Radhe @ Radheshyam Pandey vs The State Of Madhya Pradesh
2022 Latest Caselaw 2427 MP

          1              Criminal Revision No.467/2022
        Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

               HIGH COURT OF MADHYA PRADESH
                      GWALIOR BENCH

                               SINGLE BENCH

                       JUSTICE G.S. AHLUWALIA

                    Criminal Revision No. 467 of 2022

               Radhe @ Radheshyam Pandey and others
                                 Vs.
                    The State of Madhya Pradesh

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Shri J.S. Rathore, Counsel for the applicants.
Shri C.P. Singh, Counsel for the respondent/State.
Shri Purshottam Rai, Counsel for the complainant.
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Date of Hearing                              : 15/02/2022
Date of Judgment/Order                       : 22/02/2022
Whether Approved for Reporting               :

                                 ORDER

22- February - 2022

This Criminal Revision under Section 397/401 read with

Section 482 of Cr.P.C. has been filed against the order dated

31/1/2022 passed by Second Additional Sessions Judge, Dabra,

District Gwalior in Sessions Trial No.104/2021, by which the

application filed by the complainant under Section 319 of Cr.P.C. has

been allowed and the applicants have been summoned as an additional

accused.

2. The prosecution story in short is that Crime No.455/2017 was

registered against the co-accused Dharmendra Pandey, Smt. Ragini

Pandey and two other persons for offence under Sections 324, 323, 2 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

294, 341, 506, 34 of IPC. Later on, after receiving the medical report,

offences under Sections 323, 307 of IPC were added. It is alleged that

the co-accused Dharmendra Pandey and Smt. Ragini Pandey got a

false medical certificate prepared from Civil Hospital, Dabra District

Gwalior with the connivance of the authorities working in the said

hospital to the effect that Smt. Ragini Pandey, who was already named

in the FIR No.455/2017, was in fact admitted in the Civil Hospital,

Dabra District Gwalior, thereby taking the plea of alibi. An application

under Section 438 of CrPC was filed by Smt. Ragini Pandey for grant

of anticipatory bail along with the said certificate and she succeeded

in getting an order of anticipatory bail. Later on, the complainant filed

an application under Section 439(2) of CrPC for cancellation of

anticipatory bail granted to the co-accused Smt. Ragini Pandey on the

ground that she has obtained the bail by filing a false document. An

enquiry was conducted and, accordingly, it was found that Dr.

Virendra Gaur, Dharmendra Pandey, Smt. Ragini Pandey and other co-

accused persons were involved in preparing a false medical certificate

to show that Smt. Ragini Pandey was admitted in the hospital at the

time of incident, whereas in the CCTV footage of the police station, it

was clearly visible that Smt. Ragini Pandey was sitting in the police

station. Furthermore, it was also found that false certificate was

prepared by taking advantage of the fact that one Smt. Rani had

visited the OPD of Civil Hospital, Dabra District Gwalior. Even as per 3 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

the report of Handwriting Expert, the false certificate was found to be

in the handwriting of Dr. Virendra Gaur. It is not out of place to

mention here that Smt. Ragini Pandey filed SLP before the Supreme

Court, which too was dismissed with liberty to surrender within a

period of seven days, but Smt. Ragini Pandey went in hiding and took

more than three years to surrender.

3. Be that as it may.

4. The Police filed charge-sheet against Smt. Ragini Pandey,

Dharmendra Pandey, Dr. Virendra Gaur and other persons.

5. The examination-in-chief of the complainant Mukesh Parashar

was recorded and thereafter the complainant filed an application under

Section 319 of CrPC for summoning the applicants as an additional

accused. By the impugned order, the said application has been

allowed.

6. Challenging the order passed by the Court below, it is submitted

by the counsel for the applicants that since the power under Section

319 of CrPC has been exercised merely on the basis of the

examination-in-chief of the complainant, therefore, it cannot be said

that the evidence has been recorded. It is further submitted that even

otherwise, there is no prima facie material to show the involvement of

the applicants in preparation of false document. It is further submitted

that so far as the applicant No. 2-Pawan Pandey is concerned, the only

allegation against him is that he had given an affidavit before the Trial 4 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

Court and this Court in support of the application filed by Smt. Ragini

Pandey for grant of anticipatory bail, in which he had disclosed that

the application filed by Smt. Ragini Pandey under Section 438 of

CrPC is the first application and no application was ever filed or

pending before the Trial Court or High Court. It was also mentioned

that Smt. Ragini Pandey is his Aunty and he had engaged Shri N.P.

Sharma and their associates as her counsel. It is submitted that

applicant no.2-Pawan Pandey did not give a declaration that the

contents or the documents filed along with the bail application are

correct to his personal knowledge. Thus, it cannot be said that the

contents of the bail application, in which, it was mentioned that the

co-accused Smt. Ragini Pandey was admitted in the hospital at the

time of incident as well as false certificate annexed along with the said

bail application were within the knowledge of the applicant No.2-

Pawan Pandey. It is further submitted that so far as the applicants No.1

and 3, namely. Radhe @ Radheyshyam Pandey and Vivek Pandey

respectively are concerned, there is no material against the said

applicants, warranting their summoning as an additional accused.

Counsel for the applicants has also relied upon the judgment passed

by the Supreme Court in the case of Hardeep Singh VS. State of

Punjab and others reported in AIR 2014 SC 1400.

7. Per contra, the application is vehemently opposed by the

counsel for the State as well as the complainant. It is submitted that so 5 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

far as the applicant No.2-Pawan Pandey is concerned, he had given an

affidavit in support of the application for grant of bail filed by Smt.

Ragini Pandey. He had specifically mentioned in the affidavit that the

application filed by Smt. Ragini Pandey under Section 438 of CrPC is

first in number. It is submitted that unless and until the applicant

Pawan Pandey had gone through the bail application, he could not

have given a declaration that the bail application which is being filed

on behalf of Smt. Ragini Pandey is first in number. Thus, it is

submitted that the applicant No.2 was well aware of the fact that Smt.

Ragini Pandey is relying on a false document and even then he had

given an affidavit in support of the said application. Thus, it is clear

that the applicant No.2-Pawan Pandey had played an active role in

preparation of false medical certificate.

8. So far as the role of the applicants No.1 and 3, namely, Radhe

@ Radheyshyam Pandey and Vivek Pandey are concerned, it is

submitted by the counsel for the complainant that in the FIR bearing

Crime No.101/2018 registered at Police Station Dabra District

Gwalior, it was mentioned that the complainant was assaulted by Smt.

Ragini Pandey, Dharmendra Pandey and two other unknown persons.

It is further submitted that as per the allegations in the present case the

applicants no.1 and 3, namely, Radhe @ Radheshyam Pandey and

Vivek Pandey had also came to the police station when the incident

had taken place on 4/6/2017 and they are visible in the CCTV cameras 6 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

of the police station and thus, it is clear that they must have played an

active role in preparing forged medical certificate to show that Smt.

Ragini Pandey was hospitalized in the Civil Hospital Dabra, District

Gwalior at the time of the incident.

9. Heard learned counsel for the parties.

10. The Supreme Court in the case of Hardeep Singh (supra) has

held as under:-

"98. Power under Section 319 CrPC is a discretionary and an extraordinary 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."

7 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

11. Thus, it is clear that in order to exercise power under Section

319 of Cr.P.C. the material should more than what is required for

framing of charge, but less than what is required for recording

conviction. If the allegations made against applicant no.2-Pawan

Pandey are considered, then it is clear that he had given an affidavit in

support of the application under Section 438 of Cr.P.C. which was

filed before the Trial Court and this Court by Smt. Ragini Pandey and

in that affidavit, he had given a declaration that it is the first bail

application. Thus, it is clear that he must have given said declaration

only after going through the contents of the application as well as

documents annexed with the same.

12. So far as the contention of the counsel for the applicants that

since applicant no.2 had not given a declaration that the contents of

the bail application are true to his knowledge and belief, therefore, he

cannot be made responsible for the incorrect declaration given by Smt.

Ragini Pandey is concerned, the same is misconceived and cannot be

accepted. Once an affidavit is given in support of the application for

anticipatory bail thereby claiming that it is the first bail application,

then it is clear that the applicant no.2 must have given that affidavit

only after going through the bail application. Affidavit is not a waste

piece of paper and it is the solemn declaration on oath. If applicant

no.2 says that he had deliberately given a vague affidavit by not

claiming that the contents of the application for grant of anticipatory 8 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

bail are correct, then it is clear that he was well aware of the fact that

the contents as well as the documents annexed alongwith the

application for anticipatory bail were false. Under these

circumstances, if he gave an affidavit that the application filed by Smt.

Ragini Pandey for anticipatory bail before this Court is first bail

application, then it is clear that not only he had played fraud on the

Court by giving an evasive affidavit, but he was aware of the fact that

the application for anticipatory bail is not based on correct facts and

documents. Furthermore, the Supreme Court in the case of New

Okhla Industrial Development Authority Vs. Ravindra Kumar

Singhvi (dead) through LRs by judgment dated 15/2/2022 passed

in Civil Appeal No.382/2012 has held as under:-

"17. In M. Veerabhadra Rao Vs. Tek Chand, 1984 (Supp) SCC 571, this Court was considering an affidavit attested by an Advocate in terms of Section 3(2) of the Oaths Act, 1969. The conduct of appellant to attest an affidavit without oath and the attestation on the representation of the respondent that it bears his signatures, came up for consideration. In these circumstances, this Court held as under:

"17. The expression 'affidavit' has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer. Affidavit has been defined in sub-clause (3) of Section 3 of the General Clauses Act, 1897 to include 'affirmation and declaration in the case 9 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

of person by law allowed to affirm or declare instead of swearing.' The essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation......"

18. Therefore, affidavits filed were not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath."

13. Under these circumstances, this Court is of the considered

opinion that there is a sufficient material against applicant no.2-Pawan

Pandey to be proceeded under Section 319 of Cr.P.C. because he was

well aware of the fact that the declaration made in the anticipatory bail

application by Smt. Ragini Pandey and documents filed alongwith the

said anticipatory bail application were false, but in spite of that an

affidavit was given in support of the application for grant of

anticipatory bail.

14. So far as the applicants no.1 and 3, namely, Radhe @

Radheshyam Pandey and Vivek Pandey are concerned, the only

allegation against them is that on 4/6/2017 the applicants no.1 and 3,

namely, Radhe @ Radheshyam Pandey and Vivek Pandey were in the

police station alongwith co-accused Smt. Ragini Pandey and 10 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

Dharmendra Pandey. Except the aforesaid allegation, there is nothing

more on record to show that applicant no.1-Radhe @ Radheshyam

Pandey and applicant no.3-Vivek Pandey were in any manner involved

in preparation of false medical certificate. Merely because applicant

nos.1 and 3 were present in the police station on 4/6/2017, it cannot be

presumed that they had also conspired with other co-accused persons

to prepare false medical certificate. Except by alleging that applicant

no.1-Radhe @ Radheshyam Pandey and applicant no.3-Vivek Pandey

had also conspired with other co-accused persons for getting false

medical certificate prepared, the counsel for the State as well as the

complainant could not point out any other material from record to

show their involvement. Under these circumstances, this Court is of

the considered opinion that there is no sufficient material available on

record to proceed against applicant no.1-Radhe @ Radheshyam

Pandey and applicant no.3-Vivek Pandey.

15. It is next contended by the counsel for the applicants that since

the power under Section 319 of Cr.P.C. has been exercised merely on

the basis of the examination-in-chief of the complainant and,

therefore, the power has been exercised prematurely because in

absence of any cross-examination, it cannot be said that the evidence

has been recorded.

16. Considered the submission made by the counsel for the

applicants.

11 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

17. The Supreme Court in the case of Hardeep Singh (supra) has

held as under:-

110. We accordingly sum up our conclusions as follows:

Question Nos. I & III Q.1 What is the stage at which power under Section 319, CrPC, can be exercised?

AND Q.III Whether the word "evidence" used in Section 319(1), CrPC, has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

A. In Dharam Pal's (AIR 2013 SC 3018) case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193, CrPC and the Sessions Judge need not wait till 'evidence' under Section 319, CrPC becomes available for summoning an additional accused.

Section 319, CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398, CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319, CrPC,, and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

In view of the above position the word 'evidence' in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial.

12 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

Question No.II Q.II Whether the word "evidence" used in Section 319(1), CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4), CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination."

18 Thus, it is clear that the power under Section 319 of Cr.P.C. can

be exercised even if the cross-examination of a witness has not taken

place.

19. No other argument is advanced by the counsel for the parties.

20. Considering the totality of the facts and circumstances of the

case, this Court is of the considered opinion that there is sufficient

material against applicant no.2-Pawan Pandey to be proceeded against

in exercise of power under Section 319 of Cr.P.C., whereas there is no

material against applicant no.1-Radhey @ Radheyshyam Pandey and

applicant no.3-Vivek Pandey to be summoned as an additional

accused in exercise of power under Section 319 of Cr.P.C.

21. Accordingly, order dated 31/1/2022 passed by Second

Additional Sessions Judge, Dabra, District Gwalior in Sessions Trial

No.104/2021 is partially set aside: the impugned order is affirmed

qua applicant no.2-Pawan Pandey, but it is set aside qua applicant 13 Criminal Revision No.467/2022 Radhe @ Radheshyam Pandey and others Vs. The State of M.P.

no.1-Radhe @ Radheshyam Pandey and applicant no.3-Vivek

Pandey.

22. Accordingly, the Criminal Revision succeeds and is allowed in

part to the extent mentioned above.

(G.S. Ahluwalia) Judge

Arun* ARUN KUMAR MISHRA 2022.02.22 14:48:34 +05'30'