'$1 ^f^ HIGH COURT OF CHHATTISOARH AT BILA UR Cr. R. No. 168/2004 APPLICANT ACCU8BD No. 3 NON-APPLICANT8 VBRSU8 1. 2. 3. 4. 5. 6. R.N. Chouhan s/o Shivpal Singh, House No. 106, Krishnabag Colony, Indore, M.P. The State of Chhattisgarh, throug^i Bconomic Offences Investigation Bureau, Raipur, C.G. (PROSECUTIONl Ramcharan Singh Thakur s/o Bhaiyaram Thakur, age 52 years^ office at Commissioner, Tribal Development M.P. Bhopal r/o Sarvida, P.8. Korba, Distt. Surguja, C.Q. Ramesh Singh s/o Shri Mankeshwar Singh, age 42 years, r/o Kedarpur Ambikapur, Distt. Surguja, C.G. Kamlesh Sujotiya s/o Dr. R.N. Sujotiya, r/o 212 Saket Nagarlndore, M.P. Urj Kumar s/o R.P. Mishra, r/o House No. A/16, Kasturbanagar, Bhopal, M»P. (REMAINING ACCUSEDl Satya Narayan Qoel s/o Fakir Chand Goel, aged 64 years, r/o 7/1, Durga Nagar, Naulakha, Indore, M,P. (PRQPQSBD ACCUSBD). CRIMINAL REVISION U/S 397/401 OF THB CODB OF CiBBnHAL PROCEDURE. (8B :Hon>ble Mr. T.P.Sfaarma, J.) Present:- Shri A.K. Prasad, Advocate for fhe applicant/petittoaer. Shri Rakesh Jha, Dy. G.A. for the State/noa-applieaat No, 1. Shri Maaoj Mishra, Advocate for the non-appUcaat No. 4, None for fhe non-appUcaats No. 2,3,5 & 6. ORAL- ORDBR (Passedon 22/11/20l0) 1, By fhis crmunal rcvision, petitioner has chaUenged fhe legaUty aad propiiely of fhe order dated 7/2/2004 passed by Special Jiidge, Ambikapur m Special Crixninal Case No. 2/2000 whereby application fitled on behadf of the present petitioner for iaitiating '\?: prcx^edmg agaiast noii-appUcant No. 6 ia a trial for coiamisston of offence has been d^missed. 2, As per original case of tlie prosecution on fhie baste of oirier impugned aad copy of Pirst Information Report, noa-appltoa^t No, 6 who was President of Rcsshtriya Sahkcsri Upbhokta Bhcmdw, Iiidow has suppUed Over Head Taiiks to Assistaat Coaiimissioaer, Tribal Development, Surguja aad lias received tfae cost ofOvar Head Taaks wifhout any quotation sent by RcishtriyaScshkciri Upbhokta Bftandar, Indorc to Assistaat Commissioner Tribal Development, Surguja, As per Firat Information Report, Assistaat Coiiimissioner Tribal Development, Sui^uja was in coimivaace mid ia conspixacy obtamed certificate fix>m SrnaU Industorial Cofporatioa relatmg to non-availability of Over Head Taaks aad entered iato conspiracy wifh Rashtriya Safefcan Upbhokta Bhandar, Iixdorc aaid has committed fhe aforesaid offence, 3, During course of trial, piosecution has examined noa-applicaat No, 6 as a prosecution wit&ess No. 86 who has dep^sed mi detail fliat at the relevant time he was President and one Ramxiaresh Smg^i Choufaan came wifh suppty order ta bia office, he entei^d mto aB agreement then he has supplied Over Head Tanks aiid has re^eived money i.e< cost of Over Head Taiiks, In hte detailed cross- examiiiation, he has speci&cally admitted that he has not S snt aaay quotation or aay document to Assistaat Commissioner Tribal Development, Sui^guja relating to such supply aad has siipplied tlie Over Head Taaks on fhe basis of supply onier placed before him by one Ramnarcsh Siagh Chouhaa. •1:r-: 4, Shri A,K, Pmsad, Advocate for fhe appMcaixt/petittoiier, Shri Rakesh Jha, Dy, G,A, for fhe State/non-applicaiit No, l and Shri Manoj Mishra, Advocate for the jion-appUcaxit No. 4 are heard. 5, Order impugned aad ofher documents perused, 6, Learaed counsel for fhe petitioner vehemenfly argued fbat tbis evidence is siifl&cient for showiag fhe mvolveiiKnt of noxi-appMc^int No. 6 for proceediag agaiast tiie person ia coiirse of trial who has not been origmaUy made aa accused under Section 319 ofthe Code of Crimmal Procedure, 1973 (in short 'fhe Code^ the Court is required to see the prinia facie evidence agamst such person but Court is not rcquired to consider fhe details ofevideHce aiid to we^h the evidence. In fhe present case, prosecutfon has collected prfema- facie evidence agaiast fhe noii-appUcant No. 6 but Coiart below has fafled to proceed a^aiast noH-appUcaiit No. 6 aad fhercby coiamitted an iUegality and has faUed to exercise fhe jiuisdiction vested on it 7. Learaed counsel for fhe petitioner placed reUaiice in fhe loaatter of Bholii Ram v. State of Punjab aad Aaiather1 ia which Suprcme Court has held fhat even the accused is competent to file appHcatioa uader Section 319 offhe Code and Court te rcquired to exaiaiae fhe evidence and if it appears fix>m fhe evidence some ^rsons ofbier tihiaa fhe accused before tiim is also mvolved iii fhat vexy offence fhen Coxirt is competent to summon fhat person. 8, Learaed counsel for fhe petitioner furfher placed reMance io. fhe matter ofJaggeevan Ttwari v. State of M.P. and Others3 m which High Court of M,P, has held fhat for exercising powers uiider Sectfon 1 (2008) 9 SCC 140 2 [2005(3) M.P.L.J.] Page-398 ^. ^HMHHHV 319 of fhe Code, Court is required to see iS a prima facie cs^& is made out aad not consider ffae detoils and we%h the evidence. 9, Leanied counsel for the petitioner also placed reUaaice ia fhe matter of Katlaah Nath Kattar v. State of M.P.3 m wNch Higfa Court of M,P. has held fhat at the time of proceediag a^imst fhe a<x?used Coiirt is reqiiired to see availabUity of "sufi&cient evfelence" mdicatiiig his iQvoIveinent iii fhe ojffence, 10, Learaed counsel for fhe petitioner also placed reUance ia fhe matter ofRajeudra Sin^h v. State of U.P. and Another4 m which SupFaaae Court has held that Court is competent to proceed agaiast fhe person who has not beeii inade an accixsed on fhe basis of "evidence" adduced before it. 11. Oii fhe other haad, leamed counsel fbr fhe State/non-applicaat No, 1 opposed fhe revision aad leamed counsel for fhe non-appMcaat No. 4 has neither supported fhe case of petitioner nor opposed the case ofpetitioner. 12, In order to attract fhe provisioas of Section 319 of fhe Cc%le it is sine-quo-non to Court fhere must be evidence relatmg to mvolvement offhe persons whom prosecution has not made accused earMer, In fhe present case, copy of First Itiformation Report reveal fhat Assistaat ComimssiQner Tnbal Developxiient, Surguja was in connivaace with Prcsident, Rctshiriya Sahkari Upbhokta Bhandar, Indore has committed aforesaid ofifence punisfaable under Sections 120-B, 420, 467, 468 of fhe hidian Penal Code aad under Sections 13(1) (d) (II) & (III) ofthe Prcvention of Cormption Act, 1988 but at 3 [2005(3) M.P.L.J.I F^ge-303 4 (2007) 7 SCC 378 ^ fhie tioie of filing charge-sheet, Ecoxiomic Offezices Investi^atioxi Bureau has not made non-appUcant No. 6 as accused aaad he was shown as a witaess who was exaiaiaed by fhe pax^secut&on iai fhe trial as awitoess No. 86, who has categoricatty deposed fhat he was President, Rcushtriya Sahkari Upbhokta Bhandcxr, Indore diinng alleged time ofiacident, one Raaimaresli Singh Chouhaa came with supply oider to tiim and has agreed for paynient on the basis of suppfy oxder, he has supplied Over Head Tanks aiid has received money for Rashtriya Scthkari Upbhokta Bhandkr, Indoxe, Iii his detail cross-examiaation, he has denicd that he has sent quotation, letter or documents to Assistant Coinmissioner Tribal Devetopmeiit, Surguja who has acted on the basis ofaUeged docituients which has been said to be forged, Except fhe evidence of non-appUcaat No» 6, present petitioner has not filed aay other copy of deposition of witaesses or dociiments to show his iavolvemeat ia conmuBsion of oflTence, Evidence of non-appUcaiit No, 6 completely excludes his possibilily of iavolvement virtuafly, m fhe present case, therc is no prmia-facie inaterial to show evidence agam.st noxi-appUcant No< 6 for his involvement iii crime then the ofifence for piDceediaig agaiast him, 13. As held ia cases ofBholu Raia & Rftj|endra Siaij^i (Supre^ at fhe time of proceedmg agamst fhe person who has not made accused by tiie prosecution at the early stage prosecution is rcquired to adduce evidence but ia fhe present ca^e, prosecution has not adduced aoy evidence. 14. In case ofKaIlash Hath Katiar (Supra) H^h Court of M.P. has held that sufllcient evidence iiidicatmg Ihe i&volvement of fhe person is /^ V!S9/ ^Y.l^^"^' '-^•«..i2? ..•^y ^^.^ required but ia fhe present case, petitioner or prosecution bave not adduced any evidence ofiovolveiiient agaiast non-applicant No. 6, 15. As held in case of Jagjeevan Tiwarl (Supm) ffaat at the time of proceedmg agahist the person under Section 319 oftlie Code, Court is required to see whether there is prima-facie case xaade out agamst ffae petitioner, nothing has been shown by the petitioiier relatmg to prima feicie case, 16. In case of Mtchael Machado aad Attothet v* Cientral Biureau of Ittvestigattoa6 ia which Supreine Court has he^ld fhat ia order to see the prima facie case agamst fhe applicaiit at fhe st^e of uader Section 319 of fhe Code, Court is required to examioe the evidence avaUable or adduce on behalf of fhe prosecution aiid it is not enough that fhe Court entertahied soine doubt, firoin fhe evidence, about fhe iiivolvenient of aaoflier person ia fhe ojffence but fhe Coiul must have reasonable satisfaction fromi the evidence already coltected aad in fhe case of witaess exaimned m huge numbers, Court is also required to examiae fhe evidence on fhe basis of such evidence whether Court is hopeful that there is reasonable piDspect against newly added person for endiag trial ia convictk>ii, Paras- 11 & 14 of fhe said judgment reads as follows:- Mll. Ths basic requiremBnt for inuoklng the above sedtwn is that it should appear to the court fram the evidence ooHected during trial or in the inquiry that some ather person, whD is not arraigned cts an aocused in that oase, has oomimtted an offenceforwhidz thatperson could be tried together with the aocused cdready armigned. S is not enough that the aourt ' (2000) 3 SCC 262 •/y^\ ffca/1 a'/^^l1 i ^. entertained some dauN, jfrom the cuidenoe, about the imfohfement of arvother person in the ajfence. In other words, the court must haue masanabte satisfaction from the euidenoe cdready ooltected regarding two aspects. Ftrst is that the othsr person has oommifted an offenoe. Swond is that for such offenoe that otherperson oould as well be tried atong with the already armigned accused. 14. The Court while deading whether to im^ke the power under section 319 af the Code, nwst address itself about the other constrodnta imposed by the first limb of sub-sectian (4), that proceedings in respect of newbj-added pm^ons shaU be cammenoed afreshand the wttnes^fs m- examined. The whote pnooeedmgs ymisf be reoommended Jrom the beginmng of the trial, summon the witnesses onoe again and exarmn^ them and cross-examine them in order to recudz the stage where it had reached earifer. If the witnesses already exarmned are qutte targe m number the Oourt must seriausly oorvsider whether the abjedks sought to be adhieued by sudz exerd^ area worth wasting the whote labour already undertafcen. t/ntess th^ Couft is hopeful that there is a reasanable prospeat ofthe oaseas against newly-bmught aoaissd ending in being convicted of the affenoe oonoemed we zvould say that the court should refrain from adopting such a oourse ofadtion. y 17. In case ofMichael Madiado (Suprs^ in which Supreme Court has held fhat at fhe time ofconsidering the evidence agaiast tihe person for proceediag under Section 319 of the Code, Court is reqirired to exaxmne fhe evidence showiag defiisite involvement of fhe per^ia who has not made aa accused at early stage, y3^ ,.^^^ '"%, J"7 &-'..,..-.„ 1 K •siSyi3ft-. 11 \'v^m^ ? 18. WhUe deatmg wifh the same questioa ia case ofBrtoAaban Ites aad Others v. State of West BengBd6 in which Suprcme Court has held that Court is required to evaluate ffae material and aafy fhe power under Section 319 of the Code should be iavoked where it is iaiperative to xxieet ends ofjustice for exercisicig fhe power uiider Section 319 of fhe Code, prosecutioa is required to adduce substaative evidence, 19, In fhe present case, ia absence of any evidence against fbe petitioxier, Coiirt below has dismissed fhe application. In ffae Ught of aforesaid toucfa stone of law, avaflability of evidence of substaative nature against fh.e person newly added accused as sin^-^o-non suspicion or doubt relating to commission of offence by ncwly added accused is not suflBcient for iavoklng power under Sectioii 319 offhe Code. 20. In absence of evMence of substantive nature leamed Special Judge, Ambikapur has rightly dismissed fhe application filed imder Sectioa 319 of the Code ffaat too at later stage after exammatioai of 82 witnesses, By disxmssing fhe appUcation, Court below Iias neither committed an iUegality nor failed to exercise fhe jurisdiction vested on it Consequently, criminal revision is wifhout substance and even without any prfaaaa-facie material saixie is liable to be disixiissed aaid is hereby disixdssed wifli cost of Rs, 2,000/~ payable to State/non- appUcaat No, 1 withia 30 days fix>iii today, I T.P. Sharma Judge 1} y • (2009) 3 SCC 329