Sakhybai Ramdhan Jadhav and Others vs The State of Maharashtra

A.V. Potdar, J.—Rule. Rule made returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission itself.

By the present application, the applicants have questioned the correctness of the order dated 29.03.2010 passed by Additional Sessions Judge, Kandhar, in Sessions Case No. 35/2008 thereby directing to add the present applicants as accused in the said case, by invoking the powers vested in the said Court u/s 319 of the Code of Criminal Procedure.

Heard learned Counsel for the applicants followed by learned APP also perused the impugned order.

Learned Counsel for the applicants, by drawing my attention to the impugned order, urged that the trial court has committed an error while passing the impugned order on the basis of statements of the witnesses recorded during the investigation and evidence in the trial is yet to commence. It is further urged that it is the pre-requisite condition to invoke the provisions of Section 319 of the Code of Criminal Procedure, that certain facts have to come on record during the evidence and admittedly that stage has not yet came and hence the impugned order is premature and hence requires to be quash and set aside.

In this respect, it may be useful to refer the observations of the Apex Court, in Ranjit Singh Vs. State of Punjab, wherein it is observed thus -

Power of Court of Sessions to array a new person or persons as accused u/s 319, cannot be invoked prior to evidence collection stage. There is No. power except that in Section 319 by which Court of Sessions can array a new person as an accused. Hence, there is No. intermediary stage at which Court of Sessions can add to the array of accused. Till the stage of Section 230 is reached, Sessions Court can deal only with the accused referred to in S. 209. Bur Court purporting to act u/s 319 need not wait till the entire evidence has been collected. If however, the Sessions Judge notices from the materials produced the positive involvement of any person, he can invoke the inherent or revisional power of the High Court to summon such a person before the evidence State. It is the 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 Sessions. The material placed before the committal Court cannot be treated as evidence collected during inquiry of trial.

Similar view has been taken by this Court in "NIlkanth Krishna Thakre v. State of Maharashtra" 2005 (1) Bom.C.R. (Cri) 389 and in "Amit Anand Nare v. State of Maharashtra" 2006 (2) Bom.C.R. (Cri.) 723.

In the instant case also the evidence in the trial is not yet commenced and the application was filed by the prosecution on the basis of the facts disclosed in the FIR and the statements of the witnesses so also the impugned order is passed before commencement of trial. As pointed out above, the power to pass an order u/s 319 of the Code of Criminal Procedure can only be exercised after something is revealed during recording of evidence in the trial. In the premise, according to me, there is substance in the submissions advanced by learned Counsel for the applicant that the impugned order is premature and therefore unsustainable in law. Consequently, the impugned order is hereby quashed and set aside. The application is allowed in terms of prayer clause "B". Rule is made absolute as indicate above.

It is hereby clarified that though the impugned order is quashed and set aside, yet the same has been quashed being premature and the right of the trial Court has not been taken away to pass requisite order u/s 319 of the Code of Criminal Procedure, if the trial Court thinks it appropriate, after recording of the evidence during the trial.