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2017 Supreme(MP) 261
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BENCH
S.K. Awasthi, J.
Virendra Singh - Applicant
Versus
State of M.P. & another - Respondents
Criminal Revision No. 369 of 2016
Decided On : 14-07-2017
Advocate Appeared:
For the Applicant : Shri Atul Gupta
For the Respondents: Shri R.K. Awasthi, Shri R.K. Sharma, Shri V.K. Agarwal
The evidence presented under Section 319 of Cr.P.C. must justify implicating the proposed accused, and presumptive evidence may not be sufficient to do so.
Headnote:
Section 319 - Criminal Procedure Code - 319 - Summary
Fact of the Case:
The applicant filed multiple applications under Section 319 of Cr.P.C. to implead the respondent No. 2 as an accused in a pending sessions trial. The applications were dismissed by the trial court and higher courts, leading to the present revision application.
Finding of the Court:
The court found that the evidence presented by the applicant was presumptive in nature and did not justify implicating the respondent No. 2 as an accused. It held that the trial court had correctly decided the application under Section 319 of Cr.P.C. and dismissed the revision application. The court also imposed a cost on the applicant for filing a frivolous application.
Issues: The main issue was whether the evidence presented justified implicating the respondent No. 2 as an accused under Section 319 of Cr.P.C.
Ratio Decidendi: The court's decision was based on the finding that the evidence relied upon by the applicant was presumptive and did not dilute the material collected by the police, indicating that the respondent No. 2 was not present at the place of the incident at the relevant time.
Final Decision: The revision application was dismissed, and a cost of Rs. 10,000/- was imposed on the applicant for filing a frivolous application under Section 319 of Cr.P.C.
S.K. Awasthi, J.
This is third visit of the applicant to this Court with reference to the same prayer under Section 319 of Cr.P.C. relating to impleading the respondent No. 2 as an accused in the sessions trial No. 83/2011, pending before Second Additional Sessions Judge, Joura, District Morena (MP), which has been rejected by the trial Court vide order dated 15.03.2016.
2. The facts relevant for the adjudication of the instant case are that, the respondent No. 1, police station registered an FIR bearing crime No. 230/2010 relating to an incident occurred on 03.11.2010 at 12:30 pm. As per the complaint, the deceased-Shiv Kumar and the complainant were on their way to purchase kerosene. The respondent No. 2 alongwith other co-accused persons obstructed the way by surrounding them and thereafter, it has been alleged that the respondent No. 2 fired a gunshot on the chest of the deceased leading to his death. The FIR meticulously narrated the incident and in an unambiguous manner indicated the time of the incident i.e. 12:30 pm. The police proceeded to investigate the matter and after investigation, it was discovered that the respondent No. 2 was at ICICI Bank ATM located at Hazira, district Gwalior which is at the distance of 50 k.m. from the place of incident. Due to this revelation, the police dropped the name of the respondent No. 2 at the time of filing of charge-sheet, however, named all other persons whose overt-act was mentioned in the FIR.
3. After filing of the charge-sheet, an application under Section 319 of Cr.P.C. was preferred by the applicant on 03.04.2012, after recording of the statement of Virendra Singh (PW-1) before the Court. This application was dismissed by the trial court and the dismissal was assailed by filing a revision application before the High Court bearing criminal revision No. 455/2012, which was disposed of with a direction to the trial Court to consider the said application afresh after affording opportunity of hearing to all concerned persons. This observation led to filing second application under Section 319 of Cr.P.C. This second application again suffered the same fate as the earlier one and was dismissed vide order dated 03.04.2013. The applicant being discontent with the outcome of the second application under Section 319 of Cr.P.C. preferred a criminal revision No. 314/2013 which was decided on 27.03.2014 by this Court. The order passed by this Court was descriptive in nature and dealt with all the contentions as were available at relevant point of time. However, upon finding no merit in the revision application and in absence of any material which may dilute the evidence collected by the respondent No. 1, the same was dismissed.
4. The matter escalated to the Hon'ble Supreme Court by filing SLP(criminal) No.21299/2014. Although the Hon'ble Supreme Court did not show any indulgence to the matter but reserved liberty to the trial Court to take cognizance against the respondent No. 2 in case any further evidence comes into light. The perusal of the order dated 17.11.2014 reflects that an emphasis has been laid on the phrase further evidence.
5. In this background, the trial proceeded before the trial Court and statement of four more witnesses, namely, Dr. Sanjeev Bandil (PW-2), Parimal (PW-3), Damodar (PW-4) and Dilip (PW-5) were recorded. At this stage, another application under Section 319 of Cr.P.C. was moved on 09.09.2015, on the ground that the Hon'ble Apex Court had reserved liberty for filing of the fresh application if any further evidence comes into light. Such application was dismissed vide the impugned order dated 15.03.2016, on the ground that no further evidence has surfaced to validate filing of application under Section 319 of Cr.P.C.
6. The learned counsel for the applicant submits that the trial Court has wrongly appreciated the liberty reserved by the Hon'ble Supreme Court in its order dated 17.11.2014 because the Hon'ble Supreme Court had categorically observed that if
