Madhya Pradesh High Court
Mohit vs The State Of Madhya Pradesh on 18 August, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 2854 of 2023
BETWEEN:-
MOHIT S/O SHRI MANGILAL JI
CHOUDHARY, AGED ABOUT 35 YEARS,
OCCUPATION: GOVT. JOB R/O 52
NAYAPRUA ROAD GANGADHAM
MANDSAUR (MADHYA PRADESH)
.....PETITIONER
(BY MS. PRANJALI YAJURVEDI, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION SHAHAR KOTWARLI
(MADHYA PRADESH)
.....RESPONDENT
(BY MS. NISHA JAISWAL, LEANED PANEL LAWYER)
CRIMINAL REVISION No. 3012 of 2023
BETWEEN:-
MAHENDRA SINGH TOMAR S/O
SHIVSHANKAR SINGH TOMAR, AGED
ABOUT 37 YEARS, OCCUPATION: JOB
112, KARMCHARI COLONY,
MANDSAUR, DISTRICT MANDSAUR
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
2
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIVEK SINGH, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION SHAHAR KOTWALI,
DISTRICT MANDSAUR (MADHYA
PRADESH)
.....RESPONDENT
(BY MS. NISHA JAISWAL, LEARNED PANEL LAWYER)
Reserved on : 08.08.2023
Delivered on : 18.08.2023
These revisions coming on for orders this day, with the consent
of parties, heard finally and the Court passed the following:
ORDER
This order shall govern the disposal of these Criminal
Revisions as they are arisen out of same order dated 29.03.2023
passed in Sessions Trial No. 88/2017 by the learned Second
Additional Sessions Judge, Mandsaur, hence, they are heard
analogously and are being decided by this common order.
2. These criminal revisions under Section 397/401 of Cr.P.C.
have been filed by the petitioners being crestfallen by the order
under Section 319 of Cr.P.C. delivered in judgment dated
29.03.2023, passed by the learned 7th Additional Sessions Judge,
District Mandsaur in Sessions Trial No.88/2017 whereby the
learned trial Court has made the petitioners accused alongwith other
co-accused person under Section 319 of Cr.P.C. and issued notice
for separate trial against the petitioners.
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
3. At the time of passing the impugned judgment, the learned
trial Court has sentenced the accused persons as under:
S. Name of the Section Punishment Fine Punishment
No. accused under in default of
convicted fine
1 Madhusudan 409 IPC 7 years 10,000/- 1 year
2 Sandeep 409 IPC 7 years 10,000/- 1 year
467/120B 3 years 1000/- 6 months
IPC
468/120B 3 years 1000/- 6 months
IPC
471/120B 5 years 1000/- 6 months
IPC
201 IPC 1 year 1000/- 6 months
3 Mohammad 420/120B 3 years 1000/- 1 year
Farukh IPC
467 IPC 7 years 1000/- 1 year
468 IPC 3 years 1000/- 6 months
471 IPC 5 years 1000/- 6 months
201 IPC 1 year 1000/- 6 months
4 Mohammad 420/120B 3 years 1000/- 1 year
Aslam IPC
467/120B 7 years 1000/- 1 year
IPC
468/120B 3 years 1000/- 6 months
IPC
471/120B 5 years 1000/- 6 months
IPC
5 Nizamuddin 420/120B 3 years 1000/- 1 year
IPC
467/120B 7 years 1000/- 1 year
IPC
468/120B 3 years 1000/- 6 months
IPC
471/120B 5 years 1000/- 6 months
IPC
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
4. The appellants namely Abdul, Aneesh and Madhusudan were
acquitted from all the charges except Madhusudan was convicted
under Section 409 of IPC as mentioned above.
5. In this regard, the learned trial Court, passing the impugned
judgment, mentioned in para Nos. 98 to 100 that the petitioners
alongwith other person namely Lalit Agrawal has played important
role in the said offence. It is also disclosed that the petitioners and
Lalit Agrawal was made accused at early stage, however, the
prosecution has filed the final report under Section 173(8) of
Cr.P.C. to the effect that they have no role in the crime. In this
regard, the learned trial Court has observed that the amount was
deposited in the account of petitioners through missing cheques,
hence, they are required to be prosecuted. It is also commented that
the police administration has tried to save the petitioners alongwith
Lalit Agrawal from being impleaded in the criminal case as
accused. As such, after observing as aforesaid, in view of the
judgement of Hon'ble Apex Court rendered in the case of Sukhpal
Singh Khaira vs. State of Punjab [(2023) 1 SCC 289], the learned
trial Court has adjudicated that separate trial should be initiated
against the petitioners, Mohit and Mahendra and therefore, a notice
for separate trial should be issued against them.
6. Counsel for the petitioners in these revision petitions as well
as in arguments submits that on the basis of written complaint of
Branch Manager of the Society, an enquiry report was prepared,
wherein it is mentioned that the society has received cheque of
Rs.5.85 Lakhs in the account of Bhulibai, the said cheque was
signed cheque, but in the enquiry report, it was found that Bhulibai
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
is an illiterate person. During enquiry, it was found that the cheque
was received in the account of Bhulibai. It is further unearthed that
cheque Nos.494676 to 49700 were missing and Sandeep,
Mohammad Farooq and Madhusudan were responsible for the
alleged offence. It is further submitted that on the basis of the
statement of co-accused Mohammad Farooq recorded under
Section 27 of the Evidence Act, cognizance under Section 319 of
Cr.P.C. has been taken against the petitioners whereas such type of
evidence is not admissible. It is further submitted that the
petitioners have been foisted as accused only on the ground of
suspicion, therefore, the order of learned trial Court regarding
taking cognizance against the petitioners under Section 319 of
Cr.P.C be set aside.
7. In course of arguments, it is further contended by learned
counsel for the petitioners that the learned trial Court has made the
petitioners as accused, in view of the guidelines enumerated by the
Hon'ble Apex Court in the case of Sukhpal Singh (supra),
however, the learned trial Court has not passed the impugned order
in accordance with the law laid down by Hon'ble Apex Court. It is
further submitted that the order of summoning the petitioners as
accused should be passed before pronouncement of the order of
acquittal in such type of cases where the order of acquittal and
conviction both are recorded.
8. Learned counsel for the State has remonstrated the
contentions of the petitioners and submitted that the findings of the
learned trial Court regarding issuance of notice to the petitioners is
based on correct assumptions. Therefore, the said findings do not
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
warrant any interference. Learned counsel for the State has also
submitted that if the petitioners have not played any active role in
the said crime, they will surely be acquitted after completion of
trial, but anyway, they should not be eschewed to face the regular
trial. Hence, revision petition may be dismissed.
9. In view of the aforesaid submissions and arguments advanced
by counsels for the parties, the following points are required to be
considered:-
(i) Whether the learned trial Court has
correctly used the power of
summoning the additional accused on
the date of judgement or not?
(ii) Whether in view of the facts of the
case the learned trial court has
arrayed the petitioners as accused by
summoning them corretly or not?
10. At the outset, the technical arguments of learned counsel for
the petitioners are required to be ruminated. In the course of any
enquiry or trial of an offence, if it appears to the Court from the
evidence that any person, not being the accused of the case, has
committed any offence for which, such person can be tried together
with the accused persons, the Court may proceed against such
person in the offence which he appears to have committed and if
such person is not attending the Court, he may be summoned or
arrested. In this way, Section 319 of Cr.P.C. emphasizes the
principle of trying together with the other accused persons.
11. So far as the separate trial is concerned, nevertheless, when a
person is emerged as an accused at belated stage of trial, a separate
trial can be initiated. The learned trial Court while relying upon the
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
judgment passed by a Constitutional Bench of Hon'ble the Apex
Court in the case of Sukhpal Singh (supra), passed this order under
Section 319 of Cr.P.C. In this regard, following extracts of the
aforesaid judgment be reads as under:
"The power under Section 319 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."
12. Now, the question is whether the learned trial Court has
applied the aforesaid law in passing the impugned order under
Section 319 of Cr.P.C. In this case, two of the accused have been
acquitted and five have been convicted. As such, this is a case of
joint result; i.e. acquittal and conviction, both. Hence, in my
considered opinion, the learned trial Court should pass the order
under Section 319 of Cr.P.C. before passing the order of acquittal of
Aneesh and Abdul Saleem. Since, the learned trial Court has passed
the impugned order under Section 319 of Cr.P.C. against the
petitioners after acquitting the accused persons rather than
preceding their acquittal, the order passed by the learned trial Court
cannot be said to be in accordance with the settled law laid down by
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
Hon'ble Apex Court in the case of Sukhpal Singh (supra).
Therefore, on the basis of this sole reason, this order of learned trial
Court is not sustainable in the eyes of law.
13. Now, turning to merits of the case, I have gone through the
record and at the outset, it is found that on the same crime number,
the learned Sessions Judge by its impugned judgment, has ordered
to summon these petitioners as accused. Further, It is evident from
Para 98 of the impugned judgment that, the petitioners namely
Mohit and Mahendra have been implicated in the case on account
of suspicion as the amount has been transferred to their respective
bank accounts only through the cheques that were found missing
from the bank and the same has been disbursed from their accounts.
From Para 99 of the impugned judgment, the learned trial Court has
also observed the same fact which was observed qua the co-accused
Lalit. A Criminal Revision No. 2034/2023 was filed before this
Court on behalf of Lalit and this Court after considering the same
elaborately, has set aside the impugned order therein vide order
dated 28.06.2023.
14. Regarding Mohit and Mahendra, the learned trial Court has
expressed in Para 56 of the judgment that the accused Sandeep has
stated in his memorandum statement (Ex.-P/33) that he has
deposited money in the accounts of Mohit and Mahendra and
further, got it returned from their accounts and deposited it to
District Co-operative Bank. On this aspect, it is also stated in
memorandum statement (Ex.-P/33) that accused Sandeep himself
had operated all these transactions by taking these persons i.e.
Mohit and Mahendra into confidence with the help of another co-
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
accused Farukh.
15. Now, the question arises as to what was the role of Mohit and
Mahendra in these transactions. The prosecution is unable to
answer the question as to how these persons committed breach of
trust, cheating or forgery. The learned trial Court has also not
pointed out anything, by which it can be ascertained that Mohit and
Mahendra have committed the offence punishable under Sections
420, 409 and 467 of IPC. There is no evidence available on record
that the petitioners-Mohit and Mahendra themselves were involved
in depositing of money in their accounts, further withdrawal and
deposited in the bank.
16. Now, the question arises whether any person can be
impleaded as accused only on the basis of aforesaid facts as to
depositing of amount in their accounts and thereafter returning it to
the accounts of bank. In this regard, the view of Hon'ble Apex
Court in the Brindaban das & others vs. State of West Bengal:
[(2009) 3 SCC 329]; reads as under:
"18. The common thread in most
matters where the use of discretion is
in issue is that in the exercise of such
discretion each case has to be
considered on its own set of facts and
circumstances. In matters relating to
invocation of powers under Section
319, the Court is not merely required
to take note of the fact that the name
of a person who has not been named
as an accused in the FIR has
surfaced during the trial, but the
court is also required to consider
whether such evidence would be
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
sufficient to convict the person being
summoned. Since issuance of
summons under Section 319 of
Cr.P.C entails a de novo trial and a
large number of witnesses may have
been examined and their re-
examination could prejudice the
prosecution and delay in the trial, the
trial Court has to exercise such
discretion with great care and
perspicacity."
17. Further, Hon'ble the Apex Court in the case of Hardeep
Singh vs. State of Punajab reported in [(2014) 3 SCC 92], in para
no.12 has held as under:
"Section 319 of Cr.P.C springs out of
the doctrine judex damnatur cum
nocens absolvitur (Judge is
condemned when guilty is acquitted)
and this doctrine must be used as a
beacon light while explaining the
ambit and the spirit underlying the
enactment of Section 319 Cr.P.C".
18. Endorsing the aforesaid verdict, Hon'ble the Apex Court in
the case of Vikas Rathi vs. State of U.P. & Anr. [(2023) LiveLaw
(SC) 172], has held in Para 9 and 10 of the judgment, which is
reproduced as under:
"9. The principles of law with
reference to exercise of jurisdiction
under 319 Cr.P.C. are well settled.
10. The Constitution Bench in Hardeep
Singh and Ors.'s case (supra), opined
as under:
"105. Power u/s 319 Cr.P.C. is a
discretionary and an extraordinary
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
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 laid before the court that
such power should be exercised and not
in a casual and cavalier manner.
106 . Thus we hold that though only a
prima facie case is to be stablished from
the evidence laid before the court, not
necessarily tested on the anvil of cross-
examination, it requires much strong
evidence that near 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 harge, 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 u/S 319 CrPC."
19. In a recent judgment in the case of Juhru and others vs.
Karim and Another [AIR 2023 SC 1160], Hon'ble the Apex Court
has further reiterated that the power of summoning under Section
319 of Cr.P.C. should not be exercised routinely, and the existence
of more than a prima facie case is sine qua non for summoning an
additional accused.
20. In view of the aforesaid facts and settled propositions of law,
this Court is of the considered opinion that a person can only be
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
summoned as an accused, when the trial Court, after analyzing the
evidence available on record strongly feels that there is sufficient
and overwhelming evidence available on record and it is expedient
for justice to summon him as accused. Only in such situation, the
trial Court, using its extraordinary jurisdiction, may summon a
person as an accused in the interest of justice.
21. In the case at hand, the learned trial Court, without assigning
sufficient ground for substratum of constituting the said offences,
punishable under Sections 420, 409 and 467 of IPC, has wrongly
observed that the role of the petitioners are suspicious and required
to be summoned as accused persons. Virtually, such type of vague
and obscure finding is not sufficient to implead persons as an
accused and to direct them for facing a separate trial.
22. In upshot of the aforesaid analysis and settled proposition of
law, the findings of the learned trial Court to summon the
petitioners under Section 319 of the Cr.P.C., cannot be sustained in
the eyes of law. Therefore, both of petitions are allowed and the
finding recorded in para nos. 98 to 100 of the impugned judgment
being incorrect and improper qua the petitioners, are liable to be
and is hereby set aside.
23. The criminal revisions are allowed and disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
vindesh
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-08-2023
17:12:08
