bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRI. CRI. CRI. APPLICATION NO. 1455 OF 2008 APPLICATION NO. 1455 OF 2008 APPLICATION NO. 1455 OF 2008 Harinarayan G. Bajaj ... Applicant v/s The State of Maharashtra & ors. ... Respondents Mr.Zol Andhyarujina i/by Mr.V.M.Sharma for the applicant. Mr.P.A.Pol, A.P.P. for the respondent No.1 State. Mr.A.H.Ponda i/by G.B.Kedia for respondent Nos.2 to 4. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 5TH JUNE, 2008 5TH JUNE, 2008 5TH JUNE, 2008 P.C. P.C. P.C.: 1. By this application, the applicant has prayed that the order passed on 22.2.2008 by the 14th Court of the Additional Chief Metropolitan Magistrate, Girgaon in C.C.No.19/S/2003, be quashed. The applicant has further prayed that directions be issued to the Additional Chief Metropolitan Magistrate to frame the charge against the respondent No.5 under the relevant provisions of the Indian Penal Code and to proceed with the complaint in the aforesaid case against all the accused from the stage of Section 246 of the Code of Criminal Procedure. 2 2. The brief facts giving rise to the present application are as follows:- Initially, the applicant who is the complainant, had filed a complaint against only three accused alleging that they had committed offences punishable under Section 406 read with Section 114 of the Indian Penal Code. The Court recorded the evidence of the complainant and his witnesses before the charge was framed. The charge was ultimately framed against three accused under Section 409 of the Indian Penal Code. Thereafter an application was filed under Section 319 of the Criminal Procedure Code by the applicant on 15.12.2007 for adding Creative Garments Ltd. as an accused in the case. The Metropolitan Magistrate issued summons to Creative Garments Ltd. An application was filed on behalf of Creative Garments Ltd. which is respondent No.5 herein, invoking the provisions of Section 319 sub-section (4) of the Cr.P.C. It was submitted that Creative Garments Ltd. was not an accused or party to the proceedings when the evidence of the complainant’s witnesses was recorded before the charge was framed. It was, therefore, prayed that since the evidence had been recorded in its absence as it was not a party at that stage, the evidence in respect of those witnesses be re-heard. The Trial Court by its 3 decision dated 22.2.2008 separated the trial of accused No.4 and directed that the case against accused Nos.1 to 3 to proceed from the stage after framing of the charge. This order was challenged by accused Nos.1 to 3 in this Court. By my order dated 31.3.2008 I have held that the separation of the trial was incorrect and that the co-accused should be tried in the same trial. I have further clarified by my order dated 23.4.2008 that the order dated 22.2.2008 is set aside only to the extent that it directs the separation of the case against accused No.4. 3. The applicant is, therefore, aggrieved by the order of the Metropolitan Magistrate directing that the trial against accused No.4 i.e. respondent No.5 herein should proceed de novo. 4. Mr.Andhyarujina appearing for the applicant submits that there is no need for a de novo enquiry or trial and that the matter should proceed from the stage of framing of the charge. He submits that there are several judgments of both, the Supreme Court and other High Courts which indicate that once a party is arraigned as an accused under Section 319 of the Cr.P.C. a de novo enquiry or trial is not required. He submits that the term "evidence" used in the section does not mean 4 evidence which is tested by cross-examination and, therefore, if there is prima facie material to proceed against the accused who has been added, there is no reason for setting the clock back by ditrecting a de novo trial against accused No.4. He submits that the present case is a warrant triable case based on a private complaint. According to the learned counsel, grave injustice would be caused if the applicant has to undergo the entire process once again before the charge can be framed against accused No.4. He points out that there is sufficient evidence on record which indicates that a charge ought to be framed against accused No.4 as well. 5. The learned counsel relies on the judgment of the Supreme Court in the case of Rakesh v/s State of Rakesh v/s State of Rakesh v/s State of Haryana, Haryana, Haryana, reported in AIR 2001 SC 2521 reported in AIR 2001 SC 2521 reported in AIR 2001 SC 2521 in support of his contention that the term "evidence" used in Section 319 does not mean "evidence" which is tested by cross-examination. He then relies on the judgment of the Allahabad High Court in the case of Ram Gopal & anr. Ram Gopal & anr. Ram Gopal & anr. v/s v/s v/s State of U.P., reported in 1999 Cri.L.J. 1865, State of U.P., reported in 1999 Cri.L.J. 1865, State of U.P., reported in 1999 Cri.L.J. 1865, which takes the same view. The learned counsel also relies on the judgment of the Supreme Court in the case of Ratilal Bhanji v/s State of Maharashtra & ors., Ratilal Bhanji v/s State of Maharashtra & ors., Ratilal Bhanji v/s State of Maharashtra & ors., reported reported reported in AIR 1978 SC 94, in AIR 1978 SC 94, in AIR 1978 SC 94, in support of his contention 5 that the trial in a warrant case starts with the framing of the charge and that the proceedings prior to it are only an enquiry. He submits that since the charge has already been framed against accused Nos.1 to 3, the Court would only be required to frame the charge against accused No.4 on the basis of the evidence already on record to commence the trial. He then relies on the judgment of the Supreme Court in the case of Union of Union of Union of India India India v/s Major General Madan Lal Yadav, reported in AIR v/s Major General Madan Lal Yadav, reported in AIR v/s Major General Madan Lal Yadav, reported in AIR 1996 1996 1996 SC 1340 SC 1340 SC 1340 which considers when a trial commences under the Army Act. 6. On the other hand, Mr.Ponda, the learned counsel appearing for the respondent Nos.2 to 5 submits that Section 319 sub-section (4) is specific and stipulates that, once a person is added as an accused by summoning him, the proceedings in respect of such a person have to be commenced afresh and the witnesses have to be re-heard. The learned advocate submits that the provisions of Section 319 sub-section (4) stipulating a de novo trial is mandatory. He relies on the judgment of the Supreme Court in the case of Shashikant Singh v/s Shashikant Singh v/s Shashikant Singh v/s Tarkeshwar Tarkeshwar Tarkeshwar Singh & anr., reported in 2002 Cri.L.J. Singh & anr., reported in 2002 Cri.L.J. Singh & anr., reported in 2002 Cri.L.J. 2806. 2806. 2806. The learned counsel then submits that the Supreme court has held in the case of Assistant Collector of Assistant Collector of Assistant Collector of Customs, Customs, Customs, Bombay v/s L.R.Melwani & anr., reported in AIR Bombay v/s L.R.Melwani & anr., reported in AIR Bombay v/s L.R.Melwani & anr., reported in AIR 6 1970 1970 1970 SC 962, SC 962, SC 962, that the statutory right given to the accused cannot be defeated merely because it would cause a delay in the proceedings. Similarly, in the case of R.S.Nayak R.S.Nayak R.S.Nayak v/s A.R.Antulay & anr., reported in AIR 1986 v/s A.R.Antulay & anr., reported in AIR 1986 v/s A.R.Antulay & anr., reported in AIR 1986 SC SC SC 2045, 2045, 2045, the Supreme Court has observed that though the procedure in a warrant case on a private complaint is cumbersome, it must be followed until such time as the Code is amended. In fact, the Supreme Court has observed that there is a need for Parliament to simplify the procedure for such cases keeping all aspects in view. 7. Before proceeding to deal with the judgments cited at the bar, it would be necessary to emphasise a few facts in the present case. Accused No.4 had been summoned for being added as an accused on the application made by the complainant. Accused No.4 has been added as an accused in the complaint. The issue in the present case is not whether a person summoned must be permitted to cross-examine the complainant and his witnesses before being added as a party for being arraigned as an accused, but, whether the witnesses of the complainant must be reheard for the benefit of the added accused before the charge is framed against him. 8. The question of giving any opportunity to an accused 7 to hear the evidence prior to summoning him does not arise. There is no need, therefore, for an accused to be given an opportunity to cross-examine the witnesses of the complainant before he is added as an accused under Section 319(1). This has been so stated by the Supreme Court in the case of Rakesh v/s State of Haryana Rakesh v/s State of Haryana Rakesh v/s State of Haryana (supra). The question that the Supreme Court was concerned with in this case was whether while summoning an additional accused there was any need for the Court to permit a person to cross-examine the witnesses examined by the complainant. The Supreme Court has observed that it was not necessary to permit a person who has to face a trial to be given an opportunity to cross-examine the witnesses of the complainant prior to summoning him. The Supreme Court has observed that the right to cross-examine would arise only at the time of trial. It is then observed in this judgment that the section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witnesses who have deposed against him and thereafter deciding whether such a person is to be added as an accused. Thus, this judgment is of no avail to the applicant because in the present case the accused has already been summoned and added as a party to the proceedings. We are, therefore, not concerned with that stage but the stage where once 8 the person has been added as a co-accused, whether he is entitled to hear the evidence afresh before the charge is framed against him. 9. In the case of Ram Gopal v/s State of U.P. (supra) Ram Gopal v/s State of U.P. (supra) Ram Gopal v/s State of U.P. (supra), the Division Bench of the Allahabad High Court has held that the controversy before it was whether for summoning a person under Section 319 of the Cr.P.C. it was necessary that the cross-examination must be concluded by the accused facing trial. It has been held thus: "It is also obvious that the statements already recorded in absence of such persons cannot be relied on in subsequent proceedings and in view of sub-section (4) of Section 319 Cr.P.C. all the witnesses will be required to be examined again. Sub-section (4) in unambiguous terms provides that where the Court proceeds against any person under sub-section (1), then the proceedings in respect of such person shall be commenced afresh and the witnesses are re-heard. The provision has been incorporated to ensure that such persons summoned under Section 319 Cr.P.C. are not prejudiced by the evidence recorded in their absence." 9 Thus, this judgment also does not advance the case of the applicant any further. The judgment recognises the fact that Section 319 (4) is mandatory and the proceedings must start de novo for the benefit of the added accused. The judgment under the Army Act between Union Union Union of India & ors. v/s Major General Madan Lal Yadav of India & ors. v/s Major General Madan Lal Yadav of India & ors. v/s Major General Madan Lal Yadav (supra) is not very relevant for the purposes of the present case. 10. Mr.Andhyarujina laid emphasis on the case of Ratilal Ratilal Ratilal Bhanji v/s State of Maharashtra Bhanji v/s State of Maharashtra Bhanji v/s State of Maharashtra in support of his submission that the trial in a warrant case starts with the framing of the charge and prior to it the proceedings are only an enquiry. He submits that only the trial needs to be commenced de novo and not the inquiry prior to framing of the charge. 11. The submission of the learned counsel cannot be accepted. Section 319 reads thus - "Section Section Section 319:- Power to proceed against other 319:- Power to proceed against other 319:- Power to proceed against other persons persons persons appearing to be guilty of offence.- appearing to be guilty of offence.- appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the 10 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) 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), 11 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 word used in Section 319(4) is "proceedings" and not "trial" or "inquiry" which words have been used in Section 319(1). "Proceedings" would therefore include both "inquiry" and "trial". Section 319(4) mandates that a person who has been added as an accused under Section 319(1) is entitled to re-hear the witnesses. It is not sufficient if the accused is allowed to cross-examine the witnesses who have already been examined. In the case of Shashikant Singh v/s Shashikant Singh v/s Shashikant Singh v/s Tarkeshwar Tarkeshwar Tarkeshwar Singh Singh Singh (supra), the Supreme Court has observed that the provision of a de novo trial is mandatory in the light of the stipulation contained in Section 319(4). The Supreme Court in this case was dealing with a warrant triable case, not based on a private complaint. The Supreme Court has observed thus - "Para Para Para 10.:- 10.:- 10.:- The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the Court from the evidence that any person not being the accused has committed 12 any offence, the Court may proceed against him for the offence which he appears to have committed. At that stage, the Court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319(1) appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person 13 who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court." 12. In view of these observations there can be no dispute now that the Court must commence de novo proceedings against accused No.4. Mere delay which might be caused to the applicant would be of no consequence for defeating the right of the accused as held by the Supreme Court in the case of R.S.Nayak v/s R.S.Nayak v/s R.S.Nayak v/s A.R.Antulay A.R.Antulay A.R.Antulay (supra). 13. The petition is, therefore, rejected.