In a case Hardeep Singh Vs. State of Punjab and
Others (supra) relied upon by the learned counsel for the
respondent No.4, the Supreme Court in the reference had
formulated certain question and so far as question no.3
which is relevant for the present discussion is reproduced
herein below :
question no.3 :
“Whether the word 'evidence' used in Section
319(1) Cr.P.C. has been used in a
comprehensive sense and includes the
evidence collected during investigation or the
word 'evidence' is limited to the evidence
recorded during trial ?”
12. The Hon’ble Supreme Court while answering the
aforesaid question in paragraph no.81 to 85 made following
observations :
81. An inquiry can be conducted by the Magistrate or court at any
stage during the proceedings before the court. This power is
preserved with the court and has to be read and understood
accordingly. The outcome of any such exercise should not be an
impediment in the speedy trial of the case. Though the facts so
received by the magistrate or the court may not be evidence, yet it is
some material that makes things clear and unfolds concealed or
deliberately suppressed material that may facilitate the trial. In the
context of Section 319 Cr.P.C. it is an information of complicity.
Such material therefore, can be used even though not an evidence in
strict sense, but an information on record collected by the court
during inquiry itself, as a prima facie satisfaction for exercising the
powers as presently involved.
82. This pre-trial stage is a stage where no adjudication on the
evidence of the offences involved takes place and therefore, after the
material alongwith the charge-sheet has been brought before the
court, the same can be inquired into in order to effectively proceed
with framing of charges. After the charges are framed, the
prosecution is asked to lead evidence and till that is done, there is no
evidence available in the strict legal sense of Section 3 of the
Evidence Act. The actual trial of the offence by bringing the accused
before the court has still not begun. What is available is the material
that has been submitted before the court along with the charge-sheet.
In such situation, the court only has the preparatory material that has
been placed before the court for its consideration in order to proceed
with the trial by framing of charges.
83. It is, therefore, not any material that can be utilized, rather it is
that material after cognizance is taken by a court, that is available to
it while making an inquiry into or trying an offence, that the court
can utilize or take into consideration for supporting reasons to
summon any person on the basis of evidence adduced before the
Court, who may be on the basis of such material, treated to be an
accomplice in the commission of the offence. The inference that can
be drawn is that material which is not exactly evidence recorded
before the court, but is a material collected by the court, can be
utilized to corroborate evidence already recorded for the purpose of
summoning any other person, other than the accused. This would
harmonize such material with the word ‘evidence’ as material that
would be supportive in nature to facilitate the exposition of any other
accomplice whose complicity in the offence may have either been
suppressed or escaped the notice of the court.
84. The word “evidence” therefore has to be understood in its wider
sense both at the stage of trial and, as discussed earlier, even at the
stage of inquiry, as used under Section 319 Cr.P.C. The court,
therefore, should be understood to have the power to proceed against
any person after summoning him on the basis of any such material as
brought forth before it. The duty and obligation of the court becomes
more onerous to invoke such powers cautiously on such material
after evidence has been led during trial.
85. In view of the discussion made and the conclusion drawn herein
above, the answer to the aforesaid question posed is that apart from
evidence recorded during trial, any material that has been received by
the court after cognizance is taken and before the trial commences,
can be utilized only for corroboration and to support the evidence
recorded by the court to invoke the power under Section 319 Cr.P.C.
The word ‘evidence’ is thus, limited to the evidence recorded during
trial.
13. In the instant case, admittedly, the learned Magistrate
has not recorded any evidence. However, learned Magistrate
has passed the impugned order on the basis of certain
material that has been received by the court through
respondents no.2 and 3 (original accused) after cognizance is
taken and before trial commences. The Supreme Court in the
aforesaid paragraphs made observations that such material
collected by the Court can be utilized to corroborate the
evidence already recorded for the purpose of summoning any
other person other than accused and accordingly answered
the said question.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 686 OF 2007
Milind S/o Manohar Apte,
V
The State of Maharashtra.
CORAM : V.K. JADHAV, J.
Dated: November 18, 2016
Citation: 2017(2) MHLJ213
1. Being aggrieved by the order dated 14.5.2007 passed
by the Judicial Magistrate First Class, Court No.7, Dhule
below Exh.16 in RCC No.250/2005 the person
arraigned/added as an accused at the instance of original
accused nos. 1 and 2 preferred this criminal writ petition.
2. Brief facts, giving rise to the present writ petition are
as follows :
On the basis of the complaint lodged by respondent
no.4 herein crime no.5/2005 came to be registered against
respondents no.2 and 3 herein for the offence punishable
under Section 52 and 53 of the Maharashtra Regional and
Town Planning Act, 1966. After due investigation, concerned
police station submitted charge sheet against present
respondents no.2 and 3 before Judicial Magistrate First
Class, Court No.7, Dhule.
The present respondent Nos. 2 and 3 in the pending
RCC No.250/2005 filed an application at Exh.16 contending
therein that respondent no.4 complainant has lodged the
complaint not only against them, but also against one Shri
Sanjay Narvekar and present petitioner, who are the officers
of the Bharat Petroleum Corporation Limited. It is further
contended that, without any explanation they are not made
as an accused in the charge sheet. Accordingly, it is prayed
in the said application Exh.16 that present petitioner and
Sanjay Narvekar be arraigned as coaccused. The learned
Magistrate by impugned order dated 14.5.2007 allowed the
application Exh.16 and accordingly the present petitioner is
arraigned as an accused no.3. Hence, this criminal writ
petition.
3. The learned counsel for the petitioner submits that,
though name of the present petitioner is mentioned in the
complaint lodged with the police station, after due
investigation a charge sheet came to be submitted against
present respondents no.2 and 3 only. Learned counsel
submits that, impugned order suffers from incorrect
approach adopted by the learned Magistrate. Learned
Magistrate has not given any opportunity of being heard to
the present petitioner before passing the order impugned in
this writ petition. Even no show cause notice was issued to
the petitioner prior to adding him as an accused in the case.
4. The learned counsel for the petitioner submits that,
word “Evidence” in Section 319 of Cr.P.C. means only such
evidence as is made before the Court, in relation to the
statements, and as produced before the Court, in relation to
documents. It is only such evidence that can be taken into
account by the Magistrate or court to decide whether power
under section 319 of Cr.P.C. is to be exercised and not on the
basis of the material collected during investigation. Learned
counsel submits that the Supreme Court in a case Hardeep
Singh Vs. State of Punjab and Others reported in (2014) 3
SCC 92 considered firstly the stage at which powers under
section 319 of the Cr.P.C. can be invoked; secondly the
material on the basis whereof the invoking of powers u/s 319
of Cr.P.C. can be justified, and thirdly the manner in which
powers under section 319 of Cr.P.C. have to be exercised.
Learned counsel submits that, in the aforesaid case the
Supreme Court has considered question no.3 i.e. “Whether
the word 'evidence' used in Section 319(1) Cr.P.C. has
been used in a comprehensive sense and includes the
evidence collected during investigation or the word
'evidence' is limited to the evidence recorded during
trial ?” and recorded answered that apart from the evidence
recorded during the trial, any material that has been
received by the Court after cognizance is taken and before
the trial commences can be utilized only for corroboration
and to support the evidence recorded by the Court to invoke
powers under section 319 of Cr.P.C. The “Evidence” is thus
limited to the evidence recorded during the trial.
5. Learned counsel submits that in view of the ratio laid
down by the Supreme Court, the impugned order passed by
the learned Magistrate does not survive and same is thus
liable to be quashed and set aside.
6. Learned counsel for respondent no.4original
complainant submits that, admittedly, petitioner was
working as Sales Officer of Bharat Petroleum Corporation
Limited, Dhule at the time of alleged incident and sanction of
plant dated 11.8.2004 was also approved in the name of
Bharat Petroleum Corporation Limited. Respondent no.4
has filed the complaint against the present respondents no.2
and 3 and also the petitioner herein. It has alleged in the
complaint that respondents no.2 and 3 and petitioner herein
have unauthorizedly constructed petrol and diesel tanks
otherwise than in conformity with the development plan in
contravention with the permission and thereby committed an
offence punishable under section 52 and 53 of the MRTP
Act. Learned counsel submits that even respondents no.2
and 3 have produced certain documents alongwith their
application Exh.16 in support of their contention and
brought to the notice of the Court that investigating officer
has deliberately not added/arrayed the petitioner as an
accused in the charge sheet filed before the Court. Learned
counsel submits that, the learned Magistrate has therefore
rightly allowed the application Exh.16. No interference is
required. Writ Petition is devoid of any merit and thus liable
to be dismissed.
7. I have also heard the learned APP for the State.
8. None appears for respondents No.2 and 3.
9. Section 319 of the Code of Criminal Procedure reads as
under :
Section 319 :
“319. Power to proceed against other persons
appearing to be guilty of offence . (1) Where, in the
course of any inquiry into, or trial of, an offence, it appears
from the evidence that any person not being the accused has
committed any offence for which such person could be tried
together with the accused, the Court may proceed against
such person for the offence which he appears to have
committed.
(2) Where such person is not attending the Court, he
may be arrested or summoned, as the circumstances of the
case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under
arrest or upon a summons, may be detained by such Court
for the purpose of the inquiry into, or trial of, the offence
which he appears to have committed.
(4) Where the Court proceeds against any person
under subsection (1) then
(a) the proceedings in respect of such person
shall be commenced afresh, and the witnesses reheard;
(b) subject to the provisions of clause (a), the
case may proceed as if such person had been an accused
person when the Court took cognizance of the offence upon
which the inquiry or trial was commenced.”
10. It is the duty of the court to do justice by punishing
the real culprit. Especially when the Investigating agency for
any reason does not array one of the real culprits as an
accused, the court is not powerless in calling the said
accused to face trial. The question arises under what
circumstances and at what stage should the Court exercise
its power as contemplated in section 319 of the Code ?
11. In a case Hardeep Singh Vs. State of Punjab and
Others (supra) relied upon by the learned counsel for the
respondent No.4, the Supreme Court in the reference had
formulated certain question and so far as question no.3
which is relevant for the present discussion is reproduced
herein below :
question no.3 :
“Whether the word 'evidence' used in Section
319(1) Cr.P.C. has been used in a
comprehensive sense and includes the
evidence collected during investigation or the
word 'evidence' is limited to the evidence
recorded during trial ?”
12. The Hon’ble Supreme Court while answering the
aforesaid question in paragraph no.81 to 85 made following
observations :
81. An inquiry can be conducted by the Magistrate or court at any
stage during the proceedings before the court. This power is
preserved with the court and has to be read and understood
accordingly. The outcome of any such exercise should not be an
impediment in the speedy trial of the case. Though the facts so
received by the magistrate or the court may not be evidence, yet it is
some material that makes things clear and unfolds concealed or
deliberately suppressed material that may facilitate the trial. In the
context of Section 319 Cr.P.C. it is an information of complicity.
Such material therefore, can be used even though not an evidence in
strict sense, but an information on record collected by the court
during inquiry itself, as a prima facie satisfaction for exercising the
powers as presently involved.
82. This pre-trial stage is a stage where no adjudication on the
evidence of the offences involved takes place and therefore, after the
material alongwith the charge-sheet has been brought before the
court, the same can be inquired into in order to effectively proceed
with framing of charges. After the charges are framed, the
prosecution is asked to lead evidence and till that is done, there is no
evidence available in the strict legal sense of Section 3 of the
Evidence Act. The actual trial of the offence by bringing the accused
before the court has still not begun. What is available is the material
that has been submitted before the court along with the charge-sheet.
In such situation, the court only has the preparatory material that has
been placed before the court for its consideration in order to proceed
with the trial by framing of charges.
83. It is, therefore, not any material that can be utilized, rather it is
that material after cognizance is taken by a court, that is available to
it while making an inquiry into or trying an offence, that the court
can utilize or take into consideration for supporting reasons to
summon any person on the basis of evidence adduced before the
Court, who may be on the basis of such material, treated to be an
accomplice in the commission of the offence. The inference that can
be drawn is that material which is not exactly evidence recorded
before the court, but is a material collected by the court, can be
utilized to corroborate evidence already recorded for the purpose of
summoning any other person, other than the accused. This would
harmonize such material with the word ‘evidence’ as material that
would be supportive in nature to facilitate the exposition of any other
accomplice whose complicity in the offence may have either been
suppressed or escaped the notice of the court.
84. The word “evidence” therefore has to be understood in its wider
sense both at the stage of trial and, as discussed earlier, even at the
stage of inquiry, as used under Section 319 Cr.P.C. The court,
therefore, should be understood to have the power to proceed against
any person after summoning him on the basis of any such material as
brought forth before it. The duty and obligation of the court becomes
more onerous to invoke such powers cautiously on such material
after evidence has been led during trial.
85. In view of the discussion made and the conclusion drawn herein
above, the answer to the aforesaid question posed is that apart from
evidence recorded during trial, any material that has been received by
the court after cognizance is taken and before the trial commences,
can be utilized only for corroboration and to support the evidence
recorded by the court to invoke the power under Section 319 Cr.P.C.
The word ‘evidence’ is thus, limited to the evidence recorded during
trial.
13. In the instant case, admittedly, the learned Magistrate
has not recorded any evidence. However, learned Magistrate
has passed the impugned order on the basis of certain
material that has been received by the court through
respondents no.2 and 3 (original accused) after cognizance is
taken and before trial commences. The Supreme Court in the
aforesaid paragraphs made observations that such material
collected by the Court can be utilized to corroborate the
evidence already recorded for the purpose of summoning any
other person other than accused and accordingly answered
the said question.
14. In view of the authoritative pronouncement of the
Hon’ble Supreme Court, the order impugned in this criminal
writ petition does not survive, however, respondents no.2 and
3 /original accused or respondent no.4 original complainant
are at liberty to file an application u/s 319 of Cr.P.C. after
recording of the evidence, if occasion, so arises, and the
learned Magistrate may consider such application and decide
it in accordance with law. Hence, following order is passed.
O R D E R
I. Criminal Writ Petition is hereby allowed in
terms of prayer clause “B”.
II. Respondents No.2 and 3 original accused
and respondent No.4 Municipal
Corporation, Dhule – original complainant
are at liberty to file an application under
section 319 of the Code of Criminal
Procedure after recording of the evidence, if
occasion so arises, and the learned
Magistrate may consider such application
and decide it in accordance with law.
3. Rule is made absolute in above terms.
4. Criminal writ petition accordingly disposed
off.
( V.K. JADHAV, J. )
Print Page
Others (supra) relied upon by the learned counsel for the
respondent No.4, the Supreme Court in the reference had
formulated certain question and so far as question no.3
which is relevant for the present discussion is reproduced
herein below :
question no.3 :
“Whether the word 'evidence' used in Section
319(1) Cr.P.C. has been used in a
comprehensive sense and includes the
evidence collected during investigation or the
word 'evidence' is limited to the evidence
recorded during trial ?”
12. The Hon’ble Supreme Court while answering the
aforesaid question in paragraph no.81 to 85 made following
observations :
81. An inquiry can be conducted by the Magistrate or court at any
stage during the proceedings before the court. This power is
preserved with the court and has to be read and understood
accordingly. The outcome of any such exercise should not be an
impediment in the speedy trial of the case. Though the facts so
received by the magistrate or the court may not be evidence, yet it is
some material that makes things clear and unfolds concealed or
deliberately suppressed material that may facilitate the trial. In the
context of Section 319 Cr.P.C. it is an information of complicity.
Such material therefore, can be used even though not an evidence in
strict sense, but an information on record collected by the court
during inquiry itself, as a prima facie satisfaction for exercising the
powers as presently involved.
82. This pre-trial stage is a stage where no adjudication on the
evidence of the offences involved takes place and therefore, after the
material alongwith the charge-sheet has been brought before the
court, the same can be inquired into in order to effectively proceed
with framing of charges. After the charges are framed, the
prosecution is asked to lead evidence and till that is done, there is no
evidence available in the strict legal sense of Section 3 of the
Evidence Act. The actual trial of the offence by bringing the accused
before the court has still not begun. What is available is the material
that has been submitted before the court along with the charge-sheet.
In such situation, the court only has the preparatory material that has
been placed before the court for its consideration in order to proceed
with the trial by framing of charges.
83. It is, therefore, not any material that can be utilized, rather it is
that material after cognizance is taken by a court, that is available to
it while making an inquiry into or trying an offence, that the court
can utilize or take into consideration for supporting reasons to
summon any person on the basis of evidence adduced before the
Court, who may be on the basis of such material, treated to be an
accomplice in the commission of the offence. The inference that can
be drawn is that material which is not exactly evidence recorded
before the court, but is a material collected by the court, can be
utilized to corroborate evidence already recorded for the purpose of
summoning any other person, other than the accused. This would
harmonize such material with the word ‘evidence’ as material that
would be supportive in nature to facilitate the exposition of any other
accomplice whose complicity in the offence may have either been
suppressed or escaped the notice of the court.
84. The word “evidence” therefore has to be understood in its wider
sense both at the stage of trial and, as discussed earlier, even at the
stage of inquiry, as used under Section 319 Cr.P.C. The court,
therefore, should be understood to have the power to proceed against
any person after summoning him on the basis of any such material as
brought forth before it. The duty and obligation of the court becomes
more onerous to invoke such powers cautiously on such material
after evidence has been led during trial.
85. In view of the discussion made and the conclusion drawn herein
above, the answer to the aforesaid question posed is that apart from
evidence recorded during trial, any material that has been received by
the court after cognizance is taken and before the trial commences,
can be utilized only for corroboration and to support the evidence
recorded by the court to invoke the power under Section 319 Cr.P.C.
The word ‘evidence’ is thus, limited to the evidence recorded during
trial.
13. In the instant case, admittedly, the learned Magistrate
has not recorded any evidence. However, learned Magistrate
has passed the impugned order on the basis of certain
material that has been received by the court through
respondents no.2 and 3 (original accused) after cognizance is
taken and before trial commences. The Supreme Court in the
aforesaid paragraphs made observations that such material
collected by the Court can be utilized to corroborate the
evidence already recorded for the purpose of summoning any
other person other than accused and accordingly answered
the said question.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 686 OF 2007
Milind S/o Manohar Apte,
V
The State of Maharashtra.
CORAM : V.K. JADHAV, J.
Dated: November 18, 2016
Citation: 2017(2) MHLJ213
1. Being aggrieved by the order dated 14.5.2007 passed
by the Judicial Magistrate First Class, Court No.7, Dhule
below Exh.16 in RCC No.250/2005 the person
arraigned/added as an accused at the instance of original
accused nos. 1 and 2 preferred this criminal writ petition.
2. Brief facts, giving rise to the present writ petition are
as follows :
On the basis of the complaint lodged by respondent
no.4 herein crime no.5/2005 came to be registered against
respondents no.2 and 3 herein for the offence punishable
under Section 52 and 53 of the Maharashtra Regional and
Town Planning Act, 1966. After due investigation, concerned
police station submitted charge sheet against present
respondents no.2 and 3 before Judicial Magistrate First
Class, Court No.7, Dhule.
The present respondent Nos. 2 and 3 in the pending
RCC No.250/2005 filed an application at Exh.16 contending
therein that respondent no.4 complainant has lodged the
complaint not only against them, but also against one Shri
Sanjay Narvekar and present petitioner, who are the officers
of the Bharat Petroleum Corporation Limited. It is further
contended that, without any explanation they are not made
as an accused in the charge sheet. Accordingly, it is prayed
in the said application Exh.16 that present petitioner and
Sanjay Narvekar be arraigned as coaccused. The learned
Magistrate by impugned order dated 14.5.2007 allowed the
application Exh.16 and accordingly the present petitioner is
arraigned as an accused no.3. Hence, this criminal writ
petition.
3. The learned counsel for the petitioner submits that,
though name of the present petitioner is mentioned in the
complaint lodged with the police station, after due
investigation a charge sheet came to be submitted against
present respondents no.2 and 3 only. Learned counsel
submits that, impugned order suffers from incorrect
approach adopted by the learned Magistrate. Learned
Magistrate has not given any opportunity of being heard to
the present petitioner before passing the order impugned in
this writ petition. Even no show cause notice was issued to
the petitioner prior to adding him as an accused in the case.
4. The learned counsel for the petitioner submits that,
word “Evidence” in Section 319 of Cr.P.C. means only such
evidence as is made before the Court, in relation to the
statements, and as produced before the Court, in relation to
documents. It is only such evidence that can be taken into
account by the Magistrate or court to decide whether power
under section 319 of Cr.P.C. is to be exercised and not on the
basis of the material collected during investigation. Learned
counsel submits that the Supreme Court in a case Hardeep
Singh Vs. State of Punjab and Others reported in (2014) 3
SCC 92 considered firstly the stage at which powers under
section 319 of the Cr.P.C. can be invoked; secondly the
material on the basis whereof the invoking of powers u/s 319
of Cr.P.C. can be justified, and thirdly the manner in which
powers under section 319 of Cr.P.C. have to be exercised.
Learned counsel submits that, in the aforesaid case the
Supreme Court has considered question no.3 i.e. “Whether
the word 'evidence' used in Section 319(1) Cr.P.C. has
been used in a comprehensive sense and includes the
evidence collected during investigation or the word
'evidence' is limited to the evidence recorded during
trial ?” and recorded answered that apart from the evidence
recorded during the trial, any material that has been
received by the Court after cognizance is taken and before
the trial commences can be utilized only for corroboration
and to support the evidence recorded by the Court to invoke
powers under section 319 of Cr.P.C. The “Evidence” is thus
limited to the evidence recorded during the trial.
5. Learned counsel submits that in view of the ratio laid
down by the Supreme Court, the impugned order passed by
the learned Magistrate does not survive and same is thus
liable to be quashed and set aside.
6. Learned counsel for respondent no.4original
complainant submits that, admittedly, petitioner was
working as Sales Officer of Bharat Petroleum Corporation
Limited, Dhule at the time of alleged incident and sanction of
plant dated 11.8.2004 was also approved in the name of
Bharat Petroleum Corporation Limited. Respondent no.4
has filed the complaint against the present respondents no.2
and 3 and also the petitioner herein. It has alleged in the
complaint that respondents no.2 and 3 and petitioner herein
have unauthorizedly constructed petrol and diesel tanks
otherwise than in conformity with the development plan in
contravention with the permission and thereby committed an
offence punishable under section 52 and 53 of the MRTP
Act. Learned counsel submits that even respondents no.2
and 3 have produced certain documents alongwith their
application Exh.16 in support of their contention and
brought to the notice of the Court that investigating officer
has deliberately not added/arrayed the petitioner as an
accused in the charge sheet filed before the Court. Learned
counsel submits that, the learned Magistrate has therefore
rightly allowed the application Exh.16. No interference is
required. Writ Petition is devoid of any merit and thus liable
to be dismissed.
7. I have also heard the learned APP for the State.
8. None appears for respondents No.2 and 3.
9. Section 319 of the Code of Criminal Procedure reads as
under :
Section 319 :
“319. Power to proceed against other persons
appearing to be guilty of offence . (1) Where, in the
course of any inquiry into, or trial of, an offence, it appears
from the evidence that any person not being the accused has
committed any offence for which such person could be tried
together with the accused, the Court may proceed against
such person for the offence which he appears to have
committed.
(2) Where such person is not attending the Court, he
may be arrested or summoned, as the circumstances of the
case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under
arrest or upon a summons, may be detained by such Court
for the purpose of the inquiry into, or trial of, the offence
which he appears to have committed.
(4) Where the Court proceeds against any person
under subsection (1) then
(a) the proceedings in respect of such person
shall be commenced afresh, and the witnesses reheard;
(b) subject to the provisions of clause (a), the
case may proceed as if such person had been an accused
person when the Court took cognizance of the offence upon
which the inquiry or trial was commenced.”
10. It is the duty of the court to do justice by punishing
the real culprit. Especially when the Investigating agency for
any reason does not array one of the real culprits as an
accused, the court is not powerless in calling the said
accused to face trial. The question arises under what
circumstances and at what stage should the Court exercise
its power as contemplated in section 319 of the Code ?
11. In a case Hardeep Singh Vs. State of Punjab and
Others (supra) relied upon by the learned counsel for the
respondent No.4, the Supreme Court in the reference had
formulated certain question and so far as question no.3
which is relevant for the present discussion is reproduced
herein below :
question no.3 :
“Whether the word 'evidence' used in Section
319(1) Cr.P.C. has been used in a
comprehensive sense and includes the
evidence collected during investigation or the
word 'evidence' is limited to the evidence
recorded during trial ?”
12. The Hon’ble Supreme Court while answering the
aforesaid question in paragraph no.81 to 85 made following
observations :
81. An inquiry can be conducted by the Magistrate or court at any
stage during the proceedings before the court. This power is
preserved with the court and has to be read and understood
accordingly. The outcome of any such exercise should not be an
impediment in the speedy trial of the case. Though the facts so
received by the magistrate or the court may not be evidence, yet it is
some material that makes things clear and unfolds concealed or
deliberately suppressed material that may facilitate the trial. In the
context of Section 319 Cr.P.C. it is an information of complicity.
Such material therefore, can be used even though not an evidence in
strict sense, but an information on record collected by the court
during inquiry itself, as a prima facie satisfaction for exercising the
powers as presently involved.
82. This pre-trial stage is a stage where no adjudication on the
evidence of the offences involved takes place and therefore, after the
material alongwith the charge-sheet has been brought before the
court, the same can be inquired into in order to effectively proceed
with framing of charges. After the charges are framed, the
prosecution is asked to lead evidence and till that is done, there is no
evidence available in the strict legal sense of Section 3 of the
Evidence Act. The actual trial of the offence by bringing the accused
before the court has still not begun. What is available is the material
that has been submitted before the court along with the charge-sheet.
In such situation, the court only has the preparatory material that has
been placed before the court for its consideration in order to proceed
with the trial by framing of charges.
83. It is, therefore, not any material that can be utilized, rather it is
that material after cognizance is taken by a court, that is available to
it while making an inquiry into or trying an offence, that the court
can utilize or take into consideration for supporting reasons to
summon any person on the basis of evidence adduced before the
Court, who may be on the basis of such material, treated to be an
accomplice in the commission of the offence. The inference that can
be drawn is that material which is not exactly evidence recorded
before the court, but is a material collected by the court, can be
utilized to corroborate evidence already recorded for the purpose of
summoning any other person, other than the accused. This would
harmonize such material with the word ‘evidence’ as material that
would be supportive in nature to facilitate the exposition of any other
accomplice whose complicity in the offence may have either been
suppressed or escaped the notice of the court.
84. The word “evidence” therefore has to be understood in its wider
sense both at the stage of trial and, as discussed earlier, even at the
stage of inquiry, as used under Section 319 Cr.P.C. The court,
therefore, should be understood to have the power to proceed against
any person after summoning him on the basis of any such material as
brought forth before it. The duty and obligation of the court becomes
more onerous to invoke such powers cautiously on such material
after evidence has been led during trial.
85. In view of the discussion made and the conclusion drawn herein
above, the answer to the aforesaid question posed is that apart from
evidence recorded during trial, any material that has been received by
the court after cognizance is taken and before the trial commences,
can be utilized only for corroboration and to support the evidence
recorded by the court to invoke the power under Section 319 Cr.P.C.
The word ‘evidence’ is thus, limited to the evidence recorded during
trial.
13. In the instant case, admittedly, the learned Magistrate
has not recorded any evidence. However, learned Magistrate
has passed the impugned order on the basis of certain
material that has been received by the court through
respondents no.2 and 3 (original accused) after cognizance is
taken and before trial commences. The Supreme Court in the
aforesaid paragraphs made observations that such material
collected by the Court can be utilized to corroborate the
evidence already recorded for the purpose of summoning any
other person other than accused and accordingly answered
the said question.
14. In view of the authoritative pronouncement of the
Hon’ble Supreme Court, the order impugned in this criminal
writ petition does not survive, however, respondents no.2 and
3 /original accused or respondent no.4 original complainant
are at liberty to file an application u/s 319 of Cr.P.C. after
recording of the evidence, if occasion, so arises, and the
learned Magistrate may consider such application and decide
it in accordance with law. Hence, following order is passed.
O R D E R
I. Criminal Writ Petition is hereby allowed in
terms of prayer clause “B”.
II. Respondents No.2 and 3 original accused
and respondent No.4 Municipal
Corporation, Dhule – original complainant
are at liberty to file an application under
section 319 of the Code of Criminal
Procedure after recording of the evidence, if
occasion so arises, and the learned
Magistrate may consider such application
and decide it in accordance with law.
3. Rule is made absolute in above terms.
4. Criminal writ petition accordingly disposed
off.
( V.K. JADHAV, J. )
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