Shah Etc. Vs. State of Gujarat & ANR.
R.M. LODHA, J.
four appeals, by special leave, are directed against the common order of the Gujarat
High Court whereby single Judge of that Court refused to interfere with the
orders (all dated July 11, 2000) of the Judicial Magistrate First Class,
Prantij directing addition of the present appellant as an accused (Accused No.
5) in various complaints.
the sake of brevity and convenience, we shall refer to the facts from the
appeal arising from complaint (Criminal Case 1no. 1132 of 1999) pending in the
Court of Judicial Magistrate First Class, Prantij. Respondent no. 2 Gulamnabi
Hebatkhan Sumara - filed a complaint against (i) M/s. Rashmi Builders, a partnership
firm, (ii) Ashwinkumar Tribhovandas Shah and (iii) Chandravadan Gopaldas
Thakkar in the Court of Judicial Magistrate, First Class, Prantij.
It was alleged in the
complaint that M/s. Rashmi Builders (Accused No. 1) is a duly registered partnership
firm and Ashwinkumar Tribhovandas Shah (Accused No. 2) and Chandravadan Gopaldas
Thakkar (Accused No. 3) are its partners. On the recommendation and advise of one
Balkabhai alias Himatlal Dwarkadas Lal, a financial broker, the complainant
lent and advanced a sum of Rs. 5 lakhs to the firm. The firm through its partner
Ashwinkumar Tribhovandas Shah acknowledged the receipt of the said amount and also
executed and delivered a promissory note for Rs. 5 lakhs on the same date.
Later in discharge of
its liability, the firm through its partner (Accused No. 2) issued a cheque for
Rs. 5 lakhs drawn on the Federal Bank of India, Fort Branch, Bombay and delivered
the same to Balkabhai alias Himatlal Dwarkadas Lal who handed over the said
cheque to the complainant along with the promissory note. The complainant presented
the said cheque for encashment on May 31, 1999 with his Banker but the same was
dishonoured on June 3, 1999 with the remark "account closed".
The complainant then sent
a statutory notice of 15 days to the firm and its two partners which was
received by them on or about June 23, 1999. The accused failed and neglected to
make payment within the statutory period and instead in its reply dated June
29, 1999, the firm denied having entered into any financial transaction with
the complainant. The complainant thus alleged that the accused have committed offence
under Section 138 of the Negotiable Instruments Act, 1881 (for short, `N.I.
Act') and under Section 420 and Section 114 of the Indian Penal Code. The other
complaints were lodged by Usmanmiya Nanumiya Ghori, Mohamad Umarkhan Akbarkhan Ghori
and Daudbhai Rasulbhai Mansuri against the above three accused on the identical
Judicial Magistrate, First Class, Prantij took cognizance in the above complaints
against the three accused, namely,
(i) M/s. Rashmi Builders
(a partnership firm),
(ii) Ashwinkumar Tribhovandas
November 4, 1999, the complainant in each of the complaints made an application
under Section 319 of the Code of Criminal Procedure, 1973 (for short, `the
Code') for joining Paresh Lakshmikant Vyas and Sarojben Ashwinkumar Shah (appellant
herein) as Accused Nos. 4 and 5 respectively. It was averred that Accused Nos.
2 and 3 have submitted a copy of the registration of the firm--M/s. Rashmi Builders
(Accused No. 1) wherein the proposed Accused No. 4 and Accused No. 5 have been
shown as the partners of the firm and in this view of the matter, it was prayed
that complainant may be permitted to join them as accused.
Judicial Magistrate First Class, Prantij, as noted above, has directed that
Paresh Lakshmikant Vyas and Sarojben Ashwin kumar Shah (appellant herein) be
joined as Accused Nos. 4 and 5 and the High Court maintained such direction.
319 of the Code reads as under : "S. 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 sub-section
(1), then (a) The proceedings in respect of such person shall be commenced
afresh, and witnesses re-heard: (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."
ambit and scope of the power of the Court under Section 319 of the Code has
come up for consideration before this Court on more than one occasion.
Joginder Singh and Another v. State of Punjab and Another1, this Court stated
that the power conferred under Section 319(1) of the Code is applicable to all
courts including a Sessions Court and the Court has power to add any person,
not being the accused before it, against whom there appears during trial
sufficient evidence indicating his involvement in the offence, as an accused
and direct him to be tried along with the other accused.
the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others,
this Court (at page 8) held as under:
In these circumstances,
therefore, if the prosecution can at any stage produce evidence which satisfies
the court that the other accused or those who have not been arrayed as accused against
whom proceedings have been quashed have also committed the offence the Court
can take cognizance against them and try them along with the other accused. But,
we would hasten to add that this is really an extraordinary power which is conferred
on the court and should be used very sparingly and only if compelling reasons
exist for taking cognizance against the other person against whom action has not
been taken. More than this we would not like to say anything further at this
stage. We leave the entire matter to the discretion of the court concerned so that
it may act according to law.
We would, however,
make it plain that the mere fact that the proceedings have been quashed against
respondents 2 to 5 will not prevent the court from exercising its discretion if
it is fully satisfied that a case for taking 1 (1979) 1 SCC 3452 (1983) 1 SCC 1
5 cognizance against them has been made out on the additional evidence led
Michael Machado and Another v. Central Bureau of Investigation and Another3, this
Court on extensive consideration of the provision contained in Section 319 stated
the (at pages 267-268) as follows : "The basic requirements for invoking the
above section is that it should appear to the court from the evidence collected
during trial or in the inquiry that some other person, who is not arraigned as
an accused in that case, has committed an offence for which that person could
be tried together with the accused already arraigned.
It is not enough that
the court entertained some doubt, from the evidence, about the involvement of another
person in the offence. In other words, the court must have reasonable satisfaction
from the evidence already collected regarding two aspects. First is that the other
person has committed an offence. Second is that for such offence that other
person could as well be tried along with the already arraigned accused.
even then, what is conferred on the court is only a discretion as could be
discerned from the words "the court may proceed against such person".
The discretionary power
so conferred should be exercised only to achieve criminal justice. It is not that
the court should turn against another person whenever it comes across evidence
connecting that other person also with the offence. A judicial exercise is
called for, keeping a conspectus of the case, including the stage at which the trial
has proceeded already and the quantum of evidence collected till then, and also
the amount of time which the court had spent for collecting such evidence. It
must be remembered that there is no compelling duty on the court to proceed
against other persons. xxx xxx xxx xxx xxx3 (2000) 3 SCC 262 6 14.
The court while deciding
whether to invoke the power under Section 319 of the Code, must address itself about
the other constraints imposed by the first limb of sub-section (4), that proceedings
in respect of newly-added persons shall be commenced afresh and the witnesses re-examined.
The whole proceedings must be recommenced from the beginning of the trial, summon
the witnesses once again and examine them and cross-examine them in order to reach
the stage where it had reached earlier. If the witnesses already examined are quite
large in number the court must seriously consider whether the objects sought to
be achieved by such exercise are worth wasting the whole labour already
undertaken. Unless the court is hopeful that there is a reasonable prospect of the
case as against the newly-brought accused ending in being convicted of the offence
concerned we would say that the court should refrain from adopting such a
course of action.
12. In Shashikant Singh
v. Tarkeshwar Singh and Another4, this Court considered the scope of Section 319
of the Code at page 743 of the Report in the following words: "9. The intention
of the provision here is that where in the course of any enquiry into, or trial
of, an offence, it appears to the court from the evidence that any person not
being the accused has committed any offence, the court may proceed against him
for the offence which he appears to have committed. At that stage, the court would
consider that such a person could be tried together with the accused who is already
before the court facing the trial.
The safeguard provided
in respect of such person is that, the proceedings right from the beginning have
mandatorily to be commenced afresh and the witnesses reheard. In short, there
has to be a de novo trial against him. The provision of de novo trial is
mandatory. It vitally affects the rights of a person so brought before the court.
It would not be sufficient to only tender the witnesses for the cross-examination
of such a person. They have to be examined afresh.
and not only their presentation for the purpose of the cross-examination of the
newly added accused is the mandate of Section 319(4). The 4 (2002) 5 SCC 738 words
"could be tried together with the accused" in Section 319(1), appear
to be only directory. "Could be" cannot under these circumstances be
held to be "must be".
The provision cannot be
interpreted to mean that since the trial in respect of a person who was before
the court has concluded with the result that the newly added person cannot be tried
together with the accused who was before the court when order under Section
319(1) was passed, the order would become ineffective and inoperative, nullifying
the opinion earlier formed by the court on the basis of the evidence before it that
the newly added person appears to have committed the offence resulting in an
order for his being brought before the court."
Krishnappa v. State of Karnataka5, this Court reiterated what has been repeatedly
stated that the power to summon an accused is an extraordinary power conferred on
the court and should be used very sparingly and only if compelling reasons exist
for taking cognizance against the other person against whom action has not been
Palanisamy Gounder and Another v. State represented by Inspector of Police6, this
Court referred to two earlier decisions of this Court in Michael Machado3 and
Krishnappa5 and observed that power under Section 319 of the Code cannot be
exercised so as to conduct a fishing inquiry.
Guriya alias Tabassum Tauquir and Others v. State of Bihar and Another7 most of
the above decisions were referred to and it was observed that the parameters for
dealing with an 5 (2004) 7 SCC 7926 (2005) 12 SCC 3277 (2007) 8 SCC 224 application
under Section 319 of the Code have been laid down in these cases.
legal position that can be culled out from the material provisions of Section 319
of the Code and the decided cases of this Court is this :
Court can exercise the power conferred on it under Section 319 of the Code suo
motu or on an application by someone.
power conferred under Section 319(1) applies to all courts including the
phrase "any person not being the accused" occurring in Section 319 does
not exclude from its operation an accused who has been released by the police under
Section 169 of the Code and has been shown in Column of the charge-sheet. In other
words, the said expression covers any person who is not being tried already by the
court and would include person or persons who have been dropped by the police during
investigation but against whom evidence showing their involvement in the offence
comes before the court.
power to proceed against any person, not being the accused before the court, must
be exercised only where there appears during inquiry or trial sufficient evidence
indicating his involvement in the offence as an accused and not otherwise. The word
`evidence' in Section 319 contemplates the evidence of witnesses given in court
in the inquiry or trial. The court cannot add persons as accused on the basis
of materials available in the charge- sheet or the case diary but must be based
on the evidence adduced before it. In other words, the court must be satisfied
that a case for addition of persons as accused, not being the accused before it,
has been made out on the additional evidence let in before it.
power conferred upon the court is although discretionary but is not to be
exercised in a routine manner. In a sense, it is an extraordinary power which should
be used very sparingly and only if evidence has come on record which sufficiently
establishes that the other person has committed an offence. A mere doubt about 9
involvement of the other person on the basis of the evidence let in before the court
is not enough. The Court must also be satisfied that circumstances justify and warrant
that other person be tried with the already arraigned accused.
court while exercising its power under Section 319 of the Code must keep in view
full conspectus of the case including the stage at which the trial has
proceeded already and the quantum of evidence collected till then.
must also be had by the court to the constraints imposed in Section 319 (4)
that proceedings in respect of newly - added persons shall be commenced afresh from
the beginning of the trial.
court must, therefore, appropriately consider the above aspects and then
exercise its judicial discretion.
if the order of the High Court is seen, it would transpire that after noticing the
provisions contained in Section 319 and its scope, the High Court proceeded to
hold that the order of the Magistrate did not call for any interference. The
High Court, however, failed to consider whether Magistrate has addressed to the
essential aspects before invoking his power under Section 319 of the Code.
Moreover, the High Court
did not advert to the question whether or not filing of copy of registration of
the firm by Accused Nos. 2 and 3 would be covered by expressions `in the course
of any inquiry into or trial' and `evidence' occurring in Section 319 of the
Code and also the aspect as to whether such document could be treated as an evidence
to show that the appellant (newly added accused) has committed an offence of
cheating under Section 420 IPC. As regards the criminal liability of a partner
in the firm, in light of the provisions contained in Section 141 of the N.I.
Act, there has to be evidence that at the time the offence was committed, the partner
was in-charge of and was responsible to the firm for the conduct of the
business of the firm.
A perusal of the
impugned order would show that all these relevant aspects have not been
considered by the High Court at all and the petitions under Section 482 of the Code
were dismissed. As, in our view, the matter needs to be considered by the High Court
afresh, we refrain from dealing with the orders of the Magistrate on merit lest
it may prejudice the consideration of the petitions under Section 482 of the
Code before the High Court.
these appeals are allowed and the impugned order dated May 5, 2010 is set aside.
Criminal Miscellaneous Application Nos. 5157 of 2000, 5158 of 2000, 5159 of
2000 and 5160 of 2000 are restored to the original number for hearing and
reconsideration by the High Court in accordance with law.