Bholu Ram vs State Of Punjab & Anr

1997 and confirmed by the High Court of Punjab 2

& Haryana on November 26, 2006 in Criminal

Revision Nos. 401 and 402 of 1998.

3. To appreciate the issues raised in the

present appeal, few relevant facts may be

stated.

4. On August 21, 1986, First Information

Report (FIR) No. 87 was lodged against the

appellant for commission of offences punishable

under Sections 409, 420, 467, 468 and 471 of

the Indian Penal Code (IPC). The allegation in

the FIR was that the appellant was a Clerk in

Government High School, Rurke Kalan. He had

forged signature of Sher Singh-respondent No. 2

herein who was the Head Master-cum-Drawing and

Disbursing Officer and embezzled substantial

amount of more than Rs. one lakh between 1979

and 1986. As stated in the FIR, the said fact

came to light when audit was carried out and

report was submitted. Hence, the complaint.

5. According to the appellant, during the

course of investigation, signatures of

respondent No. 2 were also taken and were sent 3

for examination but the report on the said

examination was never filed by the prosecution

in the proceedings. It was only in the course

of recording of prosecution evidence that

certain witnesses deposed against respondent

No. 2 alleging that it was respondent No. 2 who

had withdrawn the amount and signatures

purported to have been forged by the appellant

really tallied with the specimen signatures of

respondent No. 2. In view of the said fact, the

appellant on February 05, 1994 and on January

06, 1996, filed applications under Section 319

of the Code of Criminal Procedure, 1973

(hereinafter referred to as `the Code') in the

Court of Judicial Magistrate praying therein to

add respondent No. 2 as an accused and summon

him being Head Master-cum-Drawing and

Disbursing Officer who had prepared false and

forged bills, misappropriated the amount and

committed fraud on the Government.

6. The learned Magistrate, after

considering the evidence on record, held that 4

prima facie case had been made out against

respondent No. 2 and that he should also be

joined as accused. The learned Magistrate

allowed the applications of the appellant and

issued summons to respondent No. 2 by joining

him as accused.

7. Though the order was passed on January

22, 1996, it was not challenged by respondent

No. 2. The order, however, was challenged by

the State by filing a Revision Petition in the

Court of Additional Sessions Judge, Barnala.

The learned Judge vide an order dated May 06,

1996, dismissed the petition filed by

respondent No. 1-State.

8. After a gap of more than eight months

from the order passed by the learned Magistrate

summoning respondent No. 2, he filed an

application on September 25, 1996 to

review/recall summoning order dated January 22,

1996. He also contended in a separate petition

that he could not be prosecuted in absence of

sanction as required by Section 197 of the 5

Code. The learned Magistrate by an order dated

March 12, 1997 dismissed the application of

respondent No. 2 holding it to be not

maintainable in view of dismissal of revision

of the State by the Additional Sessions Judge.

9. Being aggrieved by the order passed by

the Judicial Magistrate, respondent No. 2 filed

two Revision Petitions before the learned

Additional Sessions Judge. The learned Judge

allowed the revisions of respondent No. 2 and

set aside the order dated January 22, 1996

passed by the Judicial Magistrate adding

respondent No. 2 as an accused and summoning

him. The said order was passed on March 5,

1998.

10. The appellant challenged both the

orders by approaching the High Court by

instituting two revision petitions. The High

Court, however, dismissed both the revisions

and confirmed the order passed by the learned

Additional Sessions Judge. The said order is

challenged in the present appeal. 6

11. On January 19, 2007, notice was issued

by this Court. On February 15, 2007, further

proceedings were stayed. Considering the

controversy and issues involved, the Registry

was directed to place the matter for final

hearing. Accordingly, the matter was placed

before us.

12. We have heard the learned counsel for

the parties.

13. The learned counsel for the appellant

contended that once an order was passed and

summons was issued by the Judicial Magistrate,

he had no power, authority or jurisdiction to

review the said order or recall the summons.

On that ground alone, the orders passed by the

courts below are liable to be set aside. It

was also submitted that the order passed by the

Judicial Magistrate adding respondent No. 2 and

summoning him was in consonance with Section

319 of the Code and should not have been

interfered with. It was urged that such an

order could be passed on an application of any 7

party including the accused and the matter

ought to have been decided on merits and the

said order could not have been disturbed by the

revisional Court. It was further submitted that

the Courts below were wrong in invoking Section

197 of the Code and in holding that sanction

was necessary.

14. It was submitted that even on merits,

the orders passed by the Judicial Magistrate

was in consonance with law and called for no

interference. It was, therefore, prayed that

the order passed by the Additional Sessions

Judge and confirmed by the High Court may be

set aside and the order passed by the Judicial

Magistrate be restored.

15. The learned counsel for the contesting

respondent No. 2, on the other hand, supported

the order passed by the Courts below. It was

submitted that the Additional Sessions Judge

was satisfied that the order passed by the

Judicial Magistrate was not in consonance with

law and it could be recalled. Such order was 8

not an order of review, but recalling of

earlier order which was not found legal or

lawful. It was also submitted that FIR was

lodged as early as in 1986 and applications for

adding respondent No. 2 as an accused were made

by the appellant-accused in the year 1994 and

1996, i.e. after about 8 to 10 years. Such

applications, therefore, could not have been

entertained by the Court. Again, the respondent

No. 2 was admittedly Head Master-cum-Drawing

and Disbursing Officer and no prosecution could

be launched against him without sanction from

the Government as envisaged by Section 197 of

the Code. Since no such sanction was obtained,

no prosecution could be launched against him.

16. The counsel also submitted that no

application under Section 319 could be filed by

an accused and since the appellant herein was

the accused, applications by him were not

maintainable. The counsel urged that when the

Additional Sessions Judge allowed the revisions

filed by respondent No. 2 and the said order 9

was confirmed by the High Court, this Court may

not interfere with it in exercise of

discretionary jurisdiction under Article 136 of

the Constitution. It was, therefore, submitted

that the appeal may be dismissed.

17. The learned Government pleader

appearing for respondent No. 1 adopted the

arguments of learned counsel for respondent No.

2 and submitted that the appeal deserves to be

dismissed.

18. Having heard the learned counsel for

the parties and in the light of the relevant

provisions of law as also judicial

pronouncements to which our attention has been

invited by the learned counsel for the parties,

in our opinion, the appeal deserves to be

allowed.

19. Section 319 of the Code empowers a

Court to proceed against any person not shown

to be an accused if it appears from the

evidence that such person has also committed an 10

offence for which he can be tried together with

the accused.

20. Section 319 of the Code reads thus;

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 had 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 detailed 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 11

the Court took cognizance of the offence upon which the inquiry or trial was commenced.

21. Sometimes a Magistrate while hearing a

case against one or more accused finds from the

evidence that some person other than the

accused before him is also involved in that

very offence. It is only proper that a

Magistrate should have power to summon by

joining such person as an accused in the case.

The primary object underlying Section 319 is

that the whole case against all the accused

should be tried and disposed of not only

expeditiously but also simultaneously. Justice

and convenience both require that cognizance

against the newly added accused should be taken

in the same case and in the same manner as

against the original accused. The power must be

regarded and conceded as incidental and

ancillary to the main power to take cognizance

as part of normal process in the administration

of criminal justice.

12

22. It is also settled law that power

under Section 319 can be exercised either on an

application made to the Court or by the Court

suo motu. It is in the discretion of the Court

to take an action under the said section and

the Court is expected to exercise the

discretion judicially and judiciously having

regard to the facts and circumstances of each

case.

23. In the instant case, an FIR was lodged

against the appellant in August, 1986. But it

was during the course of trial that it came to

light that signatures of respondent No. 2 were

also taken and were sent for examination and a

report was received showing that the signatures

on the basis of which amount was withdrawn

tallied with the signatures of respondent No.

2. The said report, however, was not filed by

the prosecution. It was in these circumstances

that the appellant made applications in 1994

and in 1996 under Section 319 of the Code 13

requesting the learned Magistrate to join

respondent No. 2 as accused and to summon him.

24. The contention of the learned counsel

for respondent No. 2 is that the power under

Section 319 of the Code, cannot be exercised

belatedly by the Court. Again, such order can

be made only on the application by the Public

Prosecutor or by some person other than the

accused. In other words, an application under

Section 319 cannot be filed by a person who is

facing the trial.

25. We are unable to uphold the

contentions. We have quoted Section 319 of the

Code. It nowhere states that such an

application can be filed by a person other than

the accused. It also does not prescribe any

time limit within which such application should

be filed in the Court.

26. Let us consider few leading decisions

of this Court on interpretation and application

of the said provision.

14

27. Before three decades, in Joginder

Singh & Anr. v. State of Punjab & Anr., (1979)

1 SCC 345, a case was registered against

Joginder Singh, Ram Singh, Bhan Singh, Darshan

Singh and Ranjit Singh for committing various

offences punishable under the Indian Penal

Code. During the investigation, the police

found Joginder Singh and Ram Singh (appellants

before this Court) to be innocent and, hence, a

charge-sheet was submitted against the

remaining accused only. The learned Magistrate

after holding preliminary inquiry, committed

three accused to the Sessions Court for trial.

28. During trial, evidence of some of the

witnesses was recorded who implicated the

appellants. A Public Prosecutor, therefore,

moved an application to summon the appellants

and to try them along with other accused. The

application was granted by the Sessions Court.

The said order was challenged by the

appellants.

15

29. It was, inter alia, contended on

behalf of the appellants that Section 319 of

the Code was not attracted inasmuch as the

phrase "any person not being the accused"

occurring therein excluded from its operation

an accused who had been released by the police

under Section 169 of the Code and against whom

no sufficient material was found by the police

during investigation.

30. This Court considered the relevant

provisions of the Code of Criminal Procedure,

1898 (old Code), Forty-first Report of the Law

Commission, the amendment made in the present

Code and held that the Court could add any

person, not an accused before it, as an accused

and direct him to be tried along with the other

accused for the offence or offences the added

accused appears to have committed.

31. The Court, after considering the

scheme of the provision, observed;

"A plain reading of Section 319 (1), which occurs in Chapter XXIV dealing with general provisions as to 16

inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but 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,..."

32. Interpreting the expression "any

person not being the accused", the Court

stated;

"As regards the contention that the phrase "any person not being the accused" occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression". (emphasis supplied) (See also Rakesh v. State of Haryana, (2001) 6 SCC 248 17

33. In Municipal Corporation of Delhi v.

Ram Kishan Rohtagi & Ors., (1983) 1 SCC 1, the

Food Inspector, noticing adulteration in

`Morton Toffees', filed a complaint against the

Company, its Managing Director as well as

Directors under the Prevention of Food

Adulteration Act, 1954. The Managing Director

and Directors approached the High Court by

invoking Section 482 of the Code for quashing

of proceedings which was granted and the

proceedings against them were quashed. The

question before this Court was whether Section

319 of the Code could be invoked once criminal

proceedings against a person were quashed.

34. Replying the question in the

affirmative and quoting with approval

observations in Joginder Singh, this Court

said;

"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 18

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 respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it".

(emphasis supplied)

35. In Lok Ram v. Nihal Singh & Anr.,

(2006) 10 SCC 192, again, a similar question

came up before this Court. In Lok Ram, one

Saroj Kumari was killed by her in-laws. A

complaint was filed by the father of the

deceased against the husband, brother in law

and father in law of Saroj Kumari that all of

them killed the deceased. Police registered a 19

case against the said persons for offences

punishable under Sections 304-B, 498-A read

with Section 34, IPC. The case of Lok Ram was

that he was serving in a school and at the time

of incident, he was not present. No charge-

sheet was, therefore, filed against him.

36. During the trial, however, depositions

of witnesses were recorded which revealed that

Saroj Kumari was killed by her husband. Her

brother in law and father in law (Lok Ram)

poured kerosene oil on her and she was set on

fire. Father of the deceased, hence, made an

application under Section 319 of the Code to

add Lok Ram as accused which was rejected by

the trial Court. Meanwhile, the trial proceeded

further against the other accused and they were

convicted. The High Court directed the trial

Court to proceed against Lok Ram. The said

order was challenged by Lok Ram in this Court.

37. Dismissing the appeal, referring to

earlier decisions of this Court on the point 20

and explaining the scope of Section 319 of the

Code, the Court stated;

"On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not 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".

38. Construing the provision liberally,

the Court proceeded to state;

"Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that 21

any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word `evidence' in Section 319 contemplates that evidence of witnesses given in Court. Under sub- section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned". (emphasis supplied)

39. In Shashikant Singh v. Tarkeshwar

Singh & Anr., (2002) 5 SCC 738, during the

pendency of trial of an accused, another person

was summoned by the trial Court under Section

319 of the Code. But by the time he could be 22

brought before the Court, the trial against the

accused was over. The question was whether such

a person could be summoned and tried for the

offence for which he was summoned. This Court

held that the words "should be tried together

with the accused" were merely directory and

such a person could be tried even after

conclusion of trial of the main accused.

The Court stated;

"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 the stage, the Court would consider that such a person could be fried 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 mandatory to be commenced afresh and the witnesses re-heard. 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 23

witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief 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 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 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".

40. In our opinion, therefore, the learned

Magistrate had power and jurisdiction to

entertain applications filed by the appellant-

accused under Section 319 of the Code and to

issue summons to respondent No. 2 by adding him

as accused. The said order could not be said to 24

be illegal, unlawful or otherwise

objectionable.

41. The next question is whether an order

passed by a Court could be recalled? Before

the Courts below as also before us, the learned

counsel for respondent No. 2 urged that an

order passed by a Magistrate could be recalled.

42. In support of the submission, reliance

was placed by the counsel on a two-Judge Bench

decision of this Court in K.M. Mathew v. State

of Kerala & Anr., (1992) 1 SCC 217. In that

case, the appellant was the Editor-in-Chief of

a daily newspaper. A complaint was filed

against him and others alleging commission of

offence punishable under Section 500 read with

Section 34, IPC. The Magistrate examined the

complainant on oath and issued summons to the

accused. The Chief Editor appeared before the

Court and prayed for dropping of proceedings

against him by recalling the order on the

ground that there was no allegation as to how

he was responsible for publication of news item 25

alleged to have caused defamation of the

complainant. The Magistrate accepted the plea

and dropped the proceedings so far as Chief

Editor was concerned. The complainant

challenged the said order by filing a revision

in the High Court which was allowed. The Chief

Editor questioned correctness of the order

passed by the High Court.

43. The issue before this Court was

whether the Magistrate had power to recall an

order of summoning the accused. Considering

the relevant provisions of the Code, the Court

held that an order of summoning an accused

could be recalled by the Magistrate. Such order

is merely an interim order and not a judgment

and recalling thereof would not amount to

review.

44. The Court stated;

"It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the 26

accused could be tried. It is his judicial discretion. No specific provision required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused". (emphasis supplied)

45. The correctness of K.M. Mathew again

came up for consideration before a three-Judge

Bench of this Court in Adalat Prasad v.

Rooplal Jindal & Ors., (2004) 7 SCC 338. In

Adalat Prasad, the accused, after issuance of

summons against him by the trial Magistrate,

filed an application under Section 203 of the

Code for dismissal of complaint recalling the

order of summons. After hearing the parties,

the Magistrate granted the prayer and recalled

the summons. The order of the Magistrate was

challenged by the complainant in the High Court

inter alia on the ground that the Magistrate

had no jurisdiction to recall the earlier 27

order. The High Court allowed the petition.

The accused approached this Court.

46. When the matter was placed for

preliminary hearing, the learned counsel for

the accused relied on K.M. Mathew wherein it

was held that it was open to the Court issuing

summons to recall the order on being satisfied

that the issuance of summons was not in

accordance with law. The Court, however,

doubted the correctness of the view taken in

K.M. Mathew in view of reference made by a two

Judge Bench to a three Judge Bench in Nilamani

Routray v. Bennett Coleman & Co. Ltd., (1998) 8

SCC 594.

47. The larger Bench considered various

provisions of the Code and held that in absence

of express provision in the Code, the Court has

no power to recall the process issued. The

larger Bench, therefore, concluded that K.M.

Mathew was not correctly decided and overruled

it.

48. The Court concluded;

28

"But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew's case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under section 203 of the 29

Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage". (emphasis supplied)

49. Dealing with the contention that an

aggrieved party must have a remedy if a

Magistrate takes cognizance of an offence

without there being any allegation against the

accused, the Court stated;

"It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code".

(emphasis supplied)

50. The law laid down in Adalat Prasad was

followed and reiterated by this Court in 30

subsequent cases also [see Subramaniam

Sethuraman v. State of Maharashtra, (2004) 13

SCC 324; N.K. Sharma v. Abhimanya, (2005) 13

SCC 213; Everest Advertisement v. State

Government of NCT of Delhi, (2007) 5 SCC

54].

51. From the above discussion, it

is clear and well settled that once an

order is passed by a competent Court

issuing summons or process, it cannot be

recalled.

52. In the instant case, the

learned Magistrate ordered to join

respondent No. 2 as an accused on

applications filed by the appellant and

summons was issued to him. A revision filed

by the State against that order was

dismissed by the Additional Sessions Judge.

The Judicial Magistrate, on the facts and

in the circumstances, was right in 31

dismissing recall application filed by

respondent No. 2.

53. The revisional Court, however,

held that the Magistrate had power to

recall the earlier order passed by him.

For coming to that conclusion, the Court

relied upon K.M. Mathew. The learned

Additional Sessions Judge ought to have

considered the material fact in its proper

perspective that the order passed by the

learned Magistrate was legal and proper and

because of that, the revision filed against

that order by the State was also dismissed

by the revisional Court.

54. It was, however, contended on

behalf of respondent No.2 that even if this

Court holds that the Judicial Magistrate

had no power to recall its earlier order

and dismissal of the application by the

learned Magistrate was legal and proper, 32

and that a revision petition filed by the

State against the said order was dismissed

by the Additional Sessions Judge, the Court

may consider an important fact that the

respondent No. 2, who was really an

`aggrieved party' had preferred two

revisions in the Court of Sessions. Hence,

even if it is assumed that the trial Court

did not possess the power of recalling its

order, it would not preclude the revisional

Court from exercising revisional

jurisdiction and quashing and setting aside

an order passed by a subordinate Court if

it was not in accordance with law.

55. Even that ground does not impress us.

It is quite possible that in a given case, a

Magistrate may take cognizance of an offence

illegally or arbitrarily without there being

any material whatsoever. Such illegal order

should not deprive the accused from contending 33

that the learned Magistrate was wrong and

wholly unjustified in entertaining the

complaint or taking cognizance of an offence.

In such cases, however, the accused is not

without legal remedy. If the act of taking

cognizance, issuance of process or joining of

an innocent person as an accused is totally

uncalled for or ex facie bad in law, it is open

to the aggrieved party to invoke inherent

jurisdiction of the High Court under Section

482 of the Code. If the High Court is satisfied

that the order passed by the Magistrate was

illegal, improper or arbitrary, it can exercise

inherent powers and quash criminal proceedings

initiated against the party. But that power is

independent and has nothing to do with

recalling of an earlier order by the Court

which passed it.

56. But in the present case, even on

merits, we are of the considered view that the

order passed by the learned Magistrate issuing 34

summons to respondent No.2 could not be said to

be unlawful or even improper.

57. When applications under Section 319 of

the Code were preferred by the appellant

praying to join respondent No.2 as an accused

and to issue summons, the learned Magistrate

considered the evidence of prosecution

witnesses and he was satisfied that depositions

of witnesses prima facie made out offence

against respondent No.2.

58. Considering the statements of PW2-

Treasury Officer, PW14-Senior Assistant and

PW11-Assistant Manager, State Bank of Patiala,

the learned Magistrate stated;

"I have heard the learned counsel for the accused and the Ld. APP for the State and have also gone through the file of this case carefully and it appears that Sher Singh who appeared as a prosecution witness in this case was working as a Drawing & Disbursing Officer and Ex. DX audit report discloses that as per Rule 2.2 (II) of Punjab Financial Rules Volume-I, all transactions should be entered in the cash book as soon as they occur and attested by the head of the office in token of check, 35

further Rule 2.31(a) provides that with a view to enable the head of the office to see that all amounts drawn from the treasury have been entered in the cash book; he should obtain a list of all bills drawn by him during the previous month and trace all the amounts in the cash book. It was held that embezzlement pointed by the Audit was facilitated due to non-

observance of procedure regarding the review of the bill book/bill transit register and reconciliation of the withdrawals form the treasury.

Moreover, the evidence led by the prosecution also makes it clear that there is prima-facie evidence against Sher Singh, Head Master as PW2 Satpal Mehta, Treasury Officer has deposed in his cross-examination that amounts from the accounts were withdrawn through Headmaster Rureke Kalan and in their register signatures of Headmaster have been entered and his name is Sher Singh and they have passed the bills after comparing the signatures on the Bills with the specimen signatures of Sher Singh as the same are in their record.

Similarly, PW14 Prem Sagar, Senior Assistnat in Treasury Office has deposed that Drawing & Disbursing Officer/Authority was Head Master of Rureke Kalan High School and his name was Sher Singh and on the bills signatures of Sher Singh are present which tally with the specimen signatures. Similarly, Prem Chand, Assistant Manager of State Bank of Patiala, PW11 has deposed in his cross-examination that DDO of High School, Rure Ke Kalan is Head Master and the amounts are withdrawn after 36

comparison of specimen signatures with the signatures on the bills of DDO. So, from the evidence on record, it is quite clear that prima facie offence against Head Master Sher Singh is made out whose signatures were with the treasury office and the Treasury Officers have passed the bills after comparing the specimen signatures with the signatures on the bills and there is no evidence on the record to show that the bills which are subject matter of embezzlement, do not bear the signatures of Sher Singh who was DDO of Rureke Kalan High School, so, there is prima facie offence made out to summon Sher Singh, Head Master of Rureke Kalan High School as accused u/s 319 of Cr.P.C. is hereby allowed and Sher Singh, Head Master of Government High School of Rure Ke Kalan is ordered to be summoning as an accused in this case for 1.3.1996. The application of the accused is hereby allowed and is disposed of accordingly".

59. We may recall at this stage that a

revision filed by the State (and not by

respondent No.2) against the order of the

Magistrate was dismissed by the Assistant

Sessions Judge on May 6, 1996.

60. The Revisional Court also considered

the deposition of aforesaid witnesses and said; 37

"After going through the impugned order, I find that it was found by trial Magistrate that certain bills have been passed by Sher Singh who was disbursing officer, and PW 14 Prem Sagar, Assistant in the office of Treasury deposed that drawing disbursing officer was Headmaster of Rureke Kalan High School and his name was Sher Singh who was appended his signatures on the bills which tally with the specimen signatures. A similar statement was suffered by Assistant Manager of State Bank of Patiala examined as PW11 before Trial Magistrate and on account of this evidence read with the statement of PW2 Sat Pal Mehta, Treasury Officer the trial Magistrate found that prima facie offence is made out to summon Sher Singh as an accused and accordingly he allowed the application. In view of this, we find that the Court has exercised his discretion supported by well reasoned order and the opinion was formed by the Court after recording evidence and in such like cases some times the real offender who has also committed the crime steps into the shoes of complainant in order to save himself and in the instant case also the evidence spells out that the head master of the school thought of a clever device by registering the case against other accused at his instance".

38 61. It was after the dismissal of revision

filed by the State that respondent No.2 moved

the Judicial Magistrate to recall the earlier

order. The learned Magistrate held that in view

of dismissal of revision by the Additional

Sessions Judge, an application to recall the

order was not maintainable. But the Court also

stated;

"No doubt summoning order is on interim order and not a judgment and the same can be reviewed or recalled by the Magistrate. Proceedings against the accused can be dropped of the complaint on face of it does not disclose any offence against him. In the present case, my learned predecessor after going through the statements of examined prosecution witnesses found that there is prima facie offence made out against the accused Sher Singh. Only thereafter accused/applicant She Singh was summoned vide summoning order dated 22.1.1996 passed by Sh. Varinder Aggarwal, PCS, the then Judicial Magistrate, 1st Class, Barnala".

62. The Revisional court referred to K.K.

Mathew and held that a summoning order, being

interlocutory in nature, could not be termed as 39

`judgment' and there was no bar in recalling

such order. The Assistant Sessions Judge

decided the revision in 1998. The law governing

the field at that time was the law laid down in

K.K. Mathew. Adalat Prasad had not seen the

light of the day. We, therefore, see nothing

wrong on the part of the Assistant Sessions

Judge in considering, following and deciding

the case on the basis of K.K. Mathew.

63. To us, however, the Revisional Court

was not right in interfering with the order

passed by the trial Court. We have seen that

the learned Magistrate issued summons taking

into account evidence led by the prosecution,

particularly, by PWs 2, 14 and 11. The

Revisional Court was thus having depositions of

those witnesses, the order passed by the

learned Magistrate, the order made by the

Assistant Sessions Judge in revision instituted

by the State and also the order passed by the

Magistrate in an application to recall filed by

respondent No.2.

40

64. In spite of the above material, the

Revisional Court interfered with the order of

the trial Court issuing summons by entering

into merits of the case.

65. The Court said;

"As stated above, as per prosecution case during the period from 1979 to 1986 accused Bholu Ram was the Clerk of Govt. High School, Rureke Kalan while Sher Singh revision/petitioner appeared to be the Head Master of the School during the relevant period. It appears that during that period accused Bholu Ram had been drawing various payments from the Treasury by submitting false and bogus Mills to the Treasury, but did not appear to have disbursed the amount of those bills to any person and allegedly mis-appropriated the amount of those false and bogus bills for which 17 separate challans in case FIR No. 87/86 P.S. Tappa appeared to have been filed against him and he appeared to be facing prosecution in all those cases. However, vide order dated 22.1.1996 of the Ld. Trial Magistrate in all those cases Sher Singh revision petitioners appeared to have been summoned as an accused in those cases on the ground that various bills on the basis of which those payments were drawn appeared to have been signed by Sher Singh as a Drawing and Disbursing Officer and he also appeared to be liable in all those cases. It appears that Sher Singh 41

revision petitioners has already been examined as a prosecution witness in various cases. Though in his statement recorded in the Court, he denied having signed various bills. It appears that those bills appeared to have been signed by him as a Drawing and Disbursing Officer. Being a DDO of the School, it was the duty of Sher Singh to sign various bills for presentation in the treasury, but it was nevertheless the duty Bholu Ram, Clerk to maintain the record regarding the disbursement of those amounts. In case Bholu Ram, Clerk allegedly prepared false and bogus bills and obtained the signatures of the DDO on the same, be alone appeared to be liable to account for the payment of those bills when those amounts did not appear to have been disbursed to various persons as mentioned n various Bills and Bholu ram allegedly misappropriated those amounts. The mere fact that Sher Singh signed those bills as Drawing and Disbursing Officer will not make him criminally liable when the amounts of the various bills, according to the prosecution case, were allegedly misappropriated by Bholu Ram alone".

66. In our considered opinion, the

Revisional Court was not justified in entering

into correctness or otherwise of the evidence

at the stage of issuance of summons to 42

respondent No.2. Admittedly, the Judicial

Magistrate had considered a limited question

whether on the basis of evidence of prosecution

witnesses, prima facie offence had been made

out against respondent No.2. He was, on the

basis of such evidence, was satisfied that the

case was required to be gone into and issued a

summons. To us, the Revisional Court was not

right in interfering with that order. Hence,

even on that ground, the order was not in

accordance with law.

67. The leaned counsel for respondent

No.2, however, submitted that the Revisional

Court was right in any case in allowing the

revision and in quashing proceedings against

the said respondent on the ground of absence of

sanction as required by Section 197 of the

Code.

68. We express our inability to agree with

the learned counsel. It is settled law that

offences punishable under Sections 409, 420,

467, 468, 471 etc. can by no stretch of 43

imagination by their very nature be regarded as

having been committed by a public servant while

`acting or purporting to act in discharge of

official duty' [vide Prakash Singh Badal v.

State of Punjab, (2007) 1 SCC 1].

69. The Revisional Court was aware of

legal position. It was, however, held by the

Court that at the most there was negligence on

the part of respondent No.2 but there was no

criminal intent and he cannot be held

criminally liable. We have already held that

mens rea can only be decided at the time of

trial and not at the stage of issuing summons.

Moreover, a point as to need or necessity of

sanction can be taken during the conduct of

trial or at any stage of the proceedings.

Hence, proceedings could not have been quashed

on the ground of want of sanction in the

present case. The order of the Revisional Court

deserves to be set aside even on that ground.

70. It was also urged that no applications

by the appellant could have been entertained by 44

the trial Court after about 8 to 10 years from

the date of filing of FIR. Now, an application

under Section 319 of the Code can only be made

to a Court and the Court may exercise the power

under the said Section if it appears from

evidence that any person other than the accused

had also committed an offence for which he can

be tried together with the accused. It was the

case of the appellant that it was during the

course of prosecution evidence that he came to

know that signatures of respondent No. 2 were

sent for examination, some report was received

by the prosecution which was not produced in

Court and on the basis of such evidence, the

case was made out against respondent No.2. If

in these circumstances, applications were made

and the prayer was granted, we see no infirmity

therein.

71. In our opinion, the Revisional Court,

i.e. the Court of Additional Sessions Judge

ought not to have interfered with the order

passed by the trial court under Section 319 of 45

the Code. As already noted earlier, the order

of addition of respondent No. 2 as an accused

and summoning him was not immediately

challenged by respondent No. 2. The challenge

was by the State and it failed. After a long

time, the respondent No. 2 approached the

Revisional Court. Since the order passed by the

Judicial Magistrate was in consonance with law,

the Additional Sessions Judge should have

refrained from exercising revisional

jurisdiction.

72. We may examine the role of the State

also. We have already noted earlier that an

order passed by the Judicial Magistrate

summoning respondent No.2 as accused was

challenged by the State by filing a revision in

the Court of Sessions, which was dismissed.

Even in this Court, the State supported

respondent No.2. An affidavit in reply is filed

by the State through Deputy Superintendent of

Police in March 2007, even before counter

affidavit was filed by contesting respondent 46

No.2. Though in the affidavit, it is not

necessary to deal with law points and/or

decisions rendered by a Court of law, the

deponent refers to and relies on K.K. Mathew

expressly overruled by a larger Bench in

Adalat Prasad. No reference at all has been

made to Adalat Prasad. It is respondent No.2

who, in his counter, refers to both the

decisions. In the totality of the facts and

circumstances, the submission of the learned

counsel for the appellant that the State

Authorities were helping and assisting

respondent No.2 cannot be said to be totally

ill-founded or without substance. The State, in

our opinion, could have easily avoided such

embarrassment.

73. For the foregoing reasons, the appeal

deserves to be allowed and is accordingly

allowed. The orders passed by the Additional

Sessions Judge and the High Court are set aside

and the order passed by the Judicial

Magistrate, Barnala is restored. Since the 47

matter pertains to FIR of 1986, the learned

Magistrate is directed to conclude the trial

expeditiously.

74. Before parting with the matter, we may

clarify that we have not entered into

allegations and counter-allegations. We have

considered the facts and circumstanced to a

limited extent to decide correctness of the

order passed by the Judicial Magistrate under

Section 319 of the Code. We make it clear that

we may not be understood to have expressed any

opinion on the merits of the matter. As and

when the case will come up for hearing, it will

be decided strictly on its own merits without

being inhibited or influenced by any

observations made by the trial court, by the

Additional Sessions Judge, by the High Court or

by us.

75. Ordered accordingly.

.............................................J. (C.K. THAKKER) 48

New Delhi, .............................................J. August 29, 2008. (D.K. JAIN)