[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.368 OF 2004 WRIT PETITION NO.368 OF 2004 WRIT PETITION NO.368 OF 2004 SHRI FATESINH M. CHAUHAN ] ADULT, OCCU. BUSINESS ] RESIDING AT HAVELI, SWAMI ] NARAYAN MARG, SILVASSA, ] UNION TERRITORY OF DADRA AND ] NAGAR HAVELI ] ..PETITIONER. VERSUS 1. THE ADMINISTRATOR OF ] DADRA AND NAGAR HAVELI, ] SILVASSA ] 2. THE COLLECTOR OF DADRA AND ] NAGAR HAVELI, SILVASSA ] 3. ASSISTANT INSPECTOR GENERAL ] OF POLICE, SILVASSA ] 4. POLICE INSPECTOR, SILVASA ] POLICE STATION, DADRA AND ] NAGAR HAVALI. ] 5. THE UNION OF INDIA THROUGH ] HOME SECRETARY, HOME ] DEPARTMENT, NEW DELHI. ] 6. MOHAN S. DELKAR, ] R/O. OPP.VINOBA BHAVE CIVIL ] HOSPITAL, SILVASSA -39230, ] DADRA & NAGAR HAVELI. ] 7. RATHOD J.C. ] EX CHIEF OF POLICE ] SUNDARVAN, SILVASSA 396230, ] DADRA & NAGAR HAVELI. ]... RESPONDENTS. MR. SHIRISH GUPTE SR. COUNSEL WITH MR. BALKRISHNA D. JOSHI, ADVOCATE FOR THE PETITIONER. SHRI RAJA THAKARE AND A.M. CHIMALKAR, ADVOCATE FOR RESPONDENT NOS. 1 TO 5. SHRI A.P.MUNDARGI, SR. ADVOCAE WITH MR. S.V.MARWADI ADVOCATE FOR THE RESPONDENT NO.6. SHRI M.S.MOHITE ADVOCATE FOR RSPONDENT NO.7. SMT. S.D.SHINDE APP FOR THE STATE. [2] CORAM CORAM CORAM : : : SRI R.M.S.KHANDEPARKAR AND SRI R.M.S.KHANDEPARKAR AND SRI R.M.S.KHANDEPARKAR AND SRI SRI SRI A.A. A.A. A.A. SAYED, JJ. SAYED, JJ. SAYED, JJ. DATE DATE DATE : JANUARY 24, 2008. : JANUARY 24, 2008. : JANUARY 24, 2008. ORAL JUDGMENT [PER SRI R.M.S.KHANDEPARKAR,J.] 1. Heard. 2. The petitioner, by the present petition is seeking for writ of mandamus and for a direction to the respondents to take appropriate action against the respondent No. 6 and 7 in relation to the offence registered under FIR No. 182 of 1992, lodged at Silvassa Police Station under Section 147, 148, 149, 451, 427, 323 and 325 relating to the offence alleged to have ben committed in the hotel by name ’Vanraj’ on 21st September, 1992 at 0.30 hours. Main grievance of the petitioner is that inspite of the fact that the names of the respondent No. 6 and 7 appear in various statements recorded in the course of investigation alongwith the disclosure of their overt acts which would disclose their participation in the said offence, they have not been arrayed as the accused in the charge-sheet No. 87/2003 filed in the Court of Judicial Magistrate, First Class, Silvassa. [3] 3. The learned Senior Counsel appearing for the petitioner taking us through the statements of Ramesh Ranchodbhai Patel, Uttambhai Vazirbhai Patel, Ashokbhai Narsinh Solanki, Nartwarsinh Laxmansinh Chauhan, Hirabhai Litibhai Patel, the petitioner and that of Sagarbhai Vithalbhai Vadekar, submitted that the statements give detail account of the overt acts on the part of the respondent Nos. 6 and 7 which sufficiently reveal their participation in the offence committed by the persons which are named as the accused persons in the said charge-sheet; however, the police have conveniently excluded the said respondents solely because the respondent No. 6 happens to be the Member of the Parliament having sufficient influence in the locality and the respondent No. 7 being the police officer. He further submitted that an application was filed under Section 319 of the Code of Criminal Procedure before the Sessions Court, pursuant to the case having been committed to the Sessions Court by the Judicial Magistrate, First Class and registered as Sessions Case No. 19/2003 in relation to the said charge-sheet, requesting that some more persons be joined as the accused person including the respondent No. 6 and 7 herein as the materials collected by the police authorities in the course of investigation reveal their participation in the offence in question. The learned Sessions Judge has simply filed the application without passing any order thereon. In the [4] circumstances the petitioner is left with no alternative than to seek intervention of this Court in writ jurisdiction for necessary redress in the matter. Drawing our attention to the affidavit filed on behalf of the respondent Nos. 1 to 5, the learned Counsel has submitted that the same clearly reveal that there is absolutely no justification for the police authorities to exclude the respondent No. 6 and 7 from being prosecuted in the said criminal case. 4. The learned Counsel appearing for the respondent Nos. 1 to 5 submitted that it is in the discretion of the police authorities to decide on the basis of the analysis of the materials collected by them in the course of investigation as to who should be prosecuted for the offence. The police authorities in their wisdom have chosen to exclude the respondent Nos. 6 and 7. It cannot be presumed that there is any arbitrariness on the part of the police authorities to exclude them. On the contrary the inference to be drawn should be that the police authorities have applied their mind and have considered it appropriate to prosecute only those persons against whom there is sufficient evidence to establish their guilt in the matter. 5. The learned Senior Counsel appearing for respondent No. 6 while placing reliance in the [5] decision of the Apex Court in KISHORI SINGH AND ORS. KISHORI SINGH AND ORS. KISHORI SINGH AND ORS. VS. VS. VS. THE STATE OF BIHAR AND ANOTHER, THE STATE OF BIHAR AND ANOTHER, THE STATE OF BIHAR AND ANOTHER, reported in AIR AIR AIR 2000 2000 2000 SC SC SC 3725, 3725, 3725, in case of MOHD. SHAFI VS. MOHD. RAFIQ MOHD. SHAFI VS. MOHD. RAFIQ MOHD. SHAFI VS. MOHD. RAFIQ reported in 2007 ALL MR (Cri) 2976 (S.C.) and KISHUN 2007 ALL MR (Cri) 2976 (S.C.) and KISHUN 2007 ALL MR (Cri) 2976 (S.C.) and KISHUN SINGH SINGH SINGH AND ORS. VS. STATE OF BIHAR AND ORS. VS. STATE OF BIHAR AND ORS. VS. STATE OF BIHAR reported in 1993 1993 1993 SCC SCC SCC (Cri) 470 (Cri) 470 (Cri) 470, submitted that the grievance if any regarding exclusion of any person from being prosecuted in criminal case can be entertained by the Court only in terms of the provisions of law comprised under Section 319 of the Code of Criminal Procedure and it could be only at the stage of recording of evidence subsequent to some material being placed before the concerned Court regarding involvement of such person in the alleged offence and it is too premature for the petitioner to seek any order or direction for arraying the respondent No. 6 as the accused persons in the said case. He further submitted that the records apparently disclose that there is political rivalry between the petitioner and his followers on one hand and the respondents and their followers on the other, as they belong to different political groups and it is only out of political vendetta that the petitioner has filed the present petition. He further submitted that the claim regarding involvement of any other person as the accused in committing the alleged offence is totally devoid of substance as no material in that regard has been placed before the Sessions Court. [6] Referring to the application which was stated to have been filed by the petitioner under Section 319 of the Code of Criminal Procedure before the Sessions Court, the learned Counsel submitted that mere filing of the application would not justify joining of any other person as the accused in a criminal case and it would be necessary to place on record sufficient material which could justify inclusion of such additional person as an accused in the criminal case. Since no such material has been placed before the Sessions Court, no fault can be found with the order of the learned Sessions Judge for merely filing the application. 6. The learned Counsel appearing for the respondent No. 7 submitted that the materials on record nowhere disclose any cogent evidence as such which could reveal the involvement of the respondent No. 7 in the matter so as to warrant exercise of writ jurisdiction to direct inclusion of the respondent No. 7 as one of the accused in the said criminal case. 7. It cannot be disputed that the statements of various persons including the petitioner stated to have been recorded during the course of investigation make some reference to the respondent No. 6 and 7 and/or their acts during the time of occurrence of the offence. To what extent those acts are relevant for arraying the respondent No. 6 and 7 as the accused [7] persons, undoubtedly primarily to be decided by the investigating agency while filing the charge- sheet. At the same time, considering the provisions of law comprised under Section 319 of the Code of Criminal Procedure, the Court’s power to add other persons as the accused in a criminal case whenever his or their, as the case may be, involvement is revealed in the alleged offence, cannot be disputed. Rather the decision of the Apex Court in KISHORI SINGH’s KISHORI SINGH’s KISHORI SINGH’s case as well as MOHD. SHAFI’s case (supra) MOHD. SHAFI’s case (supra) MOHD. SHAFI’s case (supra) clearly reveals that in exercise of power under Section 319 of the Code of Criminal Procedure, the Court in sufficiently empowered to summon any person whose involvement in an offence is prima facie revealed from the record of the case placed before the Court even in the course of trial. In other words, even though involvement of a third person is revealed from the statements recorded under Section 161 of the Code of Criminal Procedure, that by itself may not be sufficient unless the same fact is brought to the notice of the Sessions Court by following proper procedure in that regard known to law. It is more so in a case where inspite of some reference to certain person in the statements recorded under Section 161 of the Code, the police does not array that person as one of the accused though the complainant has a different opinion as regards the involvement of such person in the alleged offence. Undoubtedly, the complainant need not agree in that regard with the [8] opinion expressed by the police for exclusion of such person from being arrayed as the accused. However, in that case the complainant can avail the opportunity of disclosing the necessary facts to the court by following necessary procedure which is required to be complied with by him, bearing in mind the mandate of Section 319 of the Code of Criminal Procedure. 8. It is also necessary to clarify at this stage that when a party approaches the Court by way of writ petition, complaining about illegal and improper exclusion of some person from a criminal case by the police authorities while filing the charge-sheet inspite of sufficient materials being disclosed from the investigation against such persons involvement in the offence, it would be necessary for the police authorities to explain as to why such persons have been excluded from being arrayed as accused in the matter. In that regard the petitioners are justified in making a grievance that the affidavit in reply filed on behalf of the respondent No. 1 to 5 does not disclose any justification for exclusion of the respondent No. 6 & 7 from being prosecuted in the case under reference eventhough some of the statements recorded under section 161 of Cr.P.C. do make reference to some of the acts on the part of the said respondents in relation to the alleged offence. Nevertheless, mere [9] failure on the part of the police authorities in that regard by itself would not be a justification nor would create any right in favour of the complainant for issuance of direction by way of writ of mandamus to array such persons as the accused in such criminal case, more particularly, in view of the efficacious remedy in that regard being available to the complainant under Section 319 of the Code of Criminal Procedure. 9. The decision of the Apex Court in KISHORI KISHORI KISHORI SINGH’S SINGH’S SINGH’S Case, however, is of no help to the respondent NO.6 in the case in hand. The said decision is based on facts of the peculiar nature therein. 10. As rightly submitted by the learned Senior Counsel for respondent No. 6, we do not find any fault with the Session Court’s Order in merely filing the application which was filed under Section 319 of the Code of Criminal Procedure by the petitioner in view of the fact that it was filed without placing on record any material as regards the involvement of the respondent No. 6 and 7 which could justify arraying them as the accused persons in the criminal case under reference, by following the procedure known to law. The petitioner’s right is not extinguished nor is he barred and he has the alternative efficacious remedy under Section 319 of the Code of Criminal Procedure, as [10] is laid down by the Apex Court in that regard in KISHORI KISHORI KISHORI SINGH’s case (supra). SINGH’s case (supra). SINGH’s case (supra). 11. It is also pertinent to note, as rightly submitted by the learned Senior Counsel for the respondent Nos. 6 that the names of the Respondent Nos. 6 and 7 do not appear in the FIR which was filed on 21st September, 1992. The statements to which our attention is drawn were recorded in February, 2003. Undoubtedly the statements were recorded pursuant to the directions of this Court for further appropriate investigation in the matter. In that regard, though the statements cannot be totally discarded, at the same time, it should not be forgotten that the statements were recorded nearly 10 years after the incident. 12. Be it as it may, it is not necessary for us to make any further comments in this matter. As to whether the respondent No. 6 or 7 should be arrayed as the accused or not is yet to be decided by the Competent Court in an appropriate proceedings and it will be too premature for us to make any comment in that regard. 13. For the reasons mentioned above, therefore, we do not find any justification for issuance of any mandamus as prayed for nor for direction to the respondents to array the respondent No. 6 or 7 as [11] accused in the said criminal case at this stage. Albeit, the alternative remedy available to the petitioner stands protected. 14. The petition therefore fails and is hereby dismissed. Rule is discharged with no orders as to costs. [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.] [12] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 368 OF 200 WRIT PETITION NO. 368 OF 200 WRIT PETITION NO. 368 OF 2004 Date of Decision : January 24, 2008. For Approval and Signature : The Honourable Mr. Justice R.M.S.Khandeparkar: The Honourable Mr. Justice A.A.Sayed : 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. To be referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges ? 6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office? *****