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2008 (8) TMI 955 - SC - Indian LawsPower of Judicial Magistrate to entertain application filled u/s 319 after 8- 10 years - time limit prescribed to entertain application - recall an order of summoning the accused - Whether in Absence of sanction as envisaged by Section 197, No Prosecution could be launched? HELD THAT:- The contention of the ld counsel for respondent No. 2 is that the power u/s 319 of the Code, cannot be exercised belatedly by the Court. Again, such order can be made only on the application by the Public Prosecutor or by some person other than the accused. In other words, an application u/s 319 cannot be filed by a person who is facing the trial. We are unable to uphold the contentions. We have quoted Section 319 of the Code. It nowhere states that such an application can be filed by a person other than the accused. It also does not prescribe any time limit within which such application should be filed in the Court. When applications u/s 319 of the Code were preferred by the appellant praying to join respondent No.2 as an accused and to issue summons, the ld Magistrate considered the evidence of prosecution witnesses and he was satisfied that depositions of witnesses prima facie made out offence against respondent No.2. Admittedly, the Judicial Magistrate had considered a limited question whether on the basis of evidence of prosecution witnesses, prima facie offence had been made out against respondent No.2. He was, on the basis of such evidence, was satisfied that the case was required to be gone into and issued a summons. To us, the Revisional Court was not right in interfering with that order. Hence, even on that ground, the order was not in accordance with law. Ld counsel for respondent No.2, however, submitted that the Revisional Court was right in any case in allowing the revision and in quashing proceedings against the said respondent on the ground of absence of sanction as required by Section 197 of the Code. We express our inability to agree with the ld counsel. It is settled law that offences punishable u/s 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while ‘acting or purporting to act in discharge of official duty’. The Revisional Court was aware of legal position. It was, however, held by the Court that at the most there was negligence on the part of respondent No.2 but there was no criminal intent and he cannot be held criminally liable. We have already held that mens rea can only be decided at the time of trial and not at the stage of issuing summons. Moreover, a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order of the Revisional Court deserves to be set aside even on that ground. It was also urged that no applications by the appellant could have been entertained by the trial Court after about 8 to 10 years from the date of filing of FIR. Now, an application u/s 319 of the Code can only be made to a Court and the Court may exercise the power under the said Section if it appears from evidence that any person other than the accused had also committed an offence for which he can be tried together with the accused. It was the case of the appellant that it was during the course of prosecution evidence that he came to know that signatures of respondent No. 2 were sent for examination, some report was received by the prosecution which was not produced in Court and on the basis of such evidence, the case was made out against respondent No.2. If in these circumstances, applications were made and the prayer was granted, we see no infirmity therein. In the totality of the facts and circumstances, the submission of the ld counsel for the appellant that the State Authorities were helping and assisting respondent No.2 cannot be said to be totally ill-founded or without substance. The State, in our opinion, could have easily avoided such embarrassment. Therefore, the appeal deserves to be allowed and is accordingly allowed. The orders passed by the Additional Sessions Judge and the High Court are set aside and the order passed by the Judicial Magistrate is restored. Since the matter pertains to FIR of 1986, the ld Magistrate is directed to conclude the trial expeditiously. We may clarify that we have not entered into allegations and counter-allegations. We have considered the facts and circumstanced to a limited extent to decide correctness of the order passed by the Judicial Magistrate under Section 319 of the Code. Ordered accordingly.
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