned tamari loans exceeding this limit. This allegation of the revisionist was not controverter on behalf of the State by filing any counter affidavit. In view of this fact the ground that the B.D.O. exceeded the maximum limit in sanctioning the tamari loans disappears. The other ground that he being sanctioning authority did not make proper enquiries before sanctioning tamari loan, does not indicate that he was actually involved in the offence. The manner in which he started making enquiry into the matter as soon as it was brought to his notice that some bungling had been done in disbursement of tamari loan and lodged the report against the accused clearly indicate that his so-called involvement in the offence is based on mere surmises. It may also be added that Ran Vijay Pratap Singh is the main witness in the case. In such cases it generally happens that the accused tries to involve the main witness of the prosecution as a co-accused so that he may not be successfully prosecuted. In view of this also the statement of the accused implicating the B.D.O. could not be taken into account. Learned Counsel for this revisionist pointed out certain facts to indicate the background in which he was summoned by the learned Magistrate after an incident regarding his appearance as a witness in the case. It seems that 24.02.81 was fixed for evidence of Ran Vijay Pratap Singh but he failed to appear on that date though he appeared on several dates prior to it. Due to his non-appearance on that date wireless was issued and then non-boilable warrant was issued against him and is that connection certain facts against the learned Magistrate were brought to the notice of the Administrative Judge of this Court. Thereafter he appeared as a witness on 13.3.81 and after the close of evidence and statement of the accused u/s 313 Code of Criminal Procedure he was summoned as an accused on 7.9.81. On the basis of these facts it is difficult to hold that the impugned order was motivated. However, it is clear from the above discussion that the material relied upon by the learned Magistrate was not evidence against the revisionists to show prima facie their involvement in the offences charged and there were no satisfactory reasons for taking cognizance against them.

From what has been observed above, it is clear that the revisionists were wrongly summoned u/s 319 Code of Criminal Procedure and the impugned order is liable to be quashed. Criminal Revisions No. 586, 58/, 588, 589, 602, 603, 604 and 605 of 1981, are therefore, allowed and the order dated 17.9.81 summoning the two revisionists is quashed. The Magistrate shall proceed with the trial against the accused who were facing trial before him and shall dispose it of at an early date as the matter is pending since long.