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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 170 OF 2014
Mr. Jafar Sadiq Jan Mohammed Gilani,
aged about 40 years, Occupation :
Agriculturist, R/o. State Bank Square,
Post : Yeotmal, District : Yeotmal
ig .... APPLICANT.
// VERSUS //
1. Police Station Officer,
Police Station, Wadgaon,
Distt. Yeotmal.
2. Mr. Ambadas Mahadeo Thool,
Age 50 years, Occupation : Farmer,
R/o. Pangadi (Kodezari), Kalam,
Distt. Yeotmal.
.... NON-APPLICANTS
.
______________________________________________________________
Shri Shantanu S. Khedkar, Advocate for Applicant.
Shri S.S.Doifode, A.P.P. for Non-applicant No.1.
Shri R.B.Gaikwad, Advocate for Non-applicant No.2.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : MARCH 11, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
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2. RULE. Rule made returnable forthwith.
3. The applicant has filed this revision application challenging the order passed by the learned Special Judge, allowing the application (Exh.35) filed by the prosecution praying that the Court may proceed against the applicant for the offences which appear to have been committed by him in view of the evidence which has come on record.
4. Five persons are being prosecution on the charge of commission of offence punishable under Sections 147, 148, 325 r/w.
147, 506 r/w 147 of the Indian Penal Code and the offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The trial proceeded and witnesses are examined.
The prosecution filed application (Exh.35) under Section 319 of the Code of Criminal Procedure contending that the statement of the complainant and the evidence of Ramesh Chandrabhan Malande, Hiraman Shamrao Lonkar, Uttam Chandrabhan Malande and Gautam Mahadeo Thul show that the present applicant was involved in the ::: Uploaded on - 23/03/2016 ::: Downloaded on - 31/07/2016 08:36:40 ::: Judgment 3 revn170.14.odt crime and therefore, the Court should proceed against him for the offences which appear to have been committed by him. The learned Special Judge, by the impugned order, has allowed the above application. The applicant, being aggrieved in the matter, has filed this revision application.
5. Shri Shantanu Khedkar, learned advocate for the applicant has submitted that the impugned order is not proper and legal and the learned Special Judge has erroneously exercised the jurisdiction under Section 319 of the Code of Criminal Procedure and therefore, it has to be set aside. In support of his submission reliance is placed on the following judgments :
i) Judgment given in the case of Kailash Vs. State of Rajasthan, reported in AIR 2008 SC 1564;
ii) Judgment given in the case of Sarabjit Singh Vs. State of Punjab, reported in AIR 2009 SC 2792;
It is prayed that the impugned order be set aside and the application (Exh.35) be dismissed.
6. Shri S.S. Doifode, learned A.P.P. has pointed out the evidence of P.W. 3-Gautam Thul, P.W. 4-Ramesh Malande and P.W. 1-
::: Uploaded on - 23/03/2016 ::: Downloaded on - 31/07/2016 08:36:40 :::Judgment 4 revn170.14.odt Ambadas Mahadeo Thul and has submitted that all these witnesses have deposed that the applicant was present along with other accused at the time of commission of the offence and had actively participated in the offence by giving threats and abuses to the complainant. Relying on the judgment given by this Court in the case of Sambhaji vs. State of Maharashtra, reported in 2008 CRI.L.J. 1123, it is submitted that the Court has power to proceed against any person if evidence comes on record, prima-facie showing the involvement of such person in the offence. It is submitted that the learned Special Judge has properly exercised his jurisdiction and the impugned order is proper and does not require any interference by this Court in the revisional jurisdiction.
7. Shri R.B.Gaikwad, learned advocate for the non-applicant No.2 has submitted that initially the applicant had filed application under Section 482 of the Code of Criminal Procedure before this Court praying for quashing the first information report, however, the prayer of the applicant for quashing the first information report is not granted by this Court, but he is granted protection. It is submitted that though the applicant was not arrayed as accused at the time of filing of the charge-sheet, the evidence on record shows his involvement in the offence and in any case the evidence of record shows that the applicant ::: Uploaded on - 23/03/2016 ::: Downloaded on - 31/07/2016 08:36:40 ::: Judgment 5 revn170.14.odt has to be prosecuted for the offences punishable under Sections 147 and 148 of the Indian Penal Code.
8. In the judgment given in the case of Kailash Vs. State of Rajasthan (supra) the Hon'ble Supreme Court has examined the power of the Court conferred by Section 319 of the Code of Criminal Procedure. In paragraph 9 of the judgment it is recorded as follows :
"9. The powers under Section 319 Cr.P.C. to proceed against any person who is not the accused are couched in the following words :
"319. Power to proceed against other persons appearing to be guilty of offence. (1) 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.
(2) Where such person is not attending the court he may be arrested or summoned as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the court proceeds against any person under sub-section (1) then -
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(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced."
A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are "it appears from the evidence"...."any person".... "has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Criminal Procedure Code would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Criminal Procedure Code has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands."
In the judgment given in the case of Sarbjit Singh (supra) the Hon'ble Supreme Court has again laid down the tests which are ::: Uploaded on - 23/03/2016 ::: Downloaded on - 31/07/2016 08:36:40 ::: Judgment 7 revn170.14.odt required to be applied while exercising the jurisdiction under Section 319 of the Code of Criminal Procedure. The proposition which can be culled out from the above judgment is that while resorting to the provisions of Section 319 of the Code of Criminal Procedure, the Court should be satisfied that some offence has been committed by the person against whom the Court intends to proceed and the satisfaction has to be on the basis of the evidence on record. It is laid down that the standard while invoking the jurisdiction under Section 319 of the Code of Criminal Procedure is higher and the Court has to be convinced that the evidence on record against the person against whom it intends to proceed is such which may reasonably lead to his conviction. The Hon'ble Supreme Court has cautioned that the jurisdiction under Section 319 of the Code of Criminal Procedure should be exercised sparingly and in an extraordinary case.
9. The learned Special Judge has not dealt with the matter in consonance with the proposition laid down in the above referred judgments and the higher standards which are required to be applied to form the opinion to summon the applicant as an additional accused are not applied by the learned Special Judge. The evidence on the record is not of such a nature that it can be said that in the present ::: Uploaded on - 23/03/2016 ::: Downloaded on - 31/07/2016 08:36:40 ::: Judgment 8 revn170.14.odt case the jurisdiction under Section 319 of the Code of Criminal Procedure is required to be exercised.
The judgment given in the case of Sambhaji Vs. State (supra) is not on the issue which is required to be considered in the present case. The applicant has not raised any challenge to the power of the Court to proceed against him but the challenge is on the point that the evidence on record is not sufficient to enable the Court to proceed against him under Section 319 of the Code of Criminal Procedure.
10. I find that the impugned order is unsustainable and has to be set aside.
Hence, the following order :
i) The impugned order is set aside.
ii) The application (Exh.35) filed by the non-applicant No.1 is
dismissed.
iii) Rule is made absolute in the above terms.
iv) In the circumstances, the parties to bear their own costs.
JUDGE
RRaut..
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