Sarojben Ashwinkumar Shah Etc vs State Of Gujarat & Anr

(Arising out of S.L.P. (Crl.) Nos. 9527-9530 of 2010)

Sarojben Ashwinkumar Shah Etc. ...Appellants

Versus

State of Gujarat & Anr. ...Respondents

JUDGEMENT

R.M. LODHA, J.

Leave granted.

2. These 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.

3. For the sake of brevity and convenience, we shall refer

to the facts from the appeal arising from complaint (Criminal Case

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no. 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

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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 facts.

4. The 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 Shah and (iii) Chandravadan

Gopaldas Thakkar.

5. On 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

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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.

6. The Judicial Magistrate First Class, Prantij, as noted

above, has directed that Paresh Lakshmikant Vyas and Sarojben

Ashwinkumar Shah (appellant herein) be joined as Accused Nos. 4

and 5 and the High Court maintained such direction.

7. Section 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."

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8. The 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.

9. In 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.

10. In the case of Municipal Corporation of Delhi v. Ram

Kishan Rohtagi and Others2, this Court (at page 8) held as under :

"19. 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 345

2 (1983) 1 SCC 1

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cognizance against them has been made out on the

additional evidence led before it."

11. In 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 :

"11. 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.

12. But 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 xxx

3 (2000) 3 SCC 262

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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. 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

4 (2002) 5 SCC 738

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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."

13. In 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 taken.

14. In 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.

15. In 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 792

6 (2005) 12 SCC 327

7 (2007) 8 SCC 224

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application under Section 319 of the Code have been laid down in

these cases.

16. The 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 :

(i) The Court can exercise the power conferred on it under

Section 319 of the Code suo motu or on an application by

someone.

(ii) The power conferred under Section 319(1) applies to

all courts including the Sessions Court.

(iii) 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 2

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.

(iv) The 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.

(v) The 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

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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.

(vi) The 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.

(vii) Regard 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.

(viii) The court must, therefore, appropriately consider the above

aspects and then exercise its judicial discretion.

17. Now, 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

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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.

18. Consequently, 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.

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

(Aftab Alam)

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

(R.M. Lodha)

NEW DELHI

AUGUST 10, 2011

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