Case: Harinarayan G. Bajaj Vs. State of Maharashtra and Ors

3. The factual scenario: A complaint was filed against three accused persons, being respondent Nos.2, 3 and 4 herein for offence under Section 406 read with Section 114 of the Indian Penal Code (for short IPC) in the Court of the Metropolitan Magistrate. We need not go into the facts stated in the said complaint in view of the narrow question which falls for consideration in this appeal. The Trial Court took the cognizance of the offences on 03-04-1998 and issued process against respondent Nos.2 to 4. The Trial Court proceeded to examine the witnesses before framing the charge. Number of revision including the discharge application were filed by the accused and the trial went on up to 1509-2005 when the Bombay High Court expedited the trial. On 13-06-2006, the cross-examination of the first witness of the prosecution at the stage of evidence before charge was completed by the Advocate of the accused persons. This cross-examination ran into 115 pages. Since the matter could not be finished up to the date fixed by the Bombay High Court, it was extended up to 30-06-2006 for completion of trial. The time was further extended till December, 2006 and further up to 31-05-2007. In the meantime, the second witness was cross-examined which cross-examination consisted of 148 pages. Likewise, third witness of the prosecution was also examined on 11-05-2007. The Trial Court discharged Shri. Pramod Banka and Smt. Rani V. Agrawal and framed charge against the third respondent herein. The time was again extended by the High Court till 31-12-2007. This was challenged by way of the revision by the appellant, which was allowed. The third respondent also filed a revision which was dismissed by the High Court and the High Court directed the Trial to frame charge against respondent Nos.2 to 4 also under the provisions of Sections 403,409 read with Section 34, IPC. Ultimately, the charges came to be framed against respondent Nos.2 to 4 on 28-11-2007.4. At this stage, on 15-12-2007, the appellant herein filed an application under Section 319, Cr.P.C. requesting to array respondent No.5 herein as a co-accused in the said proceedings. On 31-12-2007, this application was allowed and the summons was issued to the 5th respondent, Creative Garments Ltd. a company incorporated under the Companies Act through its Managing Director.5. On 03-01-2008, the 5th respondent preferred an application to the Trial Court to commence the proceedings qua the 5th respondent from the stage of inquiry i.e. from the stage of Section 244, Cr.P.C. and to allow the cross-examination of the witnesses of the prosecution at the stage of evidence before charge. On 22-02-2008, this application came to be allowed. However, the Trial Court split the trial of respondent No.5 and the other respondent Nos.2 to 4. Respondent Nos.2 to 4 challenged the order dated 22-02-2008 splitting the trial. That order was quashed by the High Court by an order dated 31-03-2008. Further, an application came to be made by respondents on 15-04-2008 seeking the clarification of the High Courts order which clarification was given by the High Court on 23-04-2008 holding that the order was restricted only to the aspect of splitting of trial and not to any other matter.6. The appellant also filed a criminal application on 30-04-2008 seeking the quashing of the order dated 22-02-2008 by which the Trial Court had ordered the de novo proceedings as against respondent No.5 from the stage of inquiry. Further, a direction was sought to straightaway frame charge against respondent No.5 for the same offence with which respondent Nos.2 to 4 were charged. The High Court, however, rejected this application by the complainant (appellant herein) and held that there could be no dispute that the Court must commence de novo proceedings against respondent No.5 and it further observed that mere delay which might be caused to the complaint would be of no consequence.

Reasoning:
12. We would also give a meaningful interpretation of the word proceedings which has been deliberately used by the Legislature. The Legislature does not use the word trial which essentially begins after framing of the charge. If the Legislature had intended that the newly joined accused should not get the right of cross-examining the witnesses examined before framing of the charge, it might have used the word trial. The deliberate use of the word proceedings would then include not only the trial but also the inquiry which commences with Section 244, Cr.P.C. and ends with the framing of the charge under Section 246, Cr.P.C. The terminology commence afresh has also its own force. It indicates that the whole inquiry which commences from Section 244, Cr.P.C. must begin afresh. The interpretation that we give to the words proceedings is buttressed by the language of 319(b). Cr.P.C. The plain language takes back the whole proceedings to the stage of taking cognizance. If we accept the contention of the appellant herein, then subclause (b) would be rendered otiose. We have, therefore, no doubt that the language of Section 319. Cr.P.C. itself pushes the proceedings back to the stage of inquiry, once the order under Section 319(1) Cr.P.C. is passed by the Court and a new accused is joined therein.13. There is one more angle and that is the angle of mischief. If the interpretation given by the appellant is to be accepted then a complainant, wherein it is a case of multiple accused, may mischievously join only few of them and after getting the charge framed, make an application under Section 319, Cr.P.C. to join some other accused persons who would then have no right of cross-examination of the witnesses and who would be required to be the mute spectators to the charge being framed against which they could have successfully resisted by cross-examining the witnesses.14. There is one more aspect that before summoning the accused under Section 319(1), Cr.P.C. there is no requirement of allowing such accused person to cross-examine the witnesses. That stage comes only after an accused is summoned under sub-section (1). Therefore, it would be a case where the newly added accused who has not had the advantage of hearing the evidence would be put to prejudice because firstly. he has not heard the evidence and secondly, he cannot even cross-examine those witnesses in the warrant trial based on a private complaint.This Court has already held that right to cross-examine the witness who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundness and that there is no scope for framing a charge against him. In Ajoy Kumar Ghose Vs. State of Jharkhand [Criminal Appeal No.485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to the accused to cross-examine the witnesses examined before framing the charge and that the said right is extremely important. It is observed in pararight of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses who have been offered at the stage of Section 244(1), Cr.P.C.Therefore, the situation is clear that under Section 244, Cr.P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witness would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence. This Court has already held so in Shashi Kant Singh Vs. Tarkeshwar Singh & Anr. [2002(5) SCC 738].