Santosh Kumar Nande vs State of Chhattisgarh and Others

Manindra Mohan Shrivastava, J.—Learned State counsel submits that he does not want to file any reply as all the relevant documents are on record.

With the consent of the parties, the matter is heard finally.

This petition has been filed by the petitioner assailing the correctness and validity of order dated 10-5-2011 passed by the Additional Sessions judge, Sakti in Criminal Revision No. 11/08 by which order dated 11-10-07 passed by the Judicial Magistrate 1st Class, Sakti in Criminal Case No. 1412/07 impleading the petitioner as accused in exercise of powers u/s 319 Cr. P.C. has been affirmed.

One Tirith Bai, holding savings account in State Bank of India, branch-Jaijaipur lodged a report in the police station alleging that on approaching the bank on 16-2-05 for withdrawing Rs. 40,000/- from her bank account, she came to know that there was no balance of Rs. 40,000/- and that on 14-1-05, an amount of Rs. 1,10,000/- withdrawn from her bank account. The complaint of Tirith Bai is that she did not go to the bank on that day nor withdrawn any amount and that the officers and employees of the bank have fraudulently withdrawn the amount from her account. When the police did not register any offence, Tirith Bai filed an application before the Magistrate for issuance of direction for investigation u/s 156 (3) CrPC. On direction issued by the Magistrate, police station-Jaijaipur registered offence u/s 420, 467 and 468 of IPC against one Kiran Kumar. After the charge sheet was filed, charges were framed against Kiran Kumar, the petitioner was sited as prosecution witness along with some other prosecution witnesses i.e. Complainant-Tirith Bai, Harish Kumar Chaudhary, Radha Bai and Subhash Kumar. At that stage, the accused Kiran Kumar moved an application u/s 319 of CrPC for impleading the petitioner and Harish Kumar Chaudhary as accused before the Court. Vide order dated 11-10-07, the learned trial Court allowed the application u/s 319 CrPC directing impleadment of the petitioner and Harish Kumar Chaudhary as accused in the case. Aggrieved by the said order, the petitioner preferred a revision which has been dismissed.

Learned counsel for the petitioner contended that the petitioner has been impleaded as accused without affording him any opportunity of hearing, without availability of material evidence that he, in any manner, was involved along with other accused-Kiran Kumar in commission of alleged offence. He submits that the conduct of the petitioner right from the beginning, when it was found that money has been withdrawn from the account of Tirith Bai shows that he had no role to play because it was the petitioner who had written to the higher authorities and had given notice to Kiran Kumar and instrumental in ensuring that the entire amount is deposited in the account of Tirith Bai. He further submits that the powers u/s 319 CrPC could not have exercised as a matter of course but the same is to be exercised under extra ordinary circumstances and for compelling reasons. Learned counsel for the petitioner submits that the evidence of the petitioner, who appears as witness, could not be used to incriminate him against himself and except his own evidence, there is no incriminating material brought about in the evidence of other witnesses to show that the petitioner is also involved in the commission of offence warranting his impleadment as accused. In support of his submission, learned counsel for the petitioner relies upon the decision in the case of M.P. Gangadharan Vs. State S.I. of Police, , Michael Machado and Another Vs. Central Bureau of Investigation and Another, and Mohd. Shafi Vs. Mohd. Rafiq and Another,

On the other hand, learned counsel for the State submitted that initially the charge sheet was filed against the other co-accused-Kiran Kumar. Later on, when prosecution evidence was led in the trial, the complainant-Tirith Bai in her evidence has clearly stated that the petitioner is also involved in the commission of offence and her evidence prima facie reveals that the petitioner, who was In-charge, Manager of the bank, was instrumental in withdrawal of money from her account because Tirith Bai had not gone to the bank on that day, the pass book was not produced nor there is any corresponding entry in the pass book and signatures in the withdrawal form are forged. It is submitted that even the photograph of Tirith Bai was not available and yet such huge amount was permitted to be withdrawn which prima facie shows involvement of the petitioner, who was In-charge of the banking operations in the bank. Learned State counsel further submits that the material evidence collected during the course of trial is sufficient to implead the petitioner as accused because a prima facie case is made out and such impleadment, even at the instance of co-accused is permissible.

The first submission of learned counsel for the petitioner that before impleading him as accused, he was entitled for opportunity of hearing does not appeal to this Court. In the case of Rawoof Patel and Another Vs. State and Another, Ram Kishan Yadav and another Vs. State of M.P., , Rameshchandra Onkarlalji Sharma Vs. State of Madhya Pradesh, Vithalbhai D. Pandya Vs. Central Bureau of Investigation and Others, , it has been consistently held that no opportunity of hearing is required to be afforded. The first submission therefore fails.

The next submission of learned counsel for the petitioner is that the petitioner could not be impleaded as accused as in the present case, the petitioner who was a witness and who deposed regarding incident, has been impleaded by using evidence given by him as a witness of the prosecution. It is submitted that except the evidence of the petitioner, there is no other material evidence available on record to warrant his impleadment as accused in exercise of powers u/s 319 CrPC. From the perusal of the order passed by the Court below and from the perusal of the evidence of other witnesses, it cannot be said that the evidence of the petitioner given as prosecution witness has been used to criminate him and implead him as accused in the case. There is also no substance in the contention that except petitioner''s own evidence as prosecution witness, there is no material evidence available on record collected during the trial which would warrant impleadment of the petitioner as an accused. From the evidence of the complainant-Tirith Bai, who has been examined as PW 1, it is revealed that she has stated that she had approached the petitioner when the petitioner informed her that she had already withdrawn the amount and when she demanded money, the petitioner got annoyed and insisted that she alone had withdrawn the money. She has further stated that there are no entries in the pass book relating to the concerned disputed withdrawals. The prosecution has also produced the withdrawal form (Exhibit P/1) in respect of which, the complainant-Tirith Bai has specifically deposed that it does not bear her thumb impression and she has clearly stated that she did not withdraw the amount from her account. She also deposed that she has not withdrawn the amount of Rs. 1,10,000/- and the Manager of the Bank and Cashier have fraudulently withdrawn the amount from her account. The other witness Harish Kumar Chaudhary (PW 2) has deposed that relevant form and token was placed before the petitioner for passing which was forwarded by the petitioner to his counter whereafter the amount was released after tallying the token and pass book. Therefore, from the deposition of Tirith Bai (PW 1) and Harish Kumar Chaudhary (PW 2), the evidence has come that withdrawal form was passed by the petitioner, there was no entry in the pass book, Tirith Bai never went nor submitted any withdrawal form, her thumb impression on the withdrawal form are forged. Whether the aforesaid evidence is reliable or not, would depend upon the collection of entire evidence by the trial Court and examination of the same. However, it cannot be said that there was no material evidence available on record in the testimony of the prosecution witness other than the petitioner, to warrant his impleadment as accused. The aforesaid evidence and attending circumstances, considering that the petitioner was working as Manager coupled with the allegation of the complainant-Tirith Bai that she never went to the bank, signed on withdrawal form coupled with circumstances that there are no corresponding entries in the pass book, are sufficient to implead the petitioner as accused.

The other submission of learned counsel for the petitioner that his conduct shows that he was not involved in commission of offence, cannot be looked into at this stage to discredit the evidence which has come on record, as observed above. The petitioner has placed on record certain documents along with an application for taking documents on record to substantiate the aforesaid submissions. With the help of the documents which have been placed on record, it has been stressed that when the complainant-Tirith Bai lodged report, the petitioner was instrumental in getting the amount deposited back into her account from the other co-accused-Kiran Kumar and it was the petitioner, who was instrumental in getting the matter enquired into at the departmental level and get the FIR lodged in the police station. In the submission of learned counsel for the petitioner, this conduct of the petitioner shows that the petitioner is nowhere involved in the commission of offence and the evidence which has now come on record, could not be made a basis to implead the petitioner as accused.

True it is that the FIR has been lodged in the police station by the petitioner which is clear from the copy of FIR which has been placed on record as Annexure-A/6. Whether such conduct of the petitioner should raise doubt with regard to the veracity of the evidence of Tirith Bai which has come on record, is in the realm of appreciation of evidence. Pleading such a conduct could certainly be used by the petitioner by way of defence to prove his innocence by impeaching the credibility of the prosecution evidence. However, at this stage of impleadment of the petitioner on the basis of evidence so far collected during trial, the defence of conduct cannot be looked into as that would amount to accepting the evidence as pleaded before this Court and thereby disbelieving the testimony of Tirith Bai and other witnesses. Whether the FIR lodged was a bonafide act or was only with a view to clothe the petitioner with innocence after the fraud surfaced and complaints were made by the complainant calling for enquiry, are all matter to be looked into and appreciated during the course of trial but on that basis, the order impleading the petitioner as accused cannot be said to be illegal or amounting to abuse of the process of law.

The last submission of learned counsel for the petitioner that the power u/s 319 CrPC has been exercised in a casual manner, without due application of mind and as a matter of course, does not appeal to the Court, particularly after having gone through the evidence of complainant-Tirith Bai (PW 1). The impugned order impleading the petitioner as accused shows that the learned trial Court has taken into consideration the submissions made before the Court that from the evidence of Tirith Bai and Harish Chaudhary, the petitioner also appears to be involved in the commission of offence and then on application u/s 156 (3) CrPC, the Court had directed FIR to be registered against the petitioner also. The learned Court below has also arrived to the satisfaction by taking into consideration the documents. Learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Michael Machado (Supra). The peculiar facts of that case were that as many as 49 witnesses were examined and thereafter an order of impleadment of accused was passed in exercise of powers u/s 319 CrPC. it was found that as many as 49 witnesses, who were examined did not utter a single word against the newly impleaded accused. It was found that quite a large number of witnesses were examined and cross examined by the defence and at the fag end of the trial, the Magistrate felt the need to start afresh only because next three witnesses disclosed something against those who were sought to be impleaded with the aid of powers u/s 319 CrPC. Examining the statements of those three witnesses, it was observed that those statements may create some suspicion but suspicion is not sufficient to hold that there is reasonable prospect of convicting the appellants therein of the offence of criminal conspiracy and that a situation has not reached as to waste the whole massive evidence already collected by the trial Court and to re-examine large number of witnesses, 49 in number, who have already been examined and cross examined. The principle of law laid down in the aforesaid decision is that the basic requirements for invoking Section 319 CrPC is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused, had committed an offence for which that person could be tried together with the accused already arraigned and it is not enough that the Court entertained some doubt, from the evidence, about the involvement of any person in the offence. The Supreme Court further observed that the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. It has also been observed that what is conferred on the Court is only a discretion which should be exercised only to achieve criminal justice. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. Referring to its earlier judgment in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, , it was emphasized that it is an extra ordinary power which is conferred on the Court and which should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken and the Court must address itself about the other constraints imposed by the first limb of sub-section (4) of Section 319 CrPC, that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. If the witnesses already examined are quite a large in number the Court must seriously consider whether the object sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, the Court should refrain from adopting such a course of action.

In the other decision cited by learned counsel for the petitioner in the case of Mohd. Shaft (supra), the above legal position has been reiterated, relying upon and re-stating the principle laid down in the case of Municipal Corporation of Delhi (supra). It was held that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned, in all likelihood would be convicted.

If the test, which has been laid down by the Supreme Court are applied to the facts and circumstances of the present case, the stage of trial, number of witnesses examined, keeping in view the interest of criminal justice and also reasonable suspicion, based on evidence collected, regarding petitioner''s involvement in the commission of offence and having gone through the evidence so far collected by the prosecution, particularly that of Tirith Bai (PW 1) and Harish Kumar (PW 2), it is difficult to hold that impleadment of the petitioner and subjecting the petitioner to trial is wholly impermissible u/s 319 CrPC, resulting in an abuse of the process of law. In the result, the petition is found without merit and deserves to be and is accordingly dismissed.

Before parting with the case, it is made clear that the observations with regard to the involvement of the petitioner in the alleged commission of offence is based on the material available and collected so far during trial only for the limited purpose of examining whether impleadment of the petitioner is permissible u/s 319 of CrPC and this Court has not commented on the reliability or veracity of the evidence which has come on record. The other evidence of the prosecution is yet to come, to be followed by statement of the accused u/s 313 CrPC and defence, if any, led by the petitioner. The Trial Court shall decide the case on its own merits based on the material available at the conclusion of trial.