TMI Blog2008 (8) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... ime 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. - C. K. THAKKER AND D. K. JAIN, JJ. For the Appellant : Mr. Rishi Malhotra, Adv. For the Respondent : Mr.K uldip Singh, Adv., Mr. P.N. Pu ri, Adv. JUDGMENT C. K. Thakker, J. 1. Leave granted. 2. The present appeal is filed by the appellant-accused against the order passed by the Additional Sessions Judge, Barnala on March 5, 1998 in Criminal Revision Nos. 11 and 12 of 1997 and confirmed by the High Court of Punjab Haryana on November 26, 2006 in Criminal Revision Nos. 401 and 402 of 1998. 3. To appreciate the issues raised in the present appeal, few relevant facts may be stated. 4. On August 21, 1986, First Information Report (FIR) No. 87 was lodged against the appellant for commission of offences punishable under Sections 409, 420, 467, 468 and 471of the Indian Penal Code (IPC). The allegation in the FIR was that the appellant was a Clerk in Government High School, Rurke Kalan. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted March 12, 1997 dismissed the application of respondent No. 2 holding it to be not maintainable in view of dismissal of revision of the State by the Additional Sessions Judge. 9. Being aggrieved by the order passed by the Judicial Magistrate, respondent No. 2 filed two Revision Petitions before the learned Additional Sessions Judge. The learned Judge allowed the revisions of respondent No. 2 and set aside the order dated January 22, 1996 passed by the Judicial Magistrate adding respondent No. 2 as an accused and summoning him. The said order was passed on March 5, 1998. 10. The appellant challenged both the orders by approaching the High Court by instituting two revision petitions. The High Court, however, dismissed both the revisions and confirmed the order passed by the learned Additional Sessions Judge. The said order is challenged in the present appeal. 11. On January 19, 2007, notice was issued by this Court. On February 15, 2007, further proceedings were stayed. Considering the controversy and issues involved, the Registry was directed to place the matter for final hearing. Accordingly, the matter was placed before us. 12. We have heard the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him were not maintainable. The counsel urged that when the Additional Sessions Judge allowed the revisions filed by respondent No. 2 and the said order was confirmed by the High Court, this Court may not interfere with it in exercise of discretionary jurisdiction under Article 136 of the Constitution. It was, therefore, submitted that the appeal may be dismissed. 17. The learned Government pleader appearing for respondent No. 1 adopted the arguments of learned counsel for respondent No. 2 and submitted that the appeal deserves to be dismissed. 18. Having heard the learned counsel for the parties and in the light of the relevant provisions of law as also judicial pronouncements to which our attention has been invited by the learned counsel for the parties, in our opinion, the appeal deserves to be allowed. 19. Section 319 of the Code empowers a Court to proceed against any person not shown to be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused. 20. Section 319 of the Code reads thus; 319. Power to proceed against other persons appearing to be guilty of offence.-- (1) Where, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that signatures of respondent No. 2 were also taken and were sent for examination and a report was received showing that the signatures on the basis of which amount was withdrawn tallied with the signatures of respondent No. 2. The said report, however, was not filed by the prosecution. It was in these circumstances that the appellant made applications in 1994 and in 1996 under Section 319 of the Code requesting the learned Magistrate to join respondent No. 2 as accused and to summon him. 24. The contention of the learned counsel for respondent No. 2 is that the power under Section 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 under Section 319 cannot be filed by a person who is facing the trial. 25. 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. 26. Let us consider few leading decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted; As regards the contention that the phrase any person not being the accused occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression . (emphasis supplied) (See also Rakesh v. State of Haryana, (2001) 6 SCC 248) 33. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi Ors., (1983) 1 SCC 1, the Food Inspector, noticing adulteration in Morton Toffees , filed a complaint against the Company, its Managing Director as well as Directors under the Prevention of Food Adulteration Act, 1954. The Managing Director and Directors approached the High Court by invoking Section 482 of the Code for quashing of proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused which was rejected by the trial Court. Meanwhile, the trial proceeded further against the other accused and they were convicted. The High Court directed the trial Court to proceed against Lok Ram. The said order was challenged by Lok Ram in this Court. 37. Dismissing the appeal, referring to earlier decisions of this Court on the point and explaining the scope of Section 319 of the Code, the Court stated; On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatory to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319 (4). The words could be tried together with the accused in Section 319(1), appear to be only directory. Could be cannot under these circumstances be held to be must be . The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is his judicial discretion. No specific provision required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused . (emphasis supplied) 45. The correctness of K.M. Mathew again came up for consideration before a three-Judge Bench of this Court in Adalat Prasad v. Rooplal Jindal Ors., (2004) 7 SCC 338. In Adalat Prasad, the accused, after issuance of summons against him by the trial Magistrate, filed an application under Section 203 of the Code for dismissal of complaint recalling the order of summons. After hearing the parties, the Magistrate granted the prayer and recalled the summons. The order of the Magistrate was challenged by the complainant in the High Court inter alia on the ground that the Magistrate had no jurisdiction to recall the earlier order. The High Court allowed the petition. The accused approached this Court. 46. When the matter was placed for preliminary hearing, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasis supplied) 49. Dealing with the contention that an aggrieved party must have a remedy if a Magistrate takes cognizance of an offence without there being any allegation against the accused, the Court stated; It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code . (emphasis supplied) 50. The law laid down in Adalat Prasad was followed and reiterated by this Court in subsequent cases also [see Subramaniam Sethuraman v. State of Maharashtra, (2004) 13 SCC 324; N.K. Sharma v. Abhimanya, (2005) 13 SCC 213; Everest Advertisement v. State Government of NCT of Delhi, (2007) 5 SCC 54]. 51. From the above discussion, it is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie bad in law, it is open to the aggrieved party to invoke inherent jurisdiction of the High Court under Section 482 of the Code. If the High Court is satisfied that the order passed by the Magistrate was illegal, improper or arbitrary, it can exercise inherent powers and quash criminal proceedings initiated against the party. But that power is independent and has nothing to do with recalling of an earlier order by the Court which passed it. 56. But in the present case, even on merits, we are of the considered view that the order passed by the learned Magistrate issuing summons to respondent No.2 could not be said to be unlawful or even improper. 57. When applications under Section 319 of the Code were preferred by the appellant praying to join respondent No.2 as an accused and to issue summons, the learned Magistrate considered the evidence of prosecution witnesses and he was satisfied that depositions of witnesses prima facie made out offence against respondent No.2. 58. Considering the statements of PW2- Treasury Officer, PW14-Senior Assistant and PW11-Assistant Manager, State Bank of Patiala, the learned Magistrate stated; I have heard the learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are subject matter of embezzlement, do not bear the signatures of Sher Singh who was DDO of Rureke Kalan High School, so, there is prima facie offence made out to summon Sher Singh, Head Master of Rureke Kalan High School as accused u/s 319 of Cr.P.C. is hereby allowed and Sher Singh, Head Master of Government High School of Rure Ke Kalan is ordered to be summoning as an accused in this case for 1.3.1996. The application of the accused is hereby allowed and is disposed of accordingly . 59. We may recall at this stage that a revision filed by the State (and not by respondent No.2) against the order of the Magistrate was dismissed by the Assistant Sessions Judge on May 6, 1996. 60. The Revisional Court also considered the deposition of aforesaid witnesses and said; After going through the impugned order, I find that it was found by trial Magistrate that certain bills have been passed by Sher Singh who was disbursing officer, and PW 14 Prem Sagar, Assistant in the office of Treasury deposed that drawing disbursing officer was Headmaster of Rureke Kalan High School and his name was Sher Singh who was appended his signatures on the bills which tally with the specimen signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht in interfering with the order passed by the trial Court. We have seen that the learned Magistrate issued summons taking into account evidence led by the prosecution, particularly, by PWs 2, 14 and 11. The Revisional Court was thus having depositions of those witnesses, the order passed by the learned Magistrate, the order made by the Assistant Sessions Judge in revision instituted by the State and also the order passed by the Magistrate in an application to recall filed by respondent No.2. 64. In spite of the above material, the Revisional Court interfered with the order of the trial Court issuing summons by entering into merits of the case. 65. The Court said; As stated above, as per prosecution case during the period from 1979 to 1986 accused Bholu Ram was the Clerk of Govt. High School, Rureke Kalan while Sher Singh revision/petitioner appeared to be the Head Master of the School during the relevant period. It appears that during that period accused Bholu Ram had been drawing various payments from the Treasury by submitting false and bogus Mills to the Treasury, but did not appear to have disbursed the amount of those bills to any person and allegedly mis-appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 68. We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sections 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 [vide Prakash Singh Badal v. State of Punjab, (2007) 1 SCC 1]. 69. 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 sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No.2 who, in his counter, refers to both the decisions. In the totality of the facts and circumstances, the submission of the learned 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. 73. For the foregoing reasons, 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, Barnala is restored. Since the matter pertains to FIR of 1986, the learned Magistrate is directed to conclude the trial expeditiously. 74. Before parting with the matter, 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. We make it clear that we may not be understood to have expressed any opinion on the merits of the matter. As and when the case will come up for hearing, it will be decided strictl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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