Piyush Chaturvedi vs Central Bureau Of Investigation
2023 Latest Caselaw 12728 MP

IN THE            HIGH COURT                   OF MADHYA PRADESH
                             AT J A B A L P U R
                                      BEFORE
                HON'BLE SHRI JUSTICE SHEEL NAGU
                                           &
      HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
                        ON THE 8th OF AUGUST, 2023



                MISC. CRIMINAL CASE No. 11031 of 2023

BETWEEN:-
PIYUSH CHATURVEDI S/O LATE SHRI RAVINDRA
CHATURVEDI, AGED      59 YEARS, R/O B-54
CHHATRASAL    NAGAR,    PHASE   I,  NEAR
INDRAPUR, BHEL, DISTRICT BHOPAL (MADHYA
PRADESH)
                                                                    .....PETITIONER
(BY SHRI SANKALP KOCHAR AND SHRI AMAN DAWRA - ADVOCATES)
AND
CENTRAL   BUREAU    OF    INVESTIGATION
THROUGH SPE ACB BHOPAL, DISTRICT BHOPAL
(MADHYA PRADESH)
                                                                   .....RESPONDENT
(BY SHRI VIKRAM SINGH - ADVOCATE)
-----------------------------------------------------------------------------------------

Reserved on : 18.07.2023

Pronounced on : 08.08.2023

-----------------------------------------------------------------------------------------

This petition having been heard and reserved for orders, coming on for
pronouncement this day,           JUSTICE AVANINDRA KUMAR SINGH
passed the following:
                                    2


                               ORDER

1) With the consent of learned counsel for the parties, the matter is heard finally.

2) This petition under Section 482 of Cr.P.C. has been filed by the petitioner against the order dated 13.02.2023 passed in Special S.C. 07/2018 by learned Special Judge, C.B.I., Bhopal.

3) By the impugned order (Annexure A/1), applications filed by the petitioner / accused Piyush Chaturvedi under Section 319 of Cr.P.C. for arraying two persons namely Mr. Vaibhav Jain and Ms. Sonali Gangole as accused have been dismissed.

4) As per the petitioner, C.B.I., Bhopal has registered a case on 25.01.2016 under Section 120-B r/w 420, 467, 468 & 471 IPC and also under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 on the anvil of a complaint submitted by Shri Sunil Kumar Vohra, Dy. Zonal Manager, Bank of India, Bhopal.

As per the charge-sheet, in short C.B.I. found that there was a conspiracy between the petitioner Piyush Chaturvedi, the then Sr. Branch Manager, Bank of India and one Mohan Singh Solanki, who defrauded the Bank by misappropriating loan amount to the tune of Rs.22,00,000/- on 21.11.2013. The account in which the amount was transferred was in the name of M/s Gold Fly Ash of Allahabad Bank bearing account No.50161371730.

5) As per the statement of account received from Zonal Office, the transaction in FINACLE system of the Bank was entered by Shri Vaibhav Jain and the same was authorized by Ms. Sonali Gangole. It is alleged that the transaction was carried on the instructions of the petitioner. During investigation, it has been stated by Ms. Sonali

Gangole that they acted on the instructions of Branch Manager Shri Piyush Chaturvedi, petitioner herein.

6) It is submitted that the petitioner has not committed any wrong. On the contrary, whatever criminal act has been committed, the same has been committed by Ms. Sonali Gangole and Shri Vaibhav Jain and they may be arrayed as an accused under Section 319 of Cr.P.C. The application to this effect filed on 12.11.2022 has been rejected without assigning any cogent reason.

It is further submitted that during trial, Ms. Sonali Gangole (P.W.13) and Mr. Vaibhav Jain (P.W.15) were examined and their evidence is on record as Annexure A/6, hence prayer has been made to accept the petition and quash the impugned order dated 13.02.2023 (Annexure A/1) and allow the applications filed by the petitioner under Section 319 Cr.P.C. (Annexures A/3 and A/4) to array Ms. Sonali Gangole and Mr. Vaibhav Jain as accused.

7) Counsel for the State submits that impugned order is based on fact and law, trial is at the fag end, only Investigating Officer of the case remains to be examined during trial, hence petition should be dismissed.

8) The question before this Court is whether application filed by the petitioner under Section 319 of Cr.P.C. by Annexure A/1 has been wrongly dismissed by the learned trial Court ?

9) We have heard the learned counsel for the parties at length and perused the record.

10) Learned counsel for the petitioner has relied upon the judgment passed by the Constitution Bench of the Apex Court in Sukhpal Singh Khaira Vs. State of Punjab; (2023) 1 S.C.C. 289. Before the Hon'ble Constitution Bench the following substantial questions of law were

raised. Concerned paragraphs and answers thereto in paragraphs are given below :-

"7. In that view, the following substantial questions of law were raised for further consideration and the matters were placed before the Hon'ble the Chief Justice of India for constitution of a Bench of appropriate strength to consider the questions raised. The Hon'ble the Chief Justice has accordingly constituted this Bench to consider the questions raised, which read as hereunder:

"I. Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial with respect to other co- accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order? II. Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial? III. What are the guidelines that the competent court must follow while exercising power under Section 319CrPC?"

14. In the background of the rival contentions, in order to determine the question referred to us, it would be appropriate for us to, at the outset, take note of the provision as contained in Section 319CrPC, which reads as hereunder:

"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;

(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."

15. At the outset, having noted the provision, it is amply clear that the power bestowed on the court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the court, if it appears to the court that such evidence points to any person other than the accused who are being tried before the court to have committed any offence and such accused has been excluded in the charge-sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused.

32. Therefore, from a perusal of the provisions and decisions of this Court, it is clear that the conclusion of the trial in a criminal prosecution if it ends in conviction, a judgment is considered to be complete in all respects only when the sentence is imposed on the convict, if the convict is not given the benefit of Section 360CrPC. Similarly, in a case where there are more than one accused and if one or more among them are acquitted and the others are convicted, the trial would stand concluded as against the accused who are acquitted and the trial will have to be concluded against the convicted accused with the imposition of sentence. When considered in the context of Section 319CrPC, there would be no dichotomy as argued, since what becomes relevant here is only the decision to summon a new accused based on the evidence available on record which would not prejudice the existing accused since in any event they are convicted.

33. In that view of the matter, if the court finds from the evidence recorded in the process of trial that any other person is involved, such power to summon the accused under Section 319CrPC can be exercised by passing an order to that effect before the sentence is imposed and the judgment is complete in all respects bringing the

trial to a conclusion. While arriving at such conclusion what is also to be kept in view is the requirement of sub-section (4) to Section 319CrPC. From the said provision it is clear that if the learned Sessions Judge exercises the power to summon the additional accused, the proceedings in respect of such person shall be commenced afresh and the witnesses will have to be re-examined in the presence of the additional accused. In a case where the learned Sessions Judge exercises the power under Section 319CrPC after recording the evidence of the witnesses or after pronouncing the judgment of conviction but before sentence being imposed, the very same evidence which is available on record cannot be used against the newly added accused in view of Section 273CrPC. As against the accused who has been summoned subsequently a fresh trial is to be held. However while considering the application under Section 319CrPC, if the decision by the learned Sessions Judge is to summon the additional accused before passing the judgment of conviction or passing an order on sentence, the conclusion of the trial by pronouncing the judgment is required to be withheld and the application under Section 319CrPC is required to be disposed of and only then the conclusion of the judgment, either to convict the other accused who were before the Court and to sentence them can be proceeded with. This is so since the power under Section 319CrPC can be exercised only before the conclusion of the trial by passing the judgment of conviction and sentence.

34. Though Section 319CrPC provides that such person summoned as per sub-section (1) thereto could be jointly tried together with the other accused, keeping in view the power available to the court under Section 223CrPC to hold a joint trial, it would also be open to the learned Sessions Judge at the point of considering the application under Section 319CrPC and deciding to summon the additional accused, to also take a decision as to whether a joint trial is to be held after summoning such accused by deferring the judgment being passed against the tried accused. If a conclusion is reached that the fresh trial to be conducted against the newly added accused could be separately tried, in such event it would be open for the learned Sessions Judge to order so and proceed to pass the judgment and conclude the trial insofar as the accused against whom it had originally proceeded and thereafter proceed in the case of the newly added accused. However, what is important is that the decision to summon an additional accused either suo motu by the court or on an application under Section 319CrPC shall in all eventuality be considered and disposed of before the judgment of conviction and sentence is pronounced, as otherwise, the trial would

get concluded and the court will get divested of the power under Section 319CrPC. Since a power is available to the court to decide as to whether a joint trial is required to be held or not, this Court was justified in holding the phrase, "could be tried together with the accused" as contained in Section 319(1)CrPC, to be directory as held in Shashikant Singh [Shashikant Singh v. Tarkeshwar Singh, (2002) 5 SCC 738 : 2002 SCC (Cri) 1203] which in our opinion is the correct view.

35. One other aspect which is necessary to be clarified is that if the trial against the absconding accused is split up (bifurcated) and is pending, that by itself will not provide validity to an application filed under Section 319CrPC or the order of court to summon an additional accused in the earlier main trial if such summoning order is made in the earlier concluded trial against the other accused. This is so, since such power is to be exercised by the court based on the evidence recorded in that case pointing to the involvement of the accused who is sought to be summoned. If in the split up (bifurcated) case, on securing the presence of the absconding accused the trial is commenced and if in the evidence recorded therein it points to the involvement of any other person as contemplated in Section 319CrPC, such power to summon the accused can certainly be invoked in the split up (bifurcated) case before conclusion of the trial therein.

38. For all the reasons stated above, we answer the questions referred as hereunder.

39.(I) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?

The power under Section 319CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal

or imposing sentence in the case of conviction, the same will not be sustainable.

40.(II) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?

41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319CrPC?

41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.

41.2. The court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.

41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.

41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.

41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.

41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with.

41.7. If the proceeding paused as in para 41.1 above, is in a case where the accused who were tried are to be acquitted, and the decision is that the summoned accused can be tried afresh

separately, there will be no impediment to pass the judgment of acquittal in the main case.

41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated) trial.

41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319CrPC, the appropriate course for the court is to set it down for re-hearing.

41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.

41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.

41.12. If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier:

(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.

(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."

11) Thus it is clear from the judgment cited by the learned counsel for the applicant that on being satisfied about the involvement of any person who was not arrayed as an accused during the trial, the trial Court just before passing the final order or judgment can do so.

12) Learned counsel for the applicant has also placed reliance on the judgment by Hon'ble Apex Court in the matter of Hardeep Singh Vs. State of Punjab [ (2014) 3 SCC 92] which has been duly considered by the Constitution Bench in the case of Sukhpal Singh Khaira Vs. State of Punjab (Supra) but it is important to mention that in the case of Hardeep Singh (Supra) in para 117.5, Hon'ble Supreme Court has held as under :-

"117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge [Ed. : The conclusion of law as stated in para 106, p. 138c-d, may be compared:"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". See also especially in para 100 at p. 136f-g.] . The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different."

13) Reliance has also been placed on the judgment of Apex Court in Ajay Kumar Vs. State of Uttarakhand [(2021) 4 SCC 301] in which Hardeep Singh Vs. State of Punjab (Supra) has been considered. In the case of Ajay Kumar Vs. State of Punjab (Supra), the accused who were summoned under Section 319 Cr.P.C. moved before High Court

but it was dismissed. The parties moved to the Apex Court which directed the High Court to decide the matter fresh hence this case also does not help the case of the applicant being on different factual matrix. Reliance has also been placed on Kailash Vs. State of Rajasthan [(2008) 14 SCC 51]. According to Kailash judgment (Supra) in para 13, Hon'ble Apex Court has laid down that where the trial Court on the basis of evidence adduced during trial does not find material then without proper evidence High Court was not justified in directing the Sessions Court to decide afresh revision application under Section 319 Cr.P.C. Again the factual matrix of Kailash's case does not help to bolster the case of the applicant to array two Bank Officers as accused who have not been charge-sheeted or called up to face trial under Section 319 Cr.P.C. by the learned trial Court in the matter in hand and the last citation cited by the learned appellant's counsel is of Sarojben Ashwinkumar Shah and others Vs. State of Gujarat and others [ (2011) 13 SCC 316] in which the Hon'ble Apex Court has held in para 16 as under :-

"16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this:

(i) The court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.

(iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word "evidence" in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The court must also be satisfied that circumstances justify and warrant that the other person be tried with the already arraigned accused.

(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.

(vii) Regard must also be had by the court to the constraints imposed in Section 319(4) that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.

Again, as said before the law laid down in this last citation also does not help the applicant as the evidence of the prosecution has not been adduced in full in the trial Court.

14) Looking to the matter in hand and the judgments cited above, it can safely be said that if the trial Court on the basis of charge-sheet and evidence adduced till date is of the considered view that at this stage, it is not appropriate to analyze the evidence for the purpose of deciding the

application u/S. 319 Cr.P.C. moved by the applicant then in the light of the judgment of Hon'ble Apex Court cited in this order and also on the facts and circumstances of the case then the dismissal of the applications moved by the applicant does not seem to be improper, hence no ground is made out to interfere in the impugned order dated 13.02.2022 while rejecting the application under Section 319 of Cr.P.C., hence petition is dismissed.

                               (SHEEL NAGU)                             (AVANINDRA KUMAR SINGH)
                                  JUDGE                                          JUDGE


    Vikram
Digitally signed by VIKRAM SINGH
Date: 2023.08.09 11:50:42 +05'30'