IMPORTANT POINT : Power to array additional accused has to be exercised on the basis of evidence – It is only material collected by court during course of inquiry or trial and not material collected by investigating agency during investigation of case which can be used, while arraigning an additional accused.

JUDGMENT :

1. The petitioner has challenged order dated 01.09.2015 passed by learned Special Judge, Anticorruption, Srinagar, whereby the petitioner has been arraigned as an accused in a charge sheet filed by respondent No.1 against respondents No.2 to 4 alleging commission of offences under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act (hereinafter referred to as the J&K PC Act) and Sections 120-B, 201 and 204 RPC.

2. As per the allegations made in the charge sheet, accused/respondents No.2 to 4, in furtherance of a conspiracy, placed supply orders for purchase of agricultural equipments and hybrid seeds on highly exorbitant rates. It was alleged that supply orders for 650 irrigation pump sets were placed with M/S Honda Siel, New Delhi and M/s A.V. Agri-Tech, New Delhi, in the month of February, 2006, on the rate contract that had already expired and the above named accused resorted to manipulation of records thereby predating the supply orders. After investigation of the case, on the basis of oral and documentary evidence prima facie it was established that respondents No.2 to 4, the public servants, have committed offences punishable under Section 5(1)(2) read with 5(2) of J&K PC Act and Sections 120-B, 201 and 204 RPC. Accordingly, the charge sheet was laid before the learned Special Court.

3. On 27.10.2009, learned Special Judge took cognizance of the offences and the copies of charge sheet were furnished to the accused named in the challan whereafter the matter was put up for arguments on the question of charge/discharge. On 01.09.2015, arguments on the question of charge/discharge were heard by the learned Special Judge and while observing that the material on record prima facie establishes that the offences punishable under Section 5(1)(2) read with 5(2) of J&K PC Act and Sections 120-B, 201 and 204 RPC have been committed by the accused named in the charge sheet, it was further observed that the material on record establishes complicity of the supplier i.e. proprietor of M/S J&K Stationers, Srinagar, in the commission of aforesaid offences as, according to the learned Special Judge, the aforesaid supplier i.e. the petitioner herein, was a beneficiary of the conspiracy. On the basis of these observations, the learned Special Judge exercised his powers under Section 351 of the J&K Cr.P.C., which corresponds to Section 319 of the Central Cr.P.C., and arraigned the petitioner herein as an accused in the case. It is this order which is under challenge before this Court by way of the instant petition.

4. The petitioner has challenged the impugned order on the ground that the reason for arraying him as an accused is patently absurd. It has been submitted that the supply order was not placed with the petitioner but it was placed directly with M/S Honda Siel Power Products Ltd. which has its registered office at Greater Noida, UP, and the petitioner is only a dealer of the aforesaid company. It has been further contended that the reliance placed by the learned Special Judge while passing the impugned order on the ratio laid down by the Supreme Court in the case of Hardeep Singh and others vs. State of Punjab, (2014) 3 SCC 92, is misplaced as the learned Special Judge has exercised his powers under Section 351 of the J&K Cr.P.C. at a stage when evidence was yet to be recorded. It has been submitted that the learned Special Judge had no jurisdiction to array the petitioner as an accused on the basis of material collected by the investigating agency.

5. Respondent No.1 has contested the petition by filing its reply thereto. In its reply, respondent No.1 has reiterated the facts alleged in the charge sheet and has supported the impugned order passed by the learned Special Judge.

6. I have heard learned counsel for the parties and perused the material on record.

7. The question of law which is required to be determined in this case is as to at which stage of the proceedings a person, who is not named