Bombay High Court
Shubham Subrato Roy vs State Of Maharashtra on 10 April, 2023
Bench: Amit Borkar
2023:BHC-AS:11073
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.695 OF 2023
Shubham Subrato Roy ... Petitioner
V/s.
The State of Maharashtra ... Respondent
WITH
WRIT PETITION NO.715 OF 2023
Sapna Subrato Roy ... Petitioner
V/s.
The State of Maharashtra ... Respondent
Mr. Irfan A. Shaikh for the petitioner.
Mr. Arfan Sait, APP for the respondent/State.
Mr. J.S. Sapkale, PSI, Dongri Police Station.
CORAM : AMIT BORKAR, J.
DATED : APRIL 10, 2023
P.C.:
1. The challenge in these petitions is to the order dated 3 rd
February 2023, passed by the revisional court, thereby allowing
the revision applications of the prosecution challenging order
passed by the Magistrate rejecting applications of prosecution
under section 319 of the Code of Criminal Procedure, 1973.
2. Since the nature of the controversy and the point involved
are similar, both petitions are disposed of by common judgment.
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3. The father of the petitioner in Writ Petition 695 of 2023 and
the husband of the petitioner in Writ Petition No.715 of 2023 is an
accused of an offence under section 420 of the Indian Penal Code,
1860. The prosecution's case against him is that he defrauded
fourteen persons to Rs.12,20,000/- by luring them into that he
would secure a job for them in railways. The trial against him
proceeded till the examination of six witnesses. During the
examination of witnesses, material indicating the present
petitioner's involvement surfaced; therefore, the prosecution filed
applications below Exhibits-25 and 49 to add present petitioners as
accused along with accused No.1.
4. The trial Court rejected both applications holding that there
is no material to hold that the petitioners dishonestly induced
victims to deliver any property (amount) to any person. The
allegations of dishonest inducement are only against the main
accused and not against the petitioners herein. None of the
witnesses has alleged common intention on the part of petitioners.
5. Based on the statement of witnesses stating that they handed
over the money to the petitioners at the instance of the main
accused, the revisional court allowed the revision application.
6. Aggrieved thereby, the petitioners have filed the present
petition. The learned advocate for the petitioners invited my
attention to the evidence of the witnesses who stated that they
handed over amounts to the petitioners as a material
improvement. In cross-examination, they admitted that despite
such a statement being made at the time of investigation, the
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investigating officer did not record it under section 161 of the
Code of Criminal Procedure. Relying on the judgment in the case
of Hardeep Singh vs State of Punjab and Others, reported in
2014 (3) SCC 92, it is submitted that the evidence on record is
prima facie not sufficient to convict the accused (petitioners). He,
therefore, submitted that the impugned orders deserve to be
quashed and set aside.
7. Learned APP for the state invited my attention to the
statement of witnesses recorded before the Trial Court wherein it
is specifically stated that the petitioner accepted amounts from the
victims. While handing over the amount, the main accused
identified his wife on a cell phone, and after having a conversation
with him, the victim handed the amount over to the wife. It is
stated that before handing over the amount, the petitioners
introduced themselves as the wife and son of the main accused
and after receiving a call from the main accused, the amount was
handed over to the petitioners. Therefore, it is clear that the
material on record is sufficient prima facie to convict the
petitioners.
8. The parameters of exercise of power under section 319 of
the Code of Criminal Procedure are no longer res integra in view
of the Constitution Bench judgment of Apex Court in Hardeep
Singh (supra). Accordingly, in paragraphs Nos.98 and 99, the Apex
Court has delineated parameters for exercising such power under
section 319. Paragraphs Nos.98 and 99 read as under:
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"98. Power under Section 319 Cr.P.C. is a discretionary and
an extra-ordinary power. It is to be exercised sparingly and
only in those cases where the circumstances of the case so
warrant. It is not to be exercised because the Magistrate or
the Sessions Judge is of the opinion that some other person
may also be guilty of committing that offence. Only where
strong and cogent evidence occurs against a person from the
evidence led before the court that such power should be
exercised and not in a casual and cavalier manner.
99. Thus, we hold that though only a prima facie case is to
be established from the evidence led before the court not
necessarily tested on the anvil of Cross-Examination, it
requires much stronger evidence than mere probability of his
complicity. The test that has to be applied is one which is
more than prima facie case as exercised at the time of
framing of charge, but short of satisfaction to an extent that
the evidence, if goes unrebutted, would lead to conviction. In
the absence of such satisfaction, the court should refrain
from exercising power under Section 319 Cr.P.C. In Section
319 Cr.P.C. the purpose of providing if 'it appears from the
evidence that any person not being the accused has
committed any offence' is clear from the words "for which
such person could be tried together with the accused." The
words used are not 'for which such person could be
convicted'. There is, therefore, no scope for the court acting
under Section 319 Cr.P.C. to form any opinion as to the guilt
of the accused."
9. Conspectus of the decision in Hardeep Singh's case (supra),
it is only where strong and cogent evidence occurs against a
person that the power under section 319 can be exercised. The
nature of inquiry is not similar to the inquiry held at the time of
framing of charge but short satisfaction to the extent that if such
evidence goes unrebutted, 'it would lead to a conviction'.
10. In the light of aforesaid principles, I have examined the
material on record. Witness No.1 has stated in his evidence that
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the main accused demanded Rs.1,50,000/- from him in 2017. It
was told to the witness that his wife and son (petitioners) met the
witness as per the direction of the main accused, and he handed
over the amount of Rs.1,20,000/- to the son of the main accused.
11. Witness No.3 also stated that the amount was handed over
to the son of the main accused as per the direction of his father
(main accused). The rest of the witnesses have also stated about
handing over the amount to either son or wife at the instance of
the main accused. Witness No.12 specifically stated that the
amount of Rs.1,60,000/- was handed over to the wife as per the
direction of the main accused after the main accused called on his
wife's cell phone. The wife handed over her cell phone to the
witness, and after identifying her through a cell phone call with
the main accused, the amount was handed over to the wife. The
petitioner (wife) stated to the victim not to worry and assured him
of his job. She also assured that the amount would be refunded in
case of failure to employ the victim. Similar is the statement of
witness No.13. Therefore, on consideration of the overall material
on record, it is clear that if the material against the petitioners
goes unrebutted, there is a strong possibility of conviction of the
petitioners. Hence there is no merit in the petition.
12. At this stage learned advocate for the petitioner seeks a stay
of the proceedings. However, in the facts of the case, no case for a
grant of stay is made out.
13. The writ petitions stand disposed of. No costs.
(AMIT BORKAR, J.)
