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IN THE HIGH COURT OF MADHYA PRADESH
Sanjay Dwivedi, J.
Yash Vardhan Singh & Ors. – Appellants
Versus
State of Madhya Pradesh – Respondent
M.Cr.C. No. 10802 of 2014
Decided On : 03-11-2023
Section 319 - Quashing of Order - 319/193 of Cr.P.C. - [Sections 307/376 (2A)/436 of the Indian Penal Code] - The court discussed the provisions of Section 319 of the Code of Criminal Procedure and the scope of exercising the power under this section. It highlighted the need for evidence and the guidelines to be followed by the court while exercising such power. The court emphasized that the power of Section 319 should be exercised sparingly and only in exceptional circumstances, and it should be based on more than a prima facie case but short of satisfaction to an extent that evidence, if not rebutted, may lead to conviction of the person sought to be added as an accused.
Fact of the Case:
The petitioner sought quashing of an order passed by the trial Court directing the inclusion of the petitioner as an accused in a criminal case based on the statements of witnesses. The petitioner argued that the trial Court's reliance on the witnesses' statements was unfounded as they did not implicate the petitioner, and the CID investigation found the petitioner's absence at the crime scene.
Finding of the Court:
The court found that the trial Court's exercise of power under Section 319 of Cr.P.C. to include the petitioner as an accused was contrary to the evidence and was deemed as perverse. It emphasized the need for evidence and the sparing exercise of such power, ultimately setting aside the impugned order in respect of the petitioner.
Issues: The issues revolved around the trial Court's reliance on witnesses' statements to include the petitioner as an accused, the absence of evidence implicating the petitioner, and the proper exercise of power under Section 319 of Cr.P.C.
Ratio Decidendi: The court emphasized the need for evidence and the sparing exercise of power under Section 319 of Cr.P.C., highlighting the guidelines to be followed by the court while exercising such power. It concluded that the trial Court's exercise of power in the present case was unfounded and set aside the impugned order.
Final Decision: The petition was allowed, and the impugned order in respect of the petitioner was set aside.
ORDER
Sanjay Dwivedi, J. - Shri K.C. Ghildiyal, learned senior counsel appearing for the petitioner at the very inception has submitted that he is not pursuing this petition in respect of petitioner No.2, namely, Tejbhan Singh @ Teja Patel and as such, he seeks withdrawal of this petition in his respect.
2. Accordingly, this petition is dismissed as withdrawn in respect of petitioner No.2 Tejbhan Singh @ Teja Patel.
3. This petition is filed under Section 482 of the Code of Criminal Procedure asking for quashing of order dated 26.11.2013 passed by trial Court whereby the Court exercising the power provided under Section 319/193 of Cr.P.C. decided the application directing the present petitioner i.e. Yash Vardhan Singh to be included in the array of accused persons and also directed that the arrest warrant be issued for securing his presence before the Court.
4. The said order is being assailed by the present petitioner mainly on the ground that from the impugned order itself, it reveals that the trial Court has relied upon the statements of PW-1, PW-4, PW-6 and PW-7, namely, Ramrati, Raj Kumar Shukla, Ganesh Prasad Shukla and Kamlesh Prasad Shukla respectively, in which, they have taken the name of present petitioner and directed that as per their statement, the present petitioner should be made accused and as such, directed that he may be arrested and produced before the Court so as to conduct a trial against him in relation to the offence registered vide Crime No.373/2003 under Sections 307/376 (2A)/436 of the Indian Penal Code.
5. Shri Ghildiyal has submitted that though the trial Court has taken shelter of the statement of those witnesses, but from perusal of their statement, it is clear that they have not taken the name of present petitioner i.e. Yash Vardhan Singh and as such, exercising power provided under Section 319 of Cr.P.C. by the trial Court is absolutely illegal and the order making present petitioner an accused in the alleged crime deserves to be set aside.
6. Shri Ghildiyal has read over the statement of those witnesses, copy of which has been filed by the petitioner along with the petition and pointed out that the order passed by the trial Court and observation made therein is absolutely perverse because the name of present petitioner has not been taken by any of the witnesses, although in the FIR, the name of present petitioner was there. He has submitted that the CID investigated the matter and found that the present petitioner was not present on spot at the time of alleged crime and his presence was found somewhere else, therefore, as per the provision of Section 169 of Cr.P.C. when the charge-sheet was filed, the present petitioner was not made accused. He has further submitted that under such circumstances, the impugned order exercising power provided under Section 319 of Cr.P.C. by the trial Court is absolutely unfounded and is liable to be set aside. In support of his submission, he has placed reliance upon a judgment reported in (2014) 3 SCC 92 (Hardeep Singh Vs. State of Punjab & Others and other connected appeals), in which the Supreme Court has observed as under:-
"55.Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove."
7. Per contra, Shri S.K. Kashyap, learned counsel appearing for the State has submitted that the name of present petitioner has not been included in the array of accused persons at the time of filing of chargesheet that too on the basis of investigation conducted by CID, in which, it is found that the presence of present petitioner was not there at the time of crime and his name has wrongly been added in the FIR along with other accused persons, therefore, the State has filed the chargesheet not including the name of present petitioner. He has further submitted that at this stage, he has nothing to say about the impugned
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