Madhya Pradesh High Court
Pradeep Bafna vs The State Of Madhya Pradesh on 5 February, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 05th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 25409 of 2023
BETWEEN:-
1. PRADEEP BAFNA S/O SHRI KOMAL BAFNA, AGED
ABOUT 55 YEARS, OCCUPATION: BUSINESS R/O
BADAVADA TEHSIL JAORA DISTT. RATLAM
(MADHYA PRADESH)
2. SHALU BAFNA W/O SHRI PRADEEP BAFNA, AGED
ABOUT 50 YEARS, OCCUPATION: HOUSEWIFE R/O
BADAVADA, TEHSIL JAORA, DISTRICT RATLAM
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI JAGDISH BAHETI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
STATION HOUSE OFFICER POLICE STATION
JAORA, DISTRICT RATLAM (MADHYA PRADESH)
2. PROSECUTRIX X (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJAY RAJ GUPTA - PANEL LAWYER)
-------------------------------------------------------------------------------------------------
Reserved on : 09.11.2023
Pronounced on : 05.02.2024
.....................................................................................................
This application coming on for admission this day, the court
Signature Not Verified
Signed by: MONI RAJU
Signing time: 2/5/2024
6:05:16 PM
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passed the following:
ORDER
01] This petition has been filed by the petitioners under Section
482 of Cr.P.C. against the order dated 11.03.2023, passed in S.T.
No.52/2021 by First Additional Sessions Judge, Jaora District Ratlam
(M.P) wherein the two persons are facing trial under Sections 376(2)
(n), 450, 385, 506, 328, 411, 420, 120-B, 354 (G), 201, 176 of IPC
and Section 66-E of the Information & Technology Act, 2000.
02] The allegations against the petitioners are that they happen to
be the mother and father of the main accused Nishit @ Mayur and
they were proceeded under Section 319 of the Cr.P.C. as the
application was filed by the respondent/prosecution under Section 319
of the Cr.P.C. that the petitioners be also prosecuted in the said
offence. The application was filed on 11.03.2023, when the matter
was already fixed for cross-examination of the prosecution witnesses,
and on the same day, it was allowed and the charges were also
framed, and the petitioners were asked to cross-examine the accused
persons. Against the petitioners, charges under Sections 385, 506-II
r/w Section 120-B of the IPC has been framed. Thus, the main
allegation is of extortion.
03] Counsel for the petitioners have submitted that the aforesaid
mode adopted by the trial Court runs contrary to the criminal
jurisprudence as it was necessary for the trial Court to furnish the
copy of the charge-sheet to the petitioners. It is also submitted that
even assuming the statements of the witnesses to be correct, there is
almost no chance that the prosecution would be able to prove the
involvement of the present petitioners in the case as their names has
not been mentioned by the prosecutrix in the FIR and also in her
statement recorded under Section 161 of the Cr.P.C.
04] Counsel for the petitioners further submitted that prosecutrix's
statement under Section 161 of the Cr.P.C. was recorded on
24.08.2021 and thereafter supplementary statement was recorded
under Section 164 of the Cr.P.C. dated on 01.11.2022 but she has not
stated that the present petitioners were involved in any manner. In
support of his contention, Shri Baheti has also relied upon the
decision of Supreme Court in the case of Michael Machado And
Another vs. Central Bureau of Investigation and Another, reported
in 2000 (2) Crimes 23 (SC).
05] On the other hand, counsel for the respondent/State has
opposed the prayer and submitted that no case for interference is
made out as the prosecutrix has clearly stated in her statement
recorded under Section 164 of the Cr.P.C. on 01.11.2022, that the
present petitioners who are the parents of the main accused were also
involved in the crime as they also knew about the prosecutrix was
being raped and blackmailed by the main accused but they kept mum.
It is also submitted that the prosecutrix, in her court deposition dated
01.11.2022, has also stated that the parents of the main accused were
also involved in the crime. Thus, it is submitted that the trial Court
has rightly invoked the provisions of Section 319 of the Cr.P.C. In
support of his contention, learned counsel for the respondents has also
placed reliance upon the judgment passed by the Apex Court in the
case of Yashodhan Singh vs. The State Of Uttar Pradesh (Criminal
Appeal No.2186/2023 (@ Special Leave Petition (Crl.)
NO.6262/2023) decided on 18.07.2023 reported as (2023)9SCC108.
06] Heard. From the perusal of the record, this Court finds it
rather shocking that not only the entire procedure as prescribed under
Section 319 of the Cr.P.C. was conducted on 11.3.2023, but even the
petitioners were directed to appear on the same day, their bail
applications were allowed on the same day, and charges were framed
on the same day i.e. on 11.3.2023, and they were also directed to
cross examine the witnesses present. Although an option was given by
the learned Judge of the trial court to re-call the witnesses already
examined as their examination in chief was already conducted, hence,
counsel for the petitioners has given the consent to re-examine them
on the same day.
07] Be that as it may, this Court is also required to examine
whether prima-facie, any case is made out against the petitioners or
not?
08] At this juncture, it would be apt to refer to the decision relied
upon by Shri Baheti in the case of Michael Machado v. CBI, (2000),
the relevant paras of the same read as under:-
"10. Powers under Section 319 of the Code can be invoked in
appropriate situations. This section is extracted below:
"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."
11. The basic requirements for invoking the above section
is that it should appear to the court from the evidence
collected during trial or in the inquiry that some other
person, who is not arraigned as an accused in that case, has
committed an offence for which that person could be tried
together with the accused already arraigned. It is not enough
that the court entertained some doubt, from the evidence,
about the involvement of another person in the offence. In
other words, the court must have reasonable satisfaction
from the evidence already collected regarding two aspects.
First is that the other person has committed an offence.
Second is that for such offence that other person could as
well be tried along with the already arraigned accused.
12. But even then, what is conferred on the court is only a
discretion as could be discerned from the words "the court
may proceed against such person". The discretionary power
so conferred should be exercised only to achieve criminal
justice. It is not that the court should turn against another
person whenever it comes across evidence connecting that
other person also with the offence. A judicial exercise is
called for, keeping a conspectus of the case, including the
stage at which the trial has proceeded already and the
quantum of evidence collected till then, and also the amount
of time which the court had spent for collecting such
evidence. It must be remembered that there is no compelling
duty on the court to proceed against other persons.
13. In Municipal Corpn. of Delhi v. Ram Kishan Rohtagi
[(1983) 1 SCC 1:1983 SCC (Cri) 115] this Court has struck
a note of caution, while considering whether the prosecution
can produce evidence to satisfy the court that the other
accused against whom proceedings have been quashed or
those who have not been arrayed as accused, have also
committed an offence in order to enable the court to take
cognisance against them and try them along with the other
accused. This was how learned Judges then cautioned: (SCC
p. 8, para 19)
"But, we would hasten to add that this is really
an extraordinary power which is conferred on the
court and should be used very sparingly and only if
compelling reasons exist for taking cognisance
against the other person against whom action has not
been taken."
14. The court while deciding whether to invoke the power
under Section 319 of the Code, must address itself about the
other constraints imposed by the first limb of sub-section
(4), that proceedings in respect of newly-added persons shall
be commenced afresh and the witnesses re-examined. The
whole proceedings must be recommenced from the
beginning of the trial, summon the witnesses once again and
examine them and cross-examine them in order to reach the
stage where it had reached earlier. If the witnesses already
examined are quite large in number the court must seriously
consider whether the objects sought to be achieved by such
exercise are worth wasting the whole labour already
undertaken. Unless the court is hopeful that there is a
reasonable prospect of the case as against the newly-brought
accused ending in being convicted of the offence concerned
we would say that the court should refrain from adopting
such a course of action."
(emphasis supplied)
09] On perusal of the charge sheet, it is found that in the FIR, which
was lodged by the prosecutrix on 29.7.2021, in respect of the incident,
which took place between 01.03.2019 to 15.7.2021, only Nishit @
Mayur Bafna has been named as an accused along with one unknown
person. The aforesaid FIR was lodged on a written complaint made
by the prosecutrix herself, and neither in the written complaint nor in
the FIR, there is any reference of the present petitioners as the persons
who have also threatened the prosecutrix and connived at the offence
committed by their son. Although it is mentioned in the written
complaint that Nishit @ Mayur Bafna and the other person are
responsible for the offence however, there is no reason for this Court
to believe that the complainant/prosecutrix would miss the names of
the present petitioners while lodging the FIR, especially when they
are the father and mother of the main accused Nishit @ Mayur Bafna.
Thus, the FIR was lodged on 29.7.2021, but the names of the present
petitioners came into light for the first time on 30.07.2021, in the
statement recorded by the prosecutrix under Section 164 of the
Cr.P.C., and in her court deposition dated 01.11.2022 she has also
stated that the present petitioners demanded money and jewelry from
her. It is also found prior to that, in her statement under Section 161
of the Cr.P.C. were recorded on 29.7.2021 and thereafter her
supplementary statement was recorded 24.8.2021, and the prosecurtix
has not named the present petitioners in both her 161 statements, and
in the supplementary statement, in which she has only stated that the
main accused Nishit's friends and family members used to come to
take jewelry.
10] A perusal of the charge sheet also reveals that admittedly, no
incriminating material has been seized from the present petitioners. In
such facts and circumstances of the case, the petitioners appear to
have been arraigned as accused only because they happen to be the
father and mother of the main accused.
11] In the considered opinion of this Court, merely because the
complainant/prosecutrix has named the petitioners in her statement
under Section 164 of the Cr.P.C. dated 01.11.2022, as also in the trial
court in her deposition dated 24.8.2021, in the absence of their names
being disclosed in the FIR dated 29.7.2021, which was lodged on the
basis of a written complaint submitted by the prosecutrix on the same
day, which was already delayed by around 2 and half years, and in her
statement recorded under Section 161 of the Cr.P.C. dated 29.07.2021
and supplementary statement dated 24.8.2021, the prosecutrix has
also not named of the petitioners, it is difficult to assume that the
petitioners were also involved in the present case.
12] This Court is cognizant of the fact that it is a trite law that the
FIR is not an encyclopedia, however, considering the fact that there is
a general tendency of a victim of crime to implicate all the family
members of the main accused in order to settle the personal score, this
Court is also required to look into the matter from the perspective of a
reasonable man, as to how he would have behaved or acted in the
given circumstances, and thus, seen from the said perspective, it is
difficult for this court to assume that when the crime is said to have
committed during the period of around two and a half years, while
lodging the written complaint, the proseutrix would miss the names of
the petitioners who are none other than the parents of the main
accused, and from whom no recovery has also been made. In such
circumstances, in the considered opinion of this court, it is difficult to
arrive at a satisfaction that the petitioners have committed the offence.
13] Resultantly, the impugned order dated 11.3.2023 cannot be
sustained in the eyes of law and is hereby quashed. The
consequential proceedings so far as they relate to the present
petitioners in Sessions Trial No.52/2021 before the First Additional
Sessions Judge, Jaora, District-Ratlam (M.P.) are also hereby quashed
and the petitioners are discharged from the aforementioned offences.
14] So far as the case of Yashodhan Singh (supra) is concerned, the
same is distinguishable on facts as in that case, the challenge was
made on the ground that the accused was not heard before the
cognizance u/s.319 of Cr.P.C. was taken by the trial court, and the
Supreme Court held that there is no necessity to give any notice to the
accused.
15] So far as the other accused persons are concerned, the trial
court shall proceed against them in accordance with law.
With the aforesaid, the present petition stands allowed.
(SUBODH ABHYANKAR)
JUDGE
vs/moni
