Rohit Yadav vs State Of Madhya Pradesh

The applicant has filed this criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 26/10/2018 passed in S.T. No.50/2018 by 2nd Additional Sessions Judge, Bina, Distt. Sagtar whereby learned trial Court took cognizance against the applicant under Section 193 of Cr.P.C. and arrayed him as co-accused and issued process for his appearance.

The facts giving rising to this revision, in short, are that in connection of Crime No.67/2018 registered at Police Station, Bhangarh, Bina, Distt. Sagar, after investigation, charge sheet came to be filed against accused-Udayraj and Harpal for the offence punishable under Sections 436, 323, 294, 506 read with Section 34 of IPC before the Court of  JMFC, Bina, Distt. Sagar registered as Criminal Case No.397/2018. Since the offence under Section 436 of IPC is triable by Sessions Court, therefore, the case committed vide committal order dated 05/10/2018 to the Court of Session for trial from where the case transferred to 1st ASJ, Bina for trial. On 26/10/2018 on the basis of documents filed by the prosecution along with charge sheet, learned Sessions Judge found that the applicant was in complicity with the offence committed by other co-accused after elaborate discussion on that point invoked the power enshrined under Section 193 of Cr.P.C. took cognizance against the applicant and arrayed him as an accused thereafter issued notice for his appearance vide order dated 26/10/2018.

Being aggrieved by that order, the applicant has filed this criminal revision on the ground that the impugned order is illegal and liable to be set aside. There is no material available on record to constitute ingredients of any offence against the applicant. There is no material on record to create the hope of reasonable prospect of conviction of the applicant and there is no other provision to justify taking cognizance against the applicant at this stage, therefore, prays to set aside the impugned order.

Learned Public Prosecutor for the respondent/State while opposing the aforesaid prayer submits that there is sufficient material available against the applicant for taking cognizance. Learned trial Court, on the basis of the material available on record, has taken cognizance against the applicant, therefore, the trial Court has not committed any legal error in framing the charge. In these premises, he prays for dismissal of the revision.

Heard learned counsel for the parties and perused the documents filed along with the revision.

On perusal of the impugned order dated 26/10/2018, it is apparent that after committal of the case and before framing charge, learned Sessions Court took cognizance against the applicant on the basis of oral and documentary evidence collected during investigation, meaning thereby on the basis of the documents filed along with charge sheet, this Court finds that there is sufficient material against the applicant to be arrayed as co-accused and for taking cognizance under Section 193 of Cr.P.C. It is also apparent from the documents filed along with this revision that the applicant was named in the documents collected during investigation, but, the Investigating Officer on the basis of plea of alibi not arrayed the applicant as an accused. Learned trial Court based its order on the basis of judgment delivered by the Constitution Bench of Hon'ble Apex Court in the case of Dharam Pal and others Vs. State of Haryana and another, (2014) 3 SCC 306.

Hon'ble Apex Court in the case of Dharam Pal and others (supra) in para-37 and 38 has categorically held that the Court is competent to take cognizance under Section 193 of Cr.P.C. before the trial commenced. Meaning thereby if trial commences by framing the charge against the applicant, then the Court cannot take cognizance under Section 193 against any new arrayed accused, but, the Court is empower to act under Section 319 of Cr.P.C. on the basis of evidence recorded during trial.

Constitution Bench of Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92, while considering the case of Constitution Bench of Hon'ble Apex Court in the case of Dharam Pal and others (supra) in para-53 and 54 has held as under :

"53. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the Court, the power under Section 319 CrPC cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB). The dispute therein was resolved visualising a situation wherein the Court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 CrPC is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 CrPC confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it.

In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the Court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliverately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the state of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC."

Learned counsel for the applicant has placed reliance on the decision of Hon'ble the Apex Court in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) 7 SCC 706.  On perusal of the said decision, it is apparent that in that case law Hon'ble Apex Court discussed the category of evidence on which cognizance can be taken under Section 319 or Cr.P.C. for arraying a person as co-accused who has not been charge sheeted along with other co-accused. In that case after framing charge learned trial Court recorded the statement of 23 witnesses and on the evidence adduced by those witnesses took cognizance against the applicant under Section 319 of Cr.P.C., in that situation, Hon'ble Apex Court, after discussing the matter, not found that the appellants of that case were in complicity with the other co-accused and allowed the appeal by quashing the order of summoning the appellant under Section 319 of Cr.P.C. The facts of the present case are different to that case as in that case learned trial Court took cognizance under Section 319 of Cr.P.C., however, in the present case, the trial Court took cognizance under Section 193 of Cr.P.C. before framing the charge.

On the basis of forgoing discussions, this Court does not find that learned Sessions Court was not competent to take cognizance against the applicant and arrayed him as co-accused by invoking provisions enshrined under Section 193 of Cr.P.C. The name of applicant has been mentioned in the FIR as well as in other statement recorded during trial. The Investigating Officer, on the basis of plea of alibi that at the time of incident the applicant was not present on the spot, not charge sheeted applicant along with other co-accused persons. Learned trial Court considered that at the best it may be a defence at the stage of trial, however, on the basis of other papers and statement of other witnesses, the applicant was found in complicity with other co-accused for committing offence. At the time of taking cognizance, material should not be discussed on merit. If there is material available on record for taking cognizance against any person in connection with commission of any offence, the Court is empowered to take cognizance. Thus, this Court does not find any illegality, irregularity and perversity in the impugned order.

Accordingly, the revision is devoid of merit and the same is hereby dismissed.