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TMI Blog2008 (8) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... lant 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 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evidence that certain witnesses deposed against respondent No. 2 alleging that it was respondent No. 2 who had withdrawn the amount and signatures purported to have been forged by the appellant really tallied with the specimen signatures of respondent No. 2.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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions of this Court on interpretation and application of the said provision. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ficti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thew 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; "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent 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 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, and that a revision petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la 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". 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. 70. 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 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 the Code. As already noted earlier, the order of addition of respondent No. 2 as an accused and summoning him was not immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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