Girish Sharma vs The State Of Chhattisgarh

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE/ORIGINAL JURISDICTION

CRIMINAL APPEAL NO(S). 939-940 of 2017

GIRISH SHARMA & ORS. …Appellant(s)

VERSUS

THE STATE OF CHHATTISGARH & ORS. …Respondent(s)

WITH

Criminal Appeal No(s). 941-942/2017

SLP(Crl) No. 5363/2017

T.P.(Crl.) No. 241/2017

ORDER

Crl.Appeal No(s).939-940 of 2017

1. On 12th February, 2015, FIR No.9/2015 was registered by the

Anti-Corruption Bureau and Economic Offences Wing under the provisions of

Indian Penal Code and Prevention of Corruption Act, 1988. The allegation was

that huge amount was recovered from possession of accused which was as a

result of corruption. The FIR was against 27 persons but after investigation Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2017.08.30 10:22:07 IST

chargesheet was filed against 16 persons. The persons against whom the Reason:

chargesheet was filed included senior officers of the Chhattisgarh State Civil 2

Supplies Corporation.

2. During investigation, statements of three of the accused mentioned in

the FIR, namely, Girish Sharma, Arvind Singh Dhruv and Jeet Ram Yadav, who

are appellants before us, were recorded under Sections 161 and 164 Cr.P.C.

They were not arrayed as accused but were cited as witnesses in the

chargesheet. After the court took cognizance against the accused named in the

chargesheet, some of the accused made applications under Section 193/319

Cr.P.C. to summon the above three persons, Girish Sharma, Arvind Singh

Dhruv and Jeet Ram Yadav as accused.

3. The trial court rejected the said applications but the matter was carried

in revision before the High Court and the High Court allowed the summoning.

The reason given by the High Court in the order of summoning is that

procedure under Section 306 Cr.P.C. was not followed which was the only

procedure available under the Criminal Procedure Code to make an accused a

witness, after grant of pardon with Court’s permission. The High Court relied

upon the version given by the said appellants in their statements under Sections

161 and 164 Cr.P.C. annexed to the chargesheet stating that some amount was

found in their possession.

4. In these appeals we have heard Mr. Tushar Mehta, learned Additional

Solicitor General appearing for Anti-Corruption Bureau and Mr. Mahesh

Jethmalani, learned senior counsel appearing for appellants, Girish Sharma, 3

Arvind Singh Dhruv and Jeet Ram Yadav, who submitted that Section 319

Cr.P.C. was not applicable in the present case. They submitted that the trial

court having declined to take cognizance against the appellants, there was no

justification for the High Court to have taken cognizance against the said three

persons. It was submitted that it was the wisdom of the investigator/prosecutor

to avail of the evidence of some of the suspects having regard to the larger

purpose of securing conviction of accused against whom there were more

serious charges and for this purpose recourse to Section 306 Cr.P.C. was not the

only option available. It was also submitted that having regard to the facts of

the present case, there was a bona fide decision taken by the prosecution in

filing chargesheet only against 16 accused and not against the said three

appellants who were proposed to be cited as witnesses as per the chargesheet.

Self incriminating statements of the said appellants could not be acted upon

against them as the said statements were made as proposed witnesses. It was

further submitted that the said three appellants could be separately and

subsequently prosecuted in the absence of any immunity granted to them in

terms of Section 306 Cr.P.C. In these circumstances, cognizance could not be

taken against them merely on account of their being incriminating material

without weighing the advantage of having them as witnesses to prove charges

against the accused named in the charge sheet which were more serious.

Application on behalf of the said accused was intended to scuttle the

prosecution case against them which has not been appreciated by the High 4

Court. It was submitted that procedure under Section 306 to seek pardon is not

the only course available to rely on the evidence of an accomplice by citing him

as witness instead of arraying him as accused. Reliance has been placed on

Chandran @ Manichan @ Maniyan versus State of Kerala1 .

5. Mr. K.V. Vishwanathan, learned senior counsel appearing for

respondent no.3, Kaushal Kishsore Yadu, one of the original applicants at

whose instance summoning was allowed, fairly submitted that Section 319

Cr.P.C. may not be applicable at this stage. He, however, submitted that the

decision of the prosecutor not to array a person, against whom incriminating

material existed, as accused in the chargesheet and to cite him as a witness,

could not be a final decision and is subject to ultimate decision of the court.

Cognizance could be taken by the Court.

6. The submission made on behalf of the appellants that the prosecution

was entitled to cite the three original accused as witnesses, in the given fact

situation, having regard to larger interest of justice to strengthen the prosecution

case against more serious accused cannot be held to be without substance. This

could be done even without recourse to Section 306 Cr.P.C. It is certainly open

to the Court to finally decide whether cognizance ought to be taken or not after

balancing all the relevant considerations. The decision of the prosecutor to cite

them as witnesses does not bind the Court and such decision can be interfered

with if interest of justice so requires.

1 (2011) 5 SCC 161 5

7. In the present case, decision of the High Court has not been arrived at

by weighing the interest of justice in having the appellants as accused instead of

their utility as witnesses. The decision is based on the sole consideration of

there being material against them. It was erroneously assumed that without

following the procedure of Section 306 Cr.P.C., an accomplice could not be

cited as a witness. Further question, whether rejecting the proposal of

prosecution to cite the appellants as witnesses will jeopardise prosecution case

against more serious accused, has not been gone into. Thus, the matter needs

fresh consideration on this touchstone.

8. Accordingly we set aside the impugned order and remand the matter

to the High Court for dealing with the matter afresh in accordance with law.

While considering whether the aforesaid three persons be summoned as accused

or not, the High Court shall not take into account the statements made by them

either under Sections 161 or 164 Cr.P.C. as proposed witnesses.

9. It has been brought to our notice that the charge has already been

framed and four witnesses have been examined. The High Court will take this

factor also into consideration whether at this stage the order declining taking

cognizance by the trial ought to be interfered with by the High Court.

10. The parties are directed to appear before the High Court for further

proceedings on Monday, the 4th September, 2017.

6

11. The High Court may deal with the matter expeditiously and as far as

possible within two weeks so that the trial can proceed, having regard to the fact

that the case is at the evidence stage and all the 16 accused against whom

chargesheet was filed, are in custody since more than two years. Subject to the

decision of the High Court, the trial may be concluded expeditiously.

The papers may be placed before the Chief Justice of the High Court of

Chhattisgarh for assigning the matter to an appropriate Bench.

Criminal Appeal NO(s).941-942 of 2017 :

In view of order passed in Criminal Appeal NO(s).939-940 of 2017, these

appeals are also disposed of in the same terms.

SLP(Crl.)No.5363 of 2017 :

The special leave petition is dismissed as withdrawn.

T.P.(Crl.)No.241 of 2017 :

We do not find any merit in this transfer petition which is hereby dismissed.

…………...........................J. (ADARSH KUMAR GOEL)

…………...........................J. (UDAY UMESH LALIT)

New Delhi, August 23, 2017.