Bombay High Court
Mr. Jafar Sadiq Jan Mohammed vs Police Station Officer, Police ... on 11 March, 2016
Bench: Z.A. Haq
Judgment 1 revn170.14.odt
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.
Judgment 2 revn170.14.odt
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
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-
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
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 -
(a) the proceedings in respect of such person
shall be commenced afresh, and witnesses re-
heard;
Judgment 6 revn170.14.odt
(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
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
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..
