1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2850 OF 2009 Gautam Nemani ..Applicant versus The State of Maharashtra ..Respondents Mr. Milan Desai i/b. Mr. Prashant Parsurampuria for Applicant. Mr. S. N. Gawade – APP for State. CORAM : S. A. BOBDE, J. DATED : 10TH SEPTEMBER, 2009. ORAL ORDER : 1. The applicant who has been added as an accused under Section 319 of the Criminal Procedure Code has challenged his addition as an accused and the summons issued to him. 2. It is alleged that the applicant is a partner in a partnership by name of M/s. K. M. Nemani. The complainant filed a prosecution against the other partner under Sections 406, 420, 417, 120B, 504 and 506 of the Indian Penal Code. Some documents were filed by the prosecution before the trial court. Those documents included the Dissolution Deed from which it appeared to the court that the present applicant was also a partner in the 2 firm when the alleged offence was committed. On the basis of the said Dissolution Deed, the trial court has added the applicant as an accused under Section 319 of the Cr.P.C. Hence, this Application under Section 482. 3. The learned counsel for the applicant submitted that there was no evidence within the meaning of Section 319 of the Cr.P.C. led before the Court on be basis of which the court could have added the present applicant as an accused under Section 319 of the Cr.P.C. It was pointed out by the learned counsel for the applicant that admittedly no evidence has been led at the trial at all . The prosecution has only filed certain documents and a charge sheet. The question is therefore whether the court could have added the applicant as an accused in the circumstances of the case. Section 319 of the Cr.P.C. reads as follows: “319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. 3 (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” The aforesaid provision contemplates that the trial court may proceed against a person for an offence if it appears to it during the course of enquiry and the trial that such person has committed offence from the evidence led before it. Therefore, the question that needs to be decided in the present case is whether the mere document filed before the commencement of recording of evidence can be said to be evidence on the basis of which the learned trial court could have added the applicant as an accused under Section 319 of the Cr.P.C. The question is no more res integra in view of the decision of Lok Ram v. Nihal Singh & Anr. reported in AIR 2006 SC 1892, wherein the 4 Supreme Court observed as follows:- “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, because such materials contained in the charge-sheet or the case diary do not constitute evidence.” In Rajindra Singh v. State of U.P. & Anr. [AIR 2007 SC 2786], the Supreme Court referred to its earlier decisions in Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors. [ (1983)SCC 1 ] and Kishun Singh v. State of Bihar [ (1993)2 SCC 16 ] and in the case of Kishun Singh v. State of Bihar, Their Lordships have observed as follows:- “On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section 5 contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code.....” It is, therefore, clear that if the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed an offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been charge sheeted by the investigating agency or may have been discharged at an earlier stage.” This view has also been followed by a learned Single Judge of this Court in Nilkanth s/o. Krishna Thakre vs. State of Maharashtra [ 2005 ALL MR (Cri) 737 ]. 4. The learned APP however relied on a decision of the Supreme Court 6 in Rakesh v. State of Haryana [ AIR 2001 SC 2521 ] where the Supreme Court has observed as follows :- “ Hence, it is difficult to accept the contention of the learned Counsel for the appellants that the term ‘evidence’ as used in Section 319, Criminal Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word “evidence” occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the Investigating Officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime.” 7 On the basis of these observations, it was contended by the learned APP that is is permissible for the court to merely rely on a document filed by the prosecution and take action under Section 319 even if no evidence has been led before the trial court. A reading of the decision in Rakesh’s case (supra), however shows that the observations are made in a context entirely different from the present case. In that case it was the contention of the newly added accused that there was no evidence before the trial court since he had not been permitted to cross-examine the witness who had deposed against him. The aforesaid observations are made by the Supreme Court while rejecting these contentions do not apply to the present situation. 5. Having regard to the circumstances of the case, the impugned order adding the applicant as an accused is hereby quashed and set aside. It is however made clear that the power under Section 319 shall be available to the court in the course of the trial. 6. Application is disposed of. (S. A. BOBDE, J.)