Shankerendu Nath Mukherjee vs The State of Madhya Pradesh

N.K. Gupta, J.—Heard the learned counsel for the parties.

The petitioner has preferred the present petition under Section 482 of the Cr.P.C. against the order dated 31.3.2009 passed by the learned JMFC, Niwas in criminal case No. 114/2000, whereby the application under Section 319 of the Cr.P.C. filed by the respondent No. 2 Motilal was accepted and case for offence under Sections 419, 420, 467, 468 of IPC is registered against the petitioner and arrest warrant was also issued against him.

The prosecution''s case, in short, is that, in between the year 1997 to 1999, the respondent No. 2 Motilal after wearing the uniform of forest officer, obtained fees from various villagers that the respondent No. 2 was assigned with the work to create forest security committee and environment committee and therefore, he collected the huge amount. Villagers gave a complaint to various authorities like SDM, Mandla and SHO, Police Station Niwas. Ultimately, after investigation, a charge-sheet was filed against the respondent No. 2. The respondent No. 2 after completion of prosecution evidence, has submitted an application under Section 319 of the Cr.P.C. to implead the petitioner to be a party in the case and the learned JMFC accepted the application.

The learned counsel for the petitioner has submitted that the case was registered in the year 1999 and the charge-sheet was filed in the year 1999. Thereafter, the respondent No. 2 kept silence for so many years and when the case was fixed for examination of the accused under Section 313 of the Cr.P.C. then, he moved an application to make the petitioner to be a party in the case and the learned JMFC without passing any speaking order, allowed the application filed by the respondent No. 2.

For consideration of application under Section 319 of the Cr.P.C., the trial Court was expected to use its judicial discretion. It is to be examined as to whether there is sufficient evidence to implicate a stranger as an accused. In this connection, the judgment passed by Hon''ble the Apex Court in case of Sarojben Ashwinkumar Shah etc. Vs. State of Gujarat and Another, may be referred, in which various previous judgments were considered and held that power conferring upon the Court is although discretionary but, is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence then, such person can be added as an accused. In the present case, the learned JMFC did not pass any speaking order. It is mentioned that the application was filed by the respondent No. 2 and it was accepted with the pretext that sufficient basis was available. However, what was the basis for allowing the application is not mentioned by the learned JMFC in the impugned order. The crime was registered in the year 1999 and various witnesses had given a written complaint to SDO, SDO (Police), Niwas, in which no name of the petitioner was mentioned relating to collection of money. All the witnesses who are examined before the trial Court were examined by the police. They did not state a single word against the petitioner in their case diary statement. It is true that some of the witnesses like Satish (P.W.11) have stated that the petitioner was a person in whose direction, the respondent No. 2 had collected the fees. It is strange that Satish did not inform about such a fact to the police when his case diary statement was recorded. Possibility cannot be ruled out that now he is telling a falsehood to help the respondent No. 2. If he had an information that the petitioner was also present with the respondent No. 2 at the time of collection of money then, he could tell such a fact to the police and police would have done the supplementary investigation and the charge-sheet would have been filed under Section 173(8) of the Cr.P.C. but, Satish and such witnesses kept silent for 10 years and thereafter, they are now implicating the petitioner. Possibility cannot be ruled out that to make the case dilute against the respondent No. 2, the respondent No. 2 had procured such evidence of such persons. Under such circumstances, the testimony of the witnesses Satish etc. cannot be prima facie believed.

For accepting the application under Section 319 of the Cr.P.C., there should be sufficient evidence on record, so that charges may be framed against that implicated accused. In the present case, there is no evidence against the petitioner collected by the police. Except 2-3 witnesses, none has said about the presence of the petitioner at the time of collection of money. Under such circumstances, the testimony of 2-3 witnesses who have deposed new fact after 10 years cannot be believed prima facie and there is no sufficient evidence before the trial Court so that any of the charge can be framed against the petitioner for which the case is registered under Section 319 of the Cr.P.C. At present, case is closed after 10 years and it is fixed for examination of the accused and therefore, at this stage, no permission can be granted to reopen the case or to dilute the case against the respondent No. 2. The learned JMFC without application of judicial mind, passed the impugned order, which cannot be maintained.

On the basis of the aforesaid discussion, the petition filed by the petitioner under Section 482 of the Cr.P.C. appears to be acceptable and consequently, it is hereby accepted. The impugned order dated 31.3.2009 passed by the learned JMFC, Niwas in criminal case No. 114/2000 is hereby set aside. The trial Court is directed to proceed with the trial Court, without implicating the petitioner as an accused.

Interim stay order is consequently vacated.

Copy of the order be sent to the trial Court for information and compliance.