Ashok Shankarrao Fokmare & others vs Sau Sujata Nitinrao Tidke & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 466

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
J.N. Patel, J.
Dr. Ashok Shankarrao Fokmare others..... Petitioners.
Versus
Sau Sujata Nitinrao Tidke others..... Respondents.
Criminal Revision Application No. 69 of 1999 , decided on 8-7-1999.
Advocates appeared :
A.M. Ghare, for the petitioners.
Mrs. Sharda Wandile, A.P.P., for respondent No. 2.

Headnote:Sections 156(3) and 173-On completion of investigation, charge sheet filed in Court-Prosecution thereafter applying for adding some more persons as accused who were not so named in the charge-sheet-Proper course was to apply to the Magistrate for further investigation under Section 156(3) of the Code.-On completion of investigation, charge-sheet was filed in the Court of the Judicial Magistrate, First Class. The prosecutor thereafter applied for addition to names of some more persons as accused whose name were not shown as accused in the charge-sheet. The Magistrate rejected the application on merits. The complainant challenged the said order in revision application before the Sessions Court which set aside the order of the Magistrate and directed that the said application be kept pending till the stage of recording of evidence. In revision application by the persons sought to be added as accused.
Held, that the opinion of the Police as to whether the final report under Section 169, Cr PC or charge-sheet under Section 173 of Cr PC is to be submitted against suspects, is to be formed on the material collected by the investigation. It is the function of the police and not the Magistrate. If the Magistrate disagrees with the opinion so formed by the Police, he may take suitable action, but he cannot impinge upon the jurisdiction of the Police by compelling them to change the opinion. If the APP was not satisfied by the fact that all the persons are not being prosecuted, then he could have applied to the Magistrate for directions to the Police under Section 156(3), Cr PC to make further investigation and on such direction, the Police, after such further investigation, may submit the charge-sheet against such persons or again submit the same report depending upon further investigation made in the n1atter. The Prosecutor did not seek any such directions and merely sought for addition of the applicants as accused, which was not proper. Application filed by prosecution for adding names of applicants as accused rejected with observations that it was open for the prosecution to seek directions for further investigation under Section 156(3) of the Code or make out a case under Section 319 of the Code after examination of prosecution witnesses.
Section 319-Section 319 of the Criminal Procedure Code will apply only if after recording of evidence during any enquiry or trial the prosecution finds it necessary to proceed against any person other than the accused appearing to be guilty of the offence.-In order to apply Section 319 of the Criminal Procedure Code, 1973, it is essential that the need to proceed against the person other than the accused appearing to be guilty of the offence arises only after evidence is recorded in the course of any enquiry or trial as Section 319 confers power on the Court to proceed against any person not being the accused appearing to be guilty of the offence on the basis of such evidence.

JUDGMENT - J.N. PATEL, J.:---Rule. By consent, heard forthwith.

2. The applicants have impugned the order dated 22-3-1999 passed by the Additional Sessions Judge, Akola, in Criminal Revision No. 177 of 1998. The challenge is limited to the operative part of the order which records that after recording the evidence of the complainant and her witnesses, the lower Court is directed to give hearing to the parties on Exh. 20 again and further direction to keep the application Exh. 20 pending till the completion of recording of the evidence of the complainant and her witnesses.

3. On the report of Sau Sujata Nitinrao Tidke, the Police Station, Civil Lines, Akola, registered Crime No. 605 of 1996 against seven persons which included the applicants, for having committed an offence under section 498-A r/w 34 of I.P.C. On completion of the investigation, charge-sheet came to be filed in the Court of Judicial Magistrate, First Class, Court No. 4, Akola, which came to be registered as Criminal Case No. 323 of 1997. It so happened that the applicants were not prosecuted as their names did not appear in the column of accused in the chargesheet filed by the police and, therefore, the prosecutor filed an application before the learned Magistrate for addition of applicants as accused and the same came to be marked as Exh. 20. After hearing the learned A.P.P., the learned Magistrate rejected the application on 27-2-1998, observing that no prima facie case is made out against the said persons viz. Dr. Fokmare, Sau. Ujwala Hingankar, Vinod Hingankar and Sau Vaishali Fokmare, i.e. the applicants as far as offence under section 498-A I.P.C. is concerned. Hence the application was rejected. This order of the learned Magistrate came to be challenged before the Court of session at Akola, by the complainant Sau Sujata Nitinrao Tidke in Criminal Revision No. 177 of 1998. The learned Additional Sessions Judge, Akola, after examining the provisions of section 319 of Criminal Procedure Code, came to the finding that prima facie from the complaint, the case against the applicant is made out. But, the P.S.O. Civil Lines, Akola, did not implead the applicants as accused in the chargesheet and, therefore, request of the Prosecutor to add their names as accused was genuine and the finding of the trial Court that prima facie there is no evidence, was not proper. The learned Additional Sessions Judge, Akola, therefore, stated that in her view, prima facie, there is involvement of the persons whose names are mentioned in the complaint. However, stage to add the accused is yet to reach and, therefore, quashed and set aside the order below Exh. 20 passed by the learned Magistrate, and directed the lower Court to rehear Exh. 20 by keeping it pending till the stage of recording of the evidence of the complainant and her witnesses is over.

4. Mr. Ghare, the learned Counsel for the applicants, submitted that the application Exh. 20 for addition of the accused made by the learned A.P.P. could not have been made by the prosecution as there is no procedure prescribed under the Criminal Procedure Code. Therefore, the learned Magistrate was justified in rejecting the application. It is further submitted that even if the applicants are required to be impleaded as accused, it is only after the trial Court records the evidence in the case and come to a finding that the persons other than the accused chargesheeted before it, have also committed the offence and then it would fall within the purview of section 319 Cr.P.C. therefore, the direction of the learned Additional Sessions Judge to keep the application for addition of accused filed by the Prosecutor alive and to consider it subsequently, is nothing but an error committed by the learned Additional Sessions Judge who ought to have rejected the application.

5. Mr. Ghare submitted that he has no grievance in respect of other part of the order directing the trial Court to exercise his powers under section 319 Cr.P.C. at the appro

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