HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1046 OF 2010 DATE:16.08.2010 Between: Yasa Srinivasa Reddy and 2 others …… Petitioners. And: Yasa Sunitha and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1046 OF 2010 ORDER: 1. This revision petition is filed by the newly added accused Nos.4 to 6 questioning order dated 15.04.2010 passed by the Judicial Magistrate of the First Class, Nakrekal in Criminal M.P.No.804 of 2009 in C.C.No.514 of 2007 by which the lower court allowed the petition filed by the prosecution under Section 319 Cr.P.C impleading the petitioners 1 to 3 herein as A-4 to A-6 in the pending case and issuing summonses to them. 2. The 1st respondent is the defacto-complainant and she filed private complaint in the lower court against A-1 to A-6 alleging offences punishable under Sections 498-A, 323 and 506 IPC. The said private complaint was referred by the lower court to the Nakrekal police for investigation. The police after investigation filed charge sheet against A- 1 to A-3 only by deleting A-4 to A-6 from the case. The lower court took the charge sheet for the above offences against A-1 to A-3 only and proceeded with trial. The 1st respondent as P.W.1 gave the same version contained in her private complaint and in her statement recorded by the police during investigation under Section 161 Cr.P.C, during her examination in chief. Thereupon, the Assistant Public Prosecutor filed the present petition in the lower court under Section 319 Cr.P.C requesting the lower court to issue summonses to the petitioners herein also and try them along with A-1 to A-3 in that case. The lower court allowed the said petition and directed issuing of summonses to A-4 to A- 6. 3. It is contended by the petitioners’ counsel relying upon Mohd. Shafi v. Mohd. Rafiq[1] of the Supreme Court and Gulam Mondal v Nazam Hossain[2] of the Calcutta High Court that lower court should have exercised the power of summoning new accused persons under Section 319 Cr.P.C in a sparing manner and that the said discretion should have been exercised after satisfying about the possibility of the newly added accused in all likelihood would be convicted and that such suggestion can be arrived at only after completion of cross-examination of the witnesses. But, in the subsequent decision in Harbhajan Singh v. State of Punja[3] the Supreme Court clarified that the word ‘evidence’ occurring in Section 319 Cr.P.C includes examination in chief also and that there is no prohibition for exercising the power under Section 319 Cr.P.C on recording of examination-in-chief of a witness and even before that witness is cross-examined. A reference on this point is pending with larger bench of the Supreme Court. 4. In the case on hand, this Court is of the opinion that there is an irregularity and impropriety committed by the lower court in as much as no notice was given to the complainant at the time of taking cognizance of the case for the above offences against A-1 to A-3 only. When the police, after investigation, filed final report deleting A-4 to A-6 from the case, the investigating officer should have given referred notice to the 2nd respondent in respect of referring the case in so far as A-4 to A-6 are concerned by deleting their names. Further, before taking cognizance against A-1 to A-3 only, the lower court should have given notice to the 1st respondent/defacto-complainant appraising her of the police report deleting A-4 to A-6 from this case. If such notice was given either by the investigating officer and by the lower court, then the 1st respondent could have filed a protest petition in that regard, in which event, the lower court would have conducted pre-cognizance enquiry under Section 200 Cr.P.C, in which enquiry the 1st respondent might have examined herself as well as other witnesses to show complicity of A-4 to A-6 for the above offences. It caused prejudice to the 1st respondent as she was not given opportunity to contest final report of the police in so far as A-4 to A-6 are concerned. It necessitated the Assistant Public Prosecutor to file the present petition in the lower court after examination-in-chief of the 1st respondent as P.W.1 and her father as P.W.2 to implead A-4 to A-6 in this case for trying them along with A- 1 to A-3. 5. Placing reliance on Ibrahim Khan v. State[4] of the Rajasthan High Court, it is contended by the petitioners’ counsel that when once trial of the case was taken up and evidence was recorded, the Magistrate becomes functus officio to take further cognizance of the same case under Section 190 Cr.P.C. Question involved in Ibrahim Khan (3 supra) is whether the Magistrate still retains power under Section 190 Cr.P.C when once the case is committed to the Court of Sessions and the Sessions Court started trial of the case. While holding that in such situation, the Magistrate becomes functus officio in respect of that case and cannot invoke Section 190 Cr.P.C to take cognizance against any accused person for the same offence, the Rajasthan High Court made it clear therein to the effect that it is not the position in respect of a case where the Magistrate himself was trying it. It was observed therein: “The position may be different if during the pendency of the private complaint before the Magistrate it is brought to his notice that in respect of the same occurrence a police case also has been registered. The Magistrate in that case may call the report from the police and proceed under Section210, Cr.P.C. Similarly, if a police report under S. 173, Cr.P.C and a private complaint are filed simultaneously, the Magistrate may pass appropriate order of issuing process against the person not challenged by the police provided he has not become functus officio in so far as his powers under Section 190 Cr.P.C is concerned” (It appears there is printing mistake as “challenged” instead of “challaned”). 6. Contention of the petitioners’ counsel based on Rani Zahir Ahmad v. State of Haryana[5] of the Punjab and Haryana High Court that all the petitioners are residing separately from the defacto- complainant and A-1, is a contention which has to be urged at the time of assessment of evidence on record by the lower court for final disposal of the case. 7. In Ram Singh v. Ram Niwas[6], the Supreme Court observed: “What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if un-rebutted, would lead to conviction of the persons sought to be added as accused in the case.” In the case on hand, already P.Ws.1 and 2 were examined in chief in the lower court. After perusing the same, the lower court came to the conclusion that evidence of P.Ws.1 and 2 prima facie shows that there is ample evidence against the proposed accused as wiled allegations were made. The lower court did not observe that there is prima facie case for impleading A-4 to A-6; but held that there is ample evidence against the proposed accused with wiled allegations. The above evidence of P.Ws.1 and 2, if un-rebutted in their cross-examination and in further trial, then it will lead to conviction of A-4 to A-6 also for the above offences. In that view of the matter, this Court is of the opinion that adding A-4 to A-6 for being tried along with A-1 to A-3 by the lower court, is not illegal or improper. 8. Hence, the criminal revision petition is dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:16.08.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1046 OF 2010 Date:16.08.2010 Gk. [1] 2007 CRI.L.J.3198 [2] 1987 CRI.L.J.729 [3] (2009) 13 SCC 608 [4] 1999 CRI.L.J.2614 [5] 2006 CRI.L.J.1757 [6] (2009) 14 Supreme Court Cases 25