Harinarayan G Bajaj vs State Of Maharashtra & Ors

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 28 OF 2010

(Arising out of SLP (Crl.) 6485 of 2008)

Harinarayan G. Bajaj .... Appellant

Versus

State of Maharashtra & Ors. .... Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. Interpretation of Section 319 of the Code of Criminal Procedure

(hereinafter called "Cr.P.C." for short) and, more particularly, Sub-Section

(4) thereof has fallen for consideration in this appeal.

3. The factual scenario: A complaint was filed against three

accused persons, being respondent Nos. 2, 3 and 4 herein for offence

under Section 406 read with Section 114 of the Indian Penal Code (for

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short `IPC') in the Court of the Metropolitan Magistrate. We need not go

into the facts stated in the said complaint in view of the narrow question

which falls for consideration in this appeal. The Trial Court took the

cognizance of the offences on 03.04.1998 and issued process against

respondent Nos. 2 to 4. The Trial Court proceeded to examine the

witnesses before framing the charge. Number of revisions including the

discharge application were filed by the accused and the trial went on up to

15.09.2005 when the Bombay High Court expedited the trial. On

13.06.2006, the cross-examination of the first witness of the prosecution at

the stage of evidence before charge was completed by the Advocate of the

accused persons. This cross-examination ran into 115 pages. Since the

matter could not be finished up to the date fixed by the Bombay High

Court, it was extended up to 30.06.2006 for completion of trial. The time

was further extended till December, 2006 and further up to 31.05.2007. In

the meantime, the second witness was cross-examined which cross-

examination consisted of 148 pages. Likewise, third witness of the

prosecution was also examined on 11.05.2007. The Trial Court

discharged Shri Pramod Banka and Smt. Rani V. Agrawal and framed

charges against the third respondent herein. The time was again extended

by the High Court till 31.12.2007. This was challenged by way of the

revision by the appellant, which was allowed. The third respondent also

filed a revision which was dismissed by the High Court and the High Court

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directed the Trial Court to frame charge against respondent No. 2 to 4 also

under the provisions of Sections 403, 409 read with Section 34, IPC.

Ultimately, the charges came to be framed against respondent Nos. 2 to 4

on 28.11.2007.

4. At this stage, on 15.12.2007, the appellant herein filed an application

under Section 319 Cr.P.C. requesting to array respondent No.5 herein as a

co-accused in the said proceedings. On 31.12.2007, this application was

allowed and the summons was issued to the 5th respondent, Creative

Garments Ltd. a company incorporated under the Companies Act through

its Managing Director.

5. On 03.01.2008, the 5th respondent preferred an application to the

Trial Court to commence the proceedings qua the 5th respondent from the

stage of inquiry i.e. from the stage of Section 244, Cr.P.C. and to allow the

cross-examination of the witnesses of the prosecution at the stage of

evidence before charge. On 22.02.2008, this application came to be

allowed. However, the Trial Court split the trial of respondent No.5 and the

other respondent Nos. 2 to 4. Respondent Nos. 2 to 4 challenged the

order dated 22.02.2008 splitting the trial. That order was quashed by the

High Court by an order dated 31.03.2008. Further, an application came to

be made by respondents on 15.04.2008 seeking the clarification of the

High Court's order which clarification was given by the High Court on

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23.04.2008 holding that the order was restricted only to the aspect of

splitting of trial and not to any other matter.

6. The appellant also filed a criminal application on 30.04.2008 seeking

the quashing of the order dated 22.02.2008 by which the Trial Court had

ordered the de novo proceedings as against respondent No.5 from the

stage of inquiry. Further, a direction was sought to straightaway frame

charge against respondent No.5 for the same offence with which

respondent Nos. 2 to 4 were charged. The High Court, however, rejected

this application by the complainant (appellant herein) and held that there

could be no dispute that the Court must commence de novo proceedings

against respondent No. 5 and it further observed that mere delay which

might be caused to the complaint would be of no consequence.

7. Shri Naphade, learned Senior Counsel appearing on behalf of the

complainant-appellant urges that the High Court has erred in confirming

the order of the Trial Court permitting the de novo proceedings against

respondent No.5 in the sense that it allowed the further cross-examination

of the witnesses who were already examined before framing the charge.

Contention by learned Senior Counsel is that there would be no question

of such a permission of the cross-examination of the witnesses who were

examined before framing of the charge since firstly, the charge against the

other accused persons has already been framed and secondly, there is no

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such right of cross-examination under Section 244, 245 and 246, Cr.P.C.

The Counsel argues that the term `evidence' as mentioned in Section 244,

Cr.P.C. does not necessarily include the cross-examination of the

witnesses who were examined at that stage. The further contention of the

counsel is that Section 319 (4), Cr.P.C. does not require a de novo inquiry

as has been ordered by the Trial Court and affirmed by the High Court.

Reliance was placed on Rakesh v. State of Haryana [2001 (6) SCC 248],

Ram Gopal & Anr. V. State of U.P.[1999 Crl. L.J. 1865] and Michael

Machado v. Central Bureau of Investigation [2000 (3) SCC 262].

8. As against this, Shri Ponda, learned Counsel appearing on behalf of

the respondent accused urged that the analysis of Section 319 Cr.P.C.

itself would show that there has to be de novo inquiry in the sense that the

newly joined accused in such a trial must be given a right to cross-examine

the witnesses who were examined prior to the framing of charge. He

pointed out that if the interpretation as canvassed by the appellant is given,

then there is a likelihood of the complainant taking advantage of his own

wrong and such an interpretation would give rise to a mischief.

9. Learned counsel pointed out that the rulings pointed out by the

appellant were not applicable to the controversy. Learned Counsel also

urged that the use of the word `evidence' in Sections 244, 245, 246,

Cr.P.C. supports that the accused under those Sections have the right of

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cross-examination and, more particularly, if such a right is not spelt out

from the language, then it would only mean that the accused in the warrant

trial based on the complaint case would have to helplessly watch the

charge being framed. This is all the more true, according to learned

Counsel, in a case where accused has been joined under Section 319,

Cr.P.C. On these rival contentions, it is to be seen whether the Trial Court

and the High Court were right in ordering a de novo inquiry.

10. The relevant part of Section 319, Cr.P.C. is as under 319 (1):

"(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) XXX XXX

(3) XXX XXX

(4) Where the Court proceeds against such 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

an inquiry or trial was commenced."

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11. Even a glance at this Section suggests that there is no escape from

commencing the proceedings afresh and also that the witnesses have to

be re-heard. Clause (a) is the basic provision and the use of the words

`proceedings' and the term `commence afresh' has its own significance. If

we accept the contention of Shri Naphade that the newly joined accused

has no right of cross-examination, it would mean that on being joined

under Section 319 (1), Cr.P.C., the only step that would be required would

be framing of charge against him. In that, there would be a complete

denial to such accused of an important right of cross-examination of the

witnesses before the framing of the charge. It would only then mean that

such accused would remain a mute spectator till the framing of the charge.

12. We would also give a meaningful interpretation to the word

`proceedings' which has been deliberately used by the Legislature. The

Legislature does not use the word `trial' which essentially begins after

framing of the charge. If the Legislature had intended that the newly joined

accused should not get the right of cross-examining the witnesses

examined before framing of the charge, it might have used the word `trial'.

The deliberate use of the word `proceedings' would then include not only

the trial but also the inquiry which commences with Section 244, Cr.P.C.

and ends with the framing of the charge under Section 246, Cr.P.C. The

terminology `commence afresh' has also its own force. It indicates that the

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whole inquiry which commences from Section 244 Cr.P.C. must begin

afresh. The interpretation that we give to the words `proceedings' is

buttressed by the language of 319 (b), Cr.P.C. The plain language takes

back the whole proceedings to the stage of taking cognizance. If we

accept the contention of the appellant herein, then sub-clause (b) would be

rendered otiose. We have, therefore, no doubt that the language of

Section 319, Cr.P.C. itself pushes the proceedings back to the stage of

inquiry, once the order under Section 319 (1) Cr. P.C. is passed by the

Court and a new accused is joined therein.

13. There is one more angle and that is the angle of mischief. If the

interpretation given by the appellant is to be accepted then a complainant,

wherein it is a case of multiple accused, may mischievously join only few of

them and after getting the charge framed, make an application under

Section 319, Cr.P.C. to join some other accused persons who would then

have no right of cross-examination of the witnesses and who would be

required to be the mute spectators to the charge being framed against

which they could have successfully resisted by cross-examining the

witnesses.

14. There is one more aspect that before summoning the accused under

Section 319 (1), Cr.P.C. there is no requirement of allowing such accused

person to cross-examine the witnesses. That stage comes only after an

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accused is summoned under sub-Section (1). Therefore, it would be a

case where the newly added accused who has not had the advantage of

hearing the evidence would be put to prejudice because firstly, he has not

heard the evidence and secondly, he cannot even cross-examine those

witnesses in the warrant trial based on a private complaint.

15. This brings us to the question argued by Shri Naphade on the basic

right of cross-examination to the accused in the proceedings under Section

244, Cr.P.C. In fact, in view of our interpretation of Section 319(4), it is

really not necessary to go into that question. However, since the Learned

Senior Counsel argues that there is no right at all to give opportunity of

cross-examination to any accused whether brought before the Court

initially or by way of Section 319(1), we proceed to consider the question.

16. This Court has already held that right to cross-examine the

witnesses who are examined before framing of the charge is a very

precious right because it is only by cross-examination that the accused can

show to the Court that there is no need of a trial against him. It is to be

seen that before framing of the charge under Section 246, the Magistrate

has to form an opinion about there being ground for presuming that the

accused had committed offence triable under the Chapter. If it is held that

there is no right of cross-examination under Section 244, then the accused

would have no opportunity to show to the Magistrate that the allegations

1

are groundless and that there is no scope for framing a charge against

him. In Ajoy Kumar Ghose v. State of Jharkhand [Criminal Appeal

No. 485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to

the accused to cross-examine the witnesses examined before framing the

charge and that the said right is extremely important. It is observed in para

25:

"the right of cross-examination is a very salutary right

and the accused would have to be given an opportunity

to cross-examine the witnesses who have been offered

at the stage of Section 244 (1) Cr.P.C."

17. Therefore, the situation is clear that under Section 244, Cr. P.C. the

accused has a right to cross-examine the witnesses and in the matter of

Section 319, Cr. P.C. when a new accused is summoned, he would have

similar right to cross-examine the witness examined during the inquiry

afresh. Again, the witnesses would have to be re-heard and then there

would be such a right. Merely presenting such witnesses for cross-

examination would be of no consequence. This Court has already held so

in Shashi Kant Singh v. Tarkeshwar Singh & Anr.[2002 (5) SCC 738].

18. Though a feeble attempt was made to argue that in that ruling the

Supreme Court had expressed, `in short there has to be a de novo trial

against him. The provision of de novo trial is mandatory' and therefore, it is

only a `trial' which has to be ordered and not the `proceedings'. The

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argument is absolutely incorrect because in Shashi Kant Singh'case

(cited supra), the Court was dealing with a warrant trial case, not based

on a private complaint and, therefore, the Supreme Court used the words

de novo trial. The High court has correctly appreciated this provision.

19. This takes us to the rulings cited which we must consider. In

Rakesh v. State of Haryana [2001 (6) SCC 248], this Court framed the

question in paragraph 3 in the following words:

"Whether the statement of a prosecution witness without

the said witness having been cross-examined

constitutes "evidence" within the meaning of Section

319, Cr.P.C."

It is in that behalf that the Court expressed:-

"....the contention that the term 'evidence' as used in

Section 319 Criminal Procedure Code would mean

evidence which is tested by cross examination cannot

be accepted"

The Court, however, immediately expressed that the question of

discharging the evidence by cross-examination would arise only after the

addition of the accused and that there was no question of cross-examining

the witnesses prior to adding such person as accused. It was further said

that the Section does not contemplate an additional stage of first

summoning the person and giving him the opportunity to cross-examine

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the witness who has deposed against him and thereby testing whether

such person to be added as accused or not. Once the Sessions Court

records the statement of the witnesses, it would be part of the evidence.

Therefore, it was in different factual situation that this Court had made

those observations. We do not think that such observations can be taken

advantage of. This is apart from the fact that the Court has specifically

held that the interpretation of the evidence was only for the purpose of

Section 319, Cr.P.C.

20. To the similar effect was the ruling relied upon by the appellant in

Ram Gopal & Anr.v. State [1999 CrLJ 1865]. In fact Ram Gopal's case

is also restricted to the interpretation of the word `evidence' as is used

under Section 319, Cr.P.C. Though there are some other observations in

respect of Section 244, Cr. P.C., we do not think that the observations in

paragraph 29 are correct. In fact the observations in paragraph 35 therein

clarified the ratio of that decision. In that view, that judgment will be of no

help.

21. Our attention was also invited to R.S. Nayak v. A.R. Antulay [1986

(2) SCC 716] paragraphs 45 and 46. We do not think that there is any

need on our part to comment on this case, more particularly, to assess the

scope of Sections 244 and 245, Cr. P.C. because if Section 319 (4)

Cr.P.C. is interpreted in the manner that we have interpreted it, there

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would not necessity of going into the scope of Section 244, Cr.P.C. as

because of that interpretation all the proceedings would be relegated back

and start afresh whereby there would be clear scope and right for the

newly added accused to hear the evidence of witnesses examined before

framing of charge and to cross-examine them.

22. A reference was also made to Michael Machado v. Central Bureau

of Investigation [2000 (3) SCC 262]. However, in our opinion Michael

Machado's case is not an authority on the true scope of Section 319 (4)

Cr.P.C.

23. Shri Naphade also tried to suggest by taking us to the old Section

252, Cr.P.C. to suggest that there is no right of cross-examination. As we

have already clarified, once we interpret the provisions of Section 319 (4),

Cr.P.C. to mean that the proceedings have to go back and have to be

commenced afresh and the witnesses have also to be re-heard, then the

right of cross-examination would be innate and under the circumstances

there would be no necessity of specifically commenting upon the scope of

Section 244, Cr.P.C.

24. In view of what we have held, we find that the High Court's judgment

confirming the Trial Court's judgment is correct and we see no reason to

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interfere with the same. The appeal has no merits and is, therefore,

dismissed.

...................................J.

(V.S. Sirpurkar)

...................................J.

(Dr. Mukundakam Sharma)

New Delhi,

January 06, 2010