1. The petitioners in both these petitions are challenging the legality and correctness of the order dated 7.9.2016 passed by the learned III Additional Sessions and Special Judge, Mysuru, in Special Case No.13/2013, taking cognizance of offences punishable under Section 12 of the Prevention of Corruption Act ( for short ''P.C.Act'' ) and Section 109 of Indian Penal Code (for short ''IPC'') r/w Section 7 & Section 13(1) (d) r/w Section 13(2) of P.C. Act and issuing process against them.
2. Heard Shri B.V. Acharya, learned Senior Counsel for the petitioner in Crl.RP.No.313/2017; Shri C.H. Jadhav, learned Senior Counsel for the petitioner in Crl.RP.No.1206/2016, Shri Venkatesh S. Arbatti, learned Counsel for respondent No.1 and Shri R.Somasundara, learned Counsel for respondent No.2 in both cases.
3. Brief facts of the case:
One Basavaraj (C.W.1) got registered an F.I.R. on
25.3.2010 with Lokayuktha Police alleging that a Senior
Geologist namely V.J.Alphonsus, was demanding a sum of
Rs.1,00,000/- as illegal gratification to issue permits to
transport sand on the pretext that the said money had to
be paid to one Sunil Bose, son of the local M.L.A.
(petitioner in Crl.R.P.No.313/2017). Lokayuktha Police
registered an FIR in Crime No.8/2010 and conducted a
successful trap. After investigation, charge sheet was filed
only against V.J.Alphonsus. Learned Special Judge took
cognizance of the offence and the trial is in progress. The
complainant also sought to assist the prosecution by filing
an application under Section 301(2) Cr.P.C.
4. The complainant, Basavaraju moved an application
under Section 190(1)(b) of Cr.P.C. before the trial Court
with a prayer to ''take cognizance of the offences against
petitioners'' in these two criminal petitions. The said
applications were opposed by filing a common statement
of objections. After hearing, the learned trial Judge
allowed the application and recorded having taken
cognizance of the offence punishable under Section 12 of
the P.C.Act and Section 109 of IPC read with Section 13(2)
of the P.C.Act and issued process against the petitioners
herein. Feeling aggrieved by the said order, petitioners
have filed these petitions.
5. Both learned Senior Counsel for the petitioners strongly contended that dates and events are very relevant and pointed out that the charge sheet was filed on 3.1.2013; learned Trial Judge took cognizance of the offences on 22.1.2013; and charges were framed by the Court against V.J.Alphonsus on 16.8.2013.
6. Adverting to the above dates and events, learned Senior Counsel submitted that the complainant, after a long lapse of time, got filed the instant application on 25.2.2015 under Section 190(1)(b) Cr.P.C. They contended that the trial is said to have commenced once the charges are framed by the Court and in the instant case, it is 16.8.2013. If any new person is to be arraigned as an accused, the same could be done only by resorting to Section 319 Cr.P.C. They further contended that though charges were framed by the Trial Court on 16.8.2013, recording of evidence of witnesses had not commenced as on the date of filing of the instant application. Therefore, there was nothing on record for the learned Trial Judge to examine the complicity of petitioners herein.
7. Learned Senior Counsel further contended that once a charge sheet is filed by the police, the Trial Judge is required to take cognizance of offences under Section 190(1)(b) Cr.P.C. At that stage, based on the material on record, if the Trial Judge comes to a conclusion that the police have falsely implicated any person in the crime, he can choose not to frame charges against such person. Similarly, if it appears that the police have deliberately excluded any person, the Trial Judge can issue process against such person if it appears from the evidence recorded in the course of any inquiry or trial that such person has committed any offence for which he could be tried together. Once the stage of taking cognizance under Section 190(1)(b) is complete and charges are framed against one or more accused, a Trial Judge cannot proceed against any other person who is not an accused, unless the conditions prescribed in Section 319 Cr.P.C, are satisfied. In support of this contention, they placed reliance on an authority of the Hon''ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others reported in (2014) 3 SCC 92.
8. Learned Senior Counsel further contended that the application filed by the complainant under Section 190(1)(b) is wholly misconceived as the prosecution is required to be conducted only by the public prosecutor. Having filed an application under Section 301 Cr.P.C, any advocate instructed by a complainant/private person, can, at best, with the leave of the Court submit written arguments after recording of evidence is closed. They argued that the application filed by the complainant was not maintainable as held by the Hon''ble Supreme Court in the case of Shiv Kumar vs. Hukam Chand and another reported in (1999) 7 SCC 467.
9. With the above submissions, learned Senior Counsel prayed that these petitions be allowed and the impugned order be set aside.
10. Shri Venkatesh S.Arbatti, learned Counsel appearing for the respondent-Lokayuktha vehemently contended that it is the duty of the Court to find out the real offender and if it comes to the conclusion that the police had deliberately excluded certain persons, the Court may summon such person at any time. The word ''inquiry'' used in Section 319 Cr.P.C, is vide enough to encompass within itself all stages during the trial. Complainant being a prime witness, has dutifully brought to the notice of the Trial Court, the complicity of petitioners in the crime.
Refuting petitioners'' argument that a complainant
cannot maintain an application, he submitted that even a
co-accused can maintain an application. He placed
reliance on the following authorities of the Hon''ble
Supreme Court:
a) AIR 1967 SC 1167 (Raghubans Dubey vs. State of Bihar);
b) AIR 2001 SC 2747 (M/s SWIL Ltd. vs. State of Delhi
and another); and
c) (2015) 1 SCC 48 (R.N.Agarwal vs. R.C.Bansal and
others)
11. Shri S.Somasundara, learned Counsel for the
applicant, supporting the impugned order submitted that
the complainant having filed an application under Section
301 Cr.P.C. was desirous of assisting the Trial Court.
Therefore, he filed the instant application. As no evidence
was recorded as on the date of filing of the complaint, it
was open for the Trial Court to examine if the petitioners
were deliberately excluded by the police. Having carefully
considered the material on record, the trial Court has
allowed the application with cogent reasons and hence the
impugned order does not require any interference. With
these submissions, learned Counsel for the respondent-
Lokayukta and the complainant prayed for dismissal of
these petitions.
12. I have carefully considered the submissions made by the learned Counsel for the parties and perused material papers.
13. These two petitions raise a common question with regard to the power of Court to summon a person, who is not charge sheeted by the police to stand a trial.
14. Admittedly, based on the final report filed by the Lokayukta police, learned Trial Judge framed charges against V.J.Alphonsus on 16.8.2013. Complainant has filed the instant application under Section 190(1)(b) of Cr.P.C. on 25.2.2015. As on the said date, recording of evidence of witnesses had not begun. The learned Trial Judge has taken cognizance and issued process against the petitioners based on the said application.
15. Section 190(1)(b) Cr.P.C. reads as follows:
"190. Cognizance of offences by Magistrate.-
(1) Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2), may
take cognizance of any offence -
a) upon receiving a complaint of facts which constitute such
offence;
b) upon a police report of such facts;
c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
has been committed."
16. An offence punishable under the P.C.Act is triable
by a Special Judge as provided by Section 3 in Chapter II
of the P.C. Act. A Special Judge shall be a Sessions Judge
or an Additional Sessions Judge or an Assistant Sessions
Judge. Section 5 of the P.C.Act provides that the Special
Judge shall follow the procedure prescribed by the Cr.P.C,
for a trial of warrant cases by the Magistrates. Therefore,
once cognizance of offence is taken by the Special Judge
under Section 190(1)(b), he is required to follow the
procedure prescribed in Chapter XIX of Cr.P.C. Charges
are framed under Section 240. If the accused does not
plead guilty, evidence shall be recorded under Section
242. If the evidence disclosed complicity of ''some other
person or persons'' in the crime, the Trial Court could
exercise its power under Section 319.
17. In the case of Hardeep Singh relied upon by the learned Senior Counsel for the petitioners, the Constitution Bench of the Hon''ble Supreme Court has held as follows:
"75. A similar view has been reiterated by this Court in
Rajendra Singh v. State of U.P., observing that the court should not
exercise the power under Section 319 CrPC on the basis of
materials available in the charge-sheet or the case diary, because
such materials contained in the charge-sheet or the case diary, do
not constitute evidence. The word "evidence" in Section 319 CrPC
contemplates the evidence of the witnesses given in the court.
76. Ordinarily, it is only after the charges are framed that
the stage of recording of evidence is reached. A bare perusal of
Section 227 CrPC would show that the legislature has used the
terms "record of the case" and the "documents submitted
therewith". It is in this context that the word "evidence" as
appearing in Section 319 CrPC has to be read and understood. The
material collected at the stage of investigation can at best be used
for a limited purpose as provided under Section 157 of the Evidence
Act i.e. to corroborate or contradict the statements of the witnesses
recorded before the court. Therefore, for the exercise of power
under Section 319 CrPC, the use of word "evidence" means
material that has come before the court during an inquiry or trial
by it and not otherwise. If from the evidence led in the trial the
court is of the opinion that a person not accused before it has also
committed the offence, it may summon such person under Section
319 CrPC.
X X X
105. Power under Section 319 CrPC is a discretionary and an
extraordinary power. It is to be exercised sparingly and only in
those cases where the circumstances of the case so warrant. It is
not to be exercised because the Magistrate or the Sessions Judge is
of the opinion that some other person may also be guilty of
committing that offence. Only where strong and cogent evidence
occurs against a person from the evidence led before the court that
such power should be exercised and not in a casual and cavalier
manner."
(Emphasis supplied)
18. It is relevant to note that the application filed by
the complainant was to take cognizance ''against'' the
petitioners. The learned Trial Judge takes cognizance of an
offence and not qua an accused. Admittedly, learned Trial
Judge had already taken cognizance of offences and
framed charges against V.J.Alphonsus. Hence, the
impugned order, whereunder, the learned Trial Judge
has taken cognizance under Section 190(1)(b) Cr.P.C.
for the second time after framing of charges, is
impermissible in law and therefore unsustainable.
19. So far as maintainability of application by the complainant is concerned, in the light of the authority in the case of R.N.Agarwal, relied upon by the learned Counsel for the Lokayukta, it is to be held that the instant application was maintainable at the instance of the complainant.
20. In the circumstances, in my considered view, these two petitions merit consideration and deserve to be allowed.
21. Resultantly, these revision petitions are allowed. The order dated 7.9.2016, passed by the III Addl. Sessions and Special Judge at Mysuru, in Special Case No.13/2013 is set aside.
