3- t.r.- - Serial No. of Order 1.25 8 . 2 0 03 ORDER SHEET`, CrimiB.al Revision Kashi Kant dha State of Sikkim JB .„ ..... No.16 ofl/y 2003 Petitioner/Appe]Iant Respondent Versus Order with Signature _4 Heard Mr. S; K=a HomS Chouda`ury. 1earne ~.\ Senior Counsel assisted by Miss Sapna Rai, learned Councsel for the accu.sea./pe.t.itioner e and Mr. I. a. Pradhan, learned Adc]itional Public Prosecutor assisted by Mr. Kar[[a i,- Thinlay. learned Assistant Gcrvt.Advocate for the Stale - respondent. C Upon hearing Mr. ChoudhQry, learned Senior Counsel at some length, I am of the C view thac the related case diary is necessa and esseEtial at this stage. an9 that being the position,learned Additional Public Prosecutor shall produce the case diary on 1&.9.2003. The`matter be list.ed Qn the said date fcir further orders. c_ ul • OfliceNoteasto taaf:Lo:n(i8:3g! y I( 5 .b 3 EiEE -- c-`mr,\. Serial No. of Order 2.1 at/ 3.11 .9.200 .9.200 Orde.r, with Signature \ As pra¥ed for by the learned Counsel for the parties. list it t.omorrov7. -i.e. on 11.9.2003. NN.I±, Judge 1:a . 9 . 2 0 03 a.,.. Heard Mr. S. K. Home Choudhury, learne . Senior Ccunsel assisted by Miss Sapna Rai. 1` le`arned Cou;sel for the a€cused/pet-iti.one.r. Also heard Mr. N. a. Ithatiwada. learned Public Prosecutor assisted by Mr. r. 8. Pradhan. learned Additional mblic Proseout fc]r the state -Crespondent.` Mr. N. a. Kh5tiwada. learned Public Prosecutor sought for some time 5o as to enable him t.a pr'odu¢e the charge sheet-. The offic6°Note as to • action (if any) taken on Order request i§ reasonable. In the meantill`e, further pr`oceeding of Crirdnal Case rvo.15 o 2002 +Bending in the Court of the learhe-a Sessions fudge. Special Divisidn-II, Sikki shall remain suspended. List it. on 25.9.2003 for necessary orders . Judge 11. 9 . 2003 -C. '.' I S. ` Serial No. of Order 4.25 at./ 5,6. 9.2003 1.ZOO '+.--. I.`. Orderwith-Signat`utre a Heard Mr. a. K. Hone Chaidhury. Ieame Senior Co`insel assisted by Miss Sapna Rai`. learned Cainsel for the accused/petitioner and nr. N. a. Thatiwada. learned Public Prosecutor assisted by Mr. I. a. Pradhan. learned Addl.Public Prosecutor for the State reapondent. As prayed for by t.he learned Counsel for the parties. list it on 6.11.20ce for necessary orders. (=N® S;:gil - ngh) 'Ju 25,9.2003 Heard Miss Sapna Rai. learned Counsel for the accused/peti.tioner and nr. Karma Thinlay , leaned ,,Assistant Gcnrt..Advcx=ate for the State-respondent. As prayed for by Miss Sapna Rai. .learned Cainsel for the accused/petition.er. the mtter _be listed on 1.12.2003 for necessary orders. N. a\.G- -t N.cafag:ingh i 6.12.2003 Office Note as to taackt::noLif6:g!r \ Serial No. of Order 6.1, at/ 7,8, 2.200 2.2003 Order with Si'gnature i A pr.ayer has been rna-de by fiisa .Sapn Rai. learned Counsel for the accused/petiti for adjournment of `this case at least for a week. This is not. objected by .Shri NT. a.. KhBtiwadac. learned. Publi-a Prosecutor vJho is assi-sted by Shri I. a. Erg.dhan, learned Additional Public Prose't±Lto5 for t.he State •,... respondent . List this. case on 8.12.2003 for necessary orders. . ."i,ag 1.12 . 2003 Office Note.as to " action (if any) taken on `Order Heard Mr. a. K. Home Choudhnry. learn Senior Counsel assiFted by Miss Sapna Ral. learned Counsel. for the accused/p:titioner and Mr. N. a. Kha€iwada. learned Public .. Prosecutor assisted by Mr. d. a. Pradhan, learned Addl. Public Prosecutor for the State-regpondeht. As prayed for by the learned Counsel for the parties. list.1t.on.12.03.2003 for necessary order. N. (N,J 8. Slngh ) e 2003 SerialNo.Of Da-te ,of Order with signature .HeardShriS.K.HorreChoudhury. Office Note as to OrderI Order £±tet:noiffoar¥t)r t Ii•12.(\\]II'I .2004 p-EL#qugrCJ'i learned Senior Counsel assisted by Miss.S Rai and Shri S. P. Wangdi. learned Senior Advocate assist.ed by Shri .. a. Pradhan. learned niblic Proseq]tor for the State/ respondent. rudgment?reserved. ``vA `r` ^ r/+ ( N. S singh ) Juge Judgment pronainced vide. separate sheets, The revision is devoid of merit and accrordingly. it is dismissed. but no order as to costs. ".N'sl Girfu- Singh ) Judge It citf rol 7/-fa,- sl ) I - ,, Em=r IN THE HIGH COURT OF SIKKIM CriminatRevisionNo.16Of2003 `Kashi Kant Uha S/O Sri Kedar Jha, R/O Tadong, Gangtok. ..... Accused/petitioner. Vers„s Stateofsikkim.....j3esponczen€. Corctm:TheHon'bleShri3ustieeN.SurfumanlSi.ngh,Judge. Presen¢ : Mr. S. K. Home Choudhury, Senior Advocate assisted by Miss Sapna Rai, learned Counsel for the accused/petitioner. Mr.S.P.Wangdi,SeniorAdvocateassistedby Mr. J. 8. Pradhan, Public Prosecutor for the State/respondent. men± : 15th IUD a ME NT EEERE The order dated 06.08.2003, passed by the learned Sessions Judge,SpecialDivision-II.Sikkim,inCriminalCaseNo.15of2002 isthesubjectmatterunderchallengeinthisrevisionpetition. 2. The accused/petitioner shri Kashi Kant Jha has been facing trial under Sections 467/468/474/log of the Indian Penal Code before the Court below. In the course of the trial, 9 prosecution witnesses had already been examined, and in the meantime, the d\df, I dyg®. C) accused/petitioner filed an application dated 18.6.2003 under section 319 Cr.P.C. for taking cognizance of the offence against 3 persons - PW Nos.2, 5 and 6, namely, Madhav Sharma, Navin Dhakal and Bishnu Maya Sharma by contending inter alia, that the PW No.5, Navin Dhakal had abetted the alleged offence with the accused/petitioner thus attracting a punishment under sections 467/468/474 read with 109 IPC and whereas PW Nos. 2 and 6, namely, Madhav Sharma and Bishnu Ma.ya Sharma were having the possession of the forged documents Exhibit P-16 and Exhibit P-18 thus attracting sections 467, 468, 471, 474, 109 and 34 IPC, and that being the position, the present accused/petitioner sought for taking an appropriate action against the said 3 persons/prosecution witnesses mentioned above as per section 319 of the Code of Criminal Procedure. The said petition was rejected by the learned court below by holding that no offence has been committed by any of the prosecution witnesses. Being aggrieved by the impugned order dated 06.08.2003, the present accused/ petitioner filed this revision petition. 3. Supporting the case of the accused/petitioner, Mr. S. K. Home Choudhury, learned Senior Counsel contended that there is sufficient evidence on record for establishing the abetment of the alleged offence by the PW No.5, Navin Dhakal and apart from that, the names of Bishnu Maya Sharma, PW No.6 appears in the related FIR dated 22.9.2001, which speaks that prima facie case is made out against Smt. Bishnu Maya Sharma for committing the offence under section 468/ 120-8 IPC, but she was dropped from the cas`e by the investigating machinery without any justification. The learned Senior Counsel also argued that sufficient materials +\dy ` D 3 onrecordareavailableforestablishingthefactthatPW2,Madhav Sharma and PW 6, Bishnu Maya Sharma were having the possessionofallegedforgeddocumentExhibitsP-16andPh17,and that being the position, the learned Court below ought to have proceeded against those persons - PWs 2, 5 and 6 for the offence committed by them, and they should be impleaded as co-accused inthecase.ThelearnedSeniorCounselreliedupon2decisionsof t:e =p.ex Court rendered ln uloginder Singh versus State Of mnjab reported in (1979) 1 SCC 345 and Raglouhans Dub:y versus State Of Bihar reported in AIR 1967 S.C. 1167 and contended that, the expression "angr person not being the accused" in Section 319 Cr.P.a. does not exctwde person dropped under Section 169 Cr.P.C. and that once cognizance h=_beentahendytheMagistrate,.hetakescogvizanceofan of=nceandncttheoffenders.,oncehetahescogutzanceofan offienceitishlsdrtytofindoutwhotheoquendersrealtgare and once he coTnes to the conctuston that apart from the persons seat up bg the pol;lee some other persons are invotwed, it is his arty to proceed against those persons and thatthesummoringOftheardditfonalaccusedispariIfthe proceeding initiated ky his talcing cogrtfaance Of an offence. This important legal aspect has been ignored and overlooked by the learned Court below while passing the impugned order Mr. Home Choudhury argued. 4. It is also contended by the learned Senior Counsel that the impugned order passed by the Court below is not tenable in the eye of law, inasmuch as, the leaned Court below ought to have `wiry¥ry/ 4 allowedthepetitionoftheaccused/petitionerundersection319of the Code of Criminal Procedure. 5. At the hearing, Mr. S. P. Wangdi, learned Senior Advocate appearing for the State, contended that there is no infirmity or illegalifyintheimpugnedorder,and,assuch,nointerferenceofit is called from the ends of this Court. 6. Now this Court is to see and examine as to whether the impugnedordersuffersfromillegality,improprietyorincorrectness andwhetherinterferenceofitiscalledforbythisCourtinthelight oftheexistingfactsandcircumstancesofthecaseornot? 7. I have perused the impugned order and also available materials on record. I have also considered the submissions advancedbythelearnedCounselappearingfortheparties. 8. `From the submissions advanced by Shri S. K. Home Choudhury, learned Senior Counsel, to the effect that PW No.5, Shri Navin Dhakal had abetted alleged offence attracting punishlnent under sections 467, 468, 474 read with 109 IPC and theimpleadmentofthesaidPWNo.5asco-accusedinthecase,it appears to me that whether it is the case of the accused/petitioner Shri Kashi Kant Jha that he had committed the offence and likewise, PW No.2 and PW No.6 were having the possession of the allegedf#~9¥cumentsExhibitsp-16andp-18withthehelpof the accused/petitioner (See - Petition dated 18-6-2003, under section 319 Cr.P.C.) or, whether it is a case of total denial I The related submis,sions were made/advanced by Shri S. K. Home Choudhury, leirned Senior Counsel on the basis of the available a 5 materials on record, including the statements/depositions of the PW Nos.2, 5 and 6 and the petition under section 319 of the Code ofCrilninalProcedure;butthedefencetookthepleaoftotaldenial in the course of the trial of the case before the learned Court below. 9. It is well settled that the Court below has wide power to proceedagainstanyother`personorpersonsappearingtobeguilty of an offence in terms of the related provisions of Section 319 Cr.P.C. and this is also an accepted principle of law that any person not being the accused within the purview of Section 319 Cr.P.C., does not exclude the person dropped under section 169 Cr.P.C. and apart from that, it is also the duty of the Magistrate or the Court to find out who the offenders really are and the Magistrate or the Court has power and discretion to summon the additionalaccusedwhichisapartoftheproceedingbyhistaking cognizance of an offence but the court is to see and examine as to whether a prima facie case is made out before initiating such action as required under the related provisions of section 319 of the Code of Criminal Procedure. ZO. At this stage, it may be mentioned that the learned Court below was of the view that no offence has been committed by any of the prosecution witnesses, namely, PW Nos. 2, 5 and 6. Supporting this finding, the learned Court below opined thus: - ``1 have gone through the evidence of P.Ws.2, 5 and 6 and especially the portion of their evidence whicli has been extracted by the Ld.Counsel for tbe petitioner. I have given my thoughtful consideration to their evidence and I rind that no case is made out against any of the three `.\Of/ I)eepak Sharma and when be friend siiggested that tie a P.Ws. As regards P.W.2 as per the extracted portion of liiscross-examinationisasfollow§:- "1sayExbt.P16ismyfakecel.tiflcaLtebecausetbe colour of the original certificate is blue whereas ihoereo°vneer,::::!£aefEert:lag:e:Sfc±onnsipdfenr:b|:a:::re. eel.tirlcateofpassingdidnotcomefromtbeboard. Icametoknowabouttbefakenatul.eofExbtP.16 afteraboutsix/sevenmonthsfromthedateofmy J#;:ngoigo:belts:srvti::;:hj:;ale:i|:nn=T::pToictet:ntE:t policewhen1firstcametonowthattheExbt.P.16 is the fake certiricate." As per the cross-examination Exbt P.16 Is his fake certificate because the colour of the original certificate isI]Iuewhereastheonesuppliedtobimbytbeaccused wa[s in pink colour. Further, lie has stated that even afteralapseofconsiderabletimecertificateofpassing didnotcomefromtlieBoardandthathecametoknow about the fake naturer of Exbt P.16 after 6/7 months fromthedateofhisjoiliingtbeservice.Thusiti8seen thathedidnotusethefakecertiflcateprovidedbythe accused for getting into service. Moreover there is not even a whisper that tfie witness in any way helped the aNC==S.e=L::.I_:_Org1.n.g any certlHicate. - s±=n==:yr-i.=`5 RTavinDhakal'sevidenceisthathefailedingraduationin tbe year 1998 and started loo¥ng for job but could not get any job due to very low percenta[ge of marks in his Senior Secondary Examination. He met his friend narrated liis problem his accilsed can improve Secondary examination result by enhancing his marks.' __-I---- He accordingly went and met the accused in his PCO Bootb alid he was told by tfie accused that be can enhancehismarksintlleCertiflcateofSeniorSecondary ELaminatiofl for which purpose accused demanded a sum of Rs.5000/-. Tbe witness expressed his inability to pay Rs.5000/- and offered to pay him Rs.2000/-. The ::;}e::sd=:re::teerma:rkkesde=ec::dfuarnn:Shth:±Sw:tan:se: ``<o?,t/ \ 4 ZZ. _ii= ____ `'`-Luv\/' 1L IS seenthatthesamearebasedonsufflcientmaterialsand,tothe satisfactionofthelearnedCourtbelow.Itisfurtherrevealthatthe opinionformeddythelearnedCourtbelowlsbasedonmaterials. Inmyconsideredview,thelearnedCourtbelowhaddeaJtwiththe 7 furnishedthefnformationrequiredbytheaccusedaqd also photocopy of AII India Senior School col.tiflcate Examination, 1996 Admit Card. The Ld.P.P. submitted that the accused being a teacher tlie witness in tlie bonafide belief thought that tbe accused may be in a position to enbance his marks by re-examination or otberJiseandthattbereisnoevidenceatallthatany forgeryhadbeencommittedbytliewitnesses.Similaris the case with P.W.6 Bishnulnaya Sliarma. I, therefore, flndtfiatnooffencehasbeencolnmittedbyanyofthe prosecution witnesses and consequenfty the petition filedbytheaccusedisherebyrejected." From the above findlngs of the learned Court below, it ls ha+ +I_ matter pros and cons and hasbeencommittedbyanyoftheprosecutionwitnesses. Z2. Apart from the above discussions and observations perfajningtothescope,applicationandthepoweroftheCourt/or the Magistrate as Contemplated under section 319 Cr. P.C., it is to be borne in the judicial mind that an order under this section for proc:e-ding against any person(s) other than- the named accused, who appear{S) to ha.ve Committed offence for which he could be I tried together with the named accused, entirely depends on tbe came to the conclusion that no offence available facts,; Cireumstances arld evidence on record and such order ougrit to F- Passed at the earliest and at the proper stage I. andwithinar?`a®nablePeriodoftime.IntheinstantcasetheF`|R was lodged inJthe year 2001 i.e. on 22nd September 200|, and the a 0 9 case to justify the interference with the impugned order passed by the learned Court below. ]5. In the result, the revision petition is devoid of merit and accordingly, it is dismissed, but no order as to costs. It is made clear that the learned Court below is to dispose of the case expeditiously in accordance with law. Registry is directed to send a copy of this Judgment to the learned Court below. N,A\`crfu !Iill 'IV. - -nd Singh ) Jhadge 15.08.2004