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2008 (8) TMI 955 - SC - Indian LawsPower of Judicial Magistrate to entertain application filled u/s 319 after 8- 10 years - time limit prescribed to entertain application - recall an order of summoning the accused - Whether in Absence of sanction as envisaged by Section 197 No Prosecution could be launched? HELD THAT - The contention of the ld counsel for respondent No. 2 is that the power u/s 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 u/s 319 cannot be filed by a person who is facing the trial. 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. When applications u/s 319 of the Code were preferred by the appellant praying to join respondent No.2 as an accused and to issue summons the ld Magistrate considered the evidence of prosecution witnesses and he was satisfied that depositions of witnesses prima facie made out offence against 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. Ld 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. We express our inability to agree with the ld counsel. It is settled law that offences punishable u/s 409 420 467 468 471 etc. can by no stretch of 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 . 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. It was also urged that no applications by the appellant could have been entertained by the trial Court after about 8 to 10 years from the date of filing of FIR. Now an application u/s 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. In the totality of the facts and circumstances the submission of the ld 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. Therefore 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 is restored. Since the matter pertains to FIR of 1986 the ld Magistrate is directed to conclude the trial expeditiously. 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. Ordered accordingly.
Issues Involved:
1. Legality of the Magistrate's power to recall an order summoning an accused. 2. Applicability of Section 319 of the Code of Criminal Procedure, 1973. 3. Necessity of sanction under Section 197 of the Code for prosecuting a public servant. 4. Timeliness of filing an application under Section 319. 5. Role and conduct of the State in the proceedings. Issue-wise Detailed Analysis: 1. Legality of the Magistrate's Power to Recall an Order Summoning an Accused: The appellant contended that once a Judicial Magistrate issues an order summoning an accused, the Magistrate has no power to review or recall the said order. The Court agreed, citing the precedent set in *Adalat Prasad v. Rooplal Jindal & Ors.*, which overruled the earlier decision in *K.M. Mathew v. State of Kerala & Anr.*. The Court concluded that a Magistrate lacks the power to recall an order once it has been issued, as the Criminal Procedure Code does not provide for such a review. 2. Applicability of Section 319 of the Code of Criminal Procedure, 1973: Section 319 empowers a Court to proceed against any person not originally an accused if evidence suggests their involvement in the offense. The Court emphasized that this power could be exercised either suo motu or on an application by any party, including the accused. The primary objective is to ensure that the entire case against all accused is tried simultaneously for the sake of justice and convenience. The Court upheld the Magistrate's decision to summon respondent No. 2 based on prima facie evidence, reiterating that the power under Section 319 is discretionary and should be exercised judiciously. 3. Necessity of Sanction under Section 197 of the Code for Prosecuting a Public Servant: The Court rejected the argument that sanction under Section 197 was necessary for prosecuting respondent No. 2, a public servant. It was held that offenses such as those under Sections 409, 420, 467, 468, and 471 IPC cannot be considered as acts done in the discharge of official duty. The Court cited *Prakash Singh Badal v. State of Punjab*, affirming that such offenses do not require prior sanction for prosecution. 4. Timeliness of Filing an Application under Section 319: The respondent argued that the applications under Section 319 were filed belatedly, nearly 8 to 10 years after the FIR. The Court dismissed this argument, stating that Section 319 does not prescribe any time limit for filing such applications. The Court found no infirmity in the appellant's applications, as they were based on evidence that emerged during the trial. 5. Role and Conduct of the State in the Proceedings: The Court noted that the State had initially challenged the Magistrate's order but later seemed to support respondent No. 2. The Court criticized the State's conduct, suggesting that the State authorities appeared to assist respondent No. 2. The Court emphasized that the State should have avoided such embarrassment and acted impartially. Conclusion: The Supreme Court allowed the appeal, setting aside the orders of the Additional Sessions Judge and the High Court, and restored the Magistrate's order summoning respondent No. 2. The Court directed the trial to be concluded expeditiously, clarifying that it had not expressed any opinion on the merits of the case, which should be decided independently by the trial court.
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