Tarunendra Bahadur vs State of M.P. and Another

S.K. Pande, J.

Petitioner by Shri S.C. Datt, Senior Advocate.

Respondent/State by Shri A. Mishra, Dy. A.G.

Heard.

Impugned order dated 22-4-1996 passed by 1st ASJ, Sidhi in S.T. No. 95/95 perused.

On the basis of F.I.R. dated 6-4-1995 in Crime No. 154/95 of P.S. Kotwali, Sidhi, accused persons Mangleshwar Singh, Jeetnarayan, Sitasharan, Pushpendra Singh were charge sheeted u/s 302, 201/34, Indian Penal Code in the matter of causing homicidal death of Ramdayal. Surajbhan Sahu, Babulal Sahu were examined by the police during the course of investigation. Their statements u/s 161, Criminal Procedure Code are Annexure II and III respectively. Babulal (P.W.7) was examined in the Court of A.S.J. on 4-4-1996 and in para No.4 said to have been stated that the deceased Ramdayal was beaten by the accused persons, charge sheeted in Crime No. 154/1995 at the instance of petitioner Tarunendra Bahadur Singh alias Babu Singh in his presence. On the basis of this statement (Annexure V), Surajbhan preferred an application u/s 319, Criminal Procedure Code requesting to implead the petitioner as an accused in S.T.No.95/95. Vide impugned order dated 22-4-1996 the application was allowed and petitioner Tarunendra Bahadur Singh s/o Babu Singh, aged 50 years, was directed to be impleaded as an accused to face the trial in the aforesaid Session Trial along with others. This order dated 22-4-1996 has been challenged in this revision on the ground, that there was no material available before the Court on the said date to say that the petitioner Tarunendra Bahadur Singh was present on the spot where Ramdayal was beaten and that the incident was at his instance.

Surajbhan Sahu, who made an application u/s 319, Criminal Procedure Code was examined by the Police on 6-4-1995 (Annexure II) and the eyewitness Babulal was also examined on the same day (Annexure III). In these statements u/s 161, Criminal Procedure Code the witnesses never made a reference of the petitioner Tarunendra Bahadur Singh. For the first time in statement dated 2-4-1996 the presence of the petitioner at the alleged beating by accused persons to the deceased was stated by P.W.7 Babulal. This part of the statement of Babulal, deserves a close scrutiny with reference to cross-examination para 11 that in statement (Annexure III) petitioner was not named by him during the investigation.

Section 319, Criminal Procedure Code reads as under :

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.

The provision u/s 319, Criminal Procedure Code be read with the dictum laid down in Michael Machado and Another Vs. Central Bureau of Investigation and Another, , Michael Machado vs. Central Bureau of Investigation. 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 u/s 319, Criminal Procedure Code. It is stated at the bar that S.T.No.95/95 in the Court of 1st A.S.J. Sidhi, resulted into acquittal as against Pushpendra Singh and Sitasharan vide judgment dated 29-8-1997.

In the light of the aforesaid, the impugned order dated 22-4-1996 passed by the 1st A.S.J. Sidhi in S.T.No. 95/95 allowing application of Surajbhan Sahu u/s 319, Criminal Procedure Code cannot be upheld.

The revision is accordingly allowed, the impugned order is set aside.