Amit Jogi and Others vs State of Chhattisgarh

Dilip Raosaheb Deshmukh, J.—This Criminal Revision is directed against the order dated 24-3-2006 passed Shri Shiv Mangal Pandey, learned 3rd Additional Sessions Judge, Raipur in Sessions Trial No. 329/2005 whereby the application u/s 319 Cr. P. C. filed by Amit Jogi, the applicant No. 1 herein, to add Reginald Jermiah P. W. 85 as an accused, was rejected.

Brief facts are that the 4 applicants herein along with 25 others are facing trial for offences punishable u/s 302 read with Sections 120B, 427 read with Section 34 I. P. C. and under Sections 25/27 of Arms Act. On the date of filing this criminal revision, as many as 96 witnesses had already been examined by the prosecution. It is alleged by the prosecution that Amit Jogi, the applicant No. 1 herein, hatched a criminal conspiracy to eliminate prominent N. C. P. leader Ramavatar Jaggi in furtherance of which Chiman Singh, the applicant No. 4 herein, committed murder of Ramavatar Jaggi.

During trial, Reginald Jermiah was examined as prosecution witness number 85 on 16-3-2006 and was cross-examined on 17-3-2006. On 26-3-2006 an application was moved on behalf of Amit Jogi, the applicant No, 1 herein, that the statement of Reginald Jermiah P. W. 85 established that he actually participated in the alleged criminal conspiracy to murder Ramavatar Jaggi. Thus, an offence u/s 302 read with Section 120B. I. P. C. was clearly made out against Reginald Jermiah. It was, therefore, prayed that in exercise of the powers u/s 319 Cr. P. C. Reginald Jermiah be added as an accused in Sessions Trial No. 329/2005.

The learned trial Judge rejected the prayer on the following grounds:

(i) that besides the evidence of Reginald Jermiah P. W. 85, there was no other material to show his complicity in the conspiracy to commit murder of Ramavatar Jaggi;

(ii) the evidence of Reginald Jermiah shows that in the meeting he was wholly opposed to the idea of Amit Jogi to eliminate N. C, P. leader Ramavatar Jaggi; and

(iii) u/s 132 of the Evidence Act, Reginald Jermiah was protected and could not be made an accused on the basis of his own statement.

Shri Surendra Singh, learned Senior Counsel appearing on behalf of the applicants has argued with great fervor that the evidence of Reginald Jermiah leaves no room for any doubt that he was a party to the criminal conspiracy alleged to have been hatched by Amit Jogi and others to eliminate Ramavatar Jaggi. To underline the scope of Section 319 Cr. P. C. and the duty of the Court envisaged therein, learned Senior Counsel cited a catena of decisions. To support the arguments that an accused can move an application u/s 319 Cr. P. C. and to counter the arguments of Shri Bhishma Kinger, learned Counsel appearing for the Central Bureau of Investigation that placing a witness on trial on his own admissions was contrary to the norms known to the criminal justice system, learned Senior Advocate for the applicants placed reliance on Vasudevan Nair Vs. State of Kerala, , Pukhraj Vs. State of Rajasthan, , Mohan Wahi Vs. State (Central Bureau of Investigation), New Delhi, Lakshmandas Chaganlal Bhatia and Others Vs. The State, and Chiraqdalvi Mohammed Abdul Azeem Ahmed Vs. The State, . For proving ingredients of conspiracy, reliance was placed on Kehar Singh and Others Vs. State (Delhi Administration), . For highlighting the duty of Court u/s 319 Cr. P. C. reliance was placed on Joginder Singh and Another Vs. State of Punjab and Another, , Jarnail Singh and Another Vs. State of Haryana and Another, , Girish Yadav and Others Vs. State of Madhya Pradesh, and Arun Dube Vs. The State of M.P., Distinguishing the citation rendered in Michael Machado and Another Vs. Central Bureau of Investigation and Another, relied upon by the learned Counsel for the C. B. I., it was argued that the mere fact that an important witness who ought to have been examined at the beginning of the trial, was examined by the prosecution at No. 85 could not be a ground for refusing to exercise the power u/s 319 Cr. P. C. The statement of Reginald Jermiah P. W. 85 was read in extenso and heavy reliance was placed on paragraphs 7 to 12 to support the arguments that the statement clearly established that Reginald Jermiah was a party to the criminal conspiracy allegedly hatched by Amit Jogi to eliminate Ramavatar Jaggi.

On the other hand, Shri Bhishma Kinger, learned Standing Counsel for the C. B. I. argued that for impleading any person other than an accused in any enquiry or trial as an accused u/s 319 Cr. P. C., the evidence adduced during the course of a trial must be such which if accepted at its face value would establish the guilt of such person beyond doubt for the offence u/s 302 read with Section 120B I. P. C. Reliance was placed on Muthanikattil Mohammedkutty and Another Vs. State of Kerala, while arguing that placing a witness on trial on his own admissions was contrary to the norms known to criminal justice system. Reliance was also placed on State (Delhi Administration) Vs. Jagjit Singh, . Relying upon Michael Machado and Another Vs. Central Bureau of Investigation and Another, , it was argued that exercise of the power u/s 319 Cr. P. C. after recording of evidence of 96 witnesses was not worth wasting the whole labour already undertaken since the evidence of Reginald Jermiah, if accepted on its face value, would not establish his guilt u/s 302 read with Section 120B of I. P. C. Under these circumstances, the exercise of power u/s 319 Cr. P. C. was rightly refused since it would, under the first limb of Sub-section (4) of Section 319 Cr. P. C. involved de novo trial in respect of such person sought to be added , which was wholly uncalled for in this case. Lastly it was urged with vehemence that the prayer made by Amit Jogi, the applicant No. 1 herein, was not an off-shoot of his desire to bring a co-conspirator to book for doing complete justice but was merely a strategy to defeat the prosecution. Shri Ashish Shukla, learned Government Advocate adopted the contentions raised by Shri Bhishma Kinger and argued in support of the impugned order.

Having heard the rival contentions, I have perused the case law cited. It is settled law that the power u/s 319, Cr. P. C. is an extraordinary power which is conferred on the Court and should be used very sparingly by the Court only if compelling reasons exist for taking cognizance against a person who was not an accused before it. In Michael Machado and Another Vs. Central Bureau of Investigation and Another, , it was held that the Court while deciding whether to invoke the power u/s 319 Cr. P. C., must also address itself to 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 and cross-examined in order to reach the stage where it existed on the date of application u/s 319 Cr. P. C, 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 is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against such person ending in his conviction for the offence concerned the Court should refrain from adopting such a course of action.

In view of the above, the following material factors need consideration while dealing with an application u/s 319 Cr. P. C.-

A. Whether the nature of evidence adduced during trial Is such that if accepted on its face value, it would bring home the guilt of Reginald Jermiah u/s 302 read with Section 120B. I. P. C.

B. Whether In view of the constraints imposed by the first limb of Sub-section (4) of Section 319 Cr. P. C. the objects sought to be achieved by invoking the power u/s 319 Cr. P. C. is worth wasting the whole labour already undertaken by the prosecution? and

C. Whether the application u/s 319 Cr. P. C. is filed merely to defeat the prosecution?

The provision of Section 319 Cr. P. C. runs as Under:

Section 319 Cr. P. C.- 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 the witness re-heard:

(b) Subject to the provisions of Clause (a), the case may proceed as if such peson had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

The words "it appears from the evidence that any person not being the accused has committed any offence" appearing in Section 319 Cr. P. C. clearly connote that there must be legal evidence on record showing involvement of any person other than the accused before the Court in the commission of the offence. In other words, the evidence on the basis of which a person is sought to be proceeded against, u/s 319 Cr, P. C. for an offence u/s 302 read with Section 120B. I. P. p. must be such that if accepted on its face value it would satisfy all the essential ingredients for constituting the offence.

Scrutinizing the evidence of Reginald Jermiah on the above touchstone, it is found in paragraph-7 that on 21-5-2003, on being called by Amit Jogi at the Green Park Hotel, this witness had gone to that Hotel where in a meeting the applicants No. 1 to 3 and some other persons were present, Amit Jogi had in the meeting floated the idea that some prominent N. C. P. leaders like Ramavatar Jaggi and others should be eliminated. However, there is a positive assertion by this witness that he along with 2-3 other persons had opposed the idea stating that it would be wholly improper to do such a thing.

It appears from the evidence of Reginald Jermiah that at the instance of Amit Jogi, he had telephoned Chiman Singh to meet Amit Jogi at the Green Park Hotel. When Chiman Singh arrived, Amit Jogi asked Reginald Jermiah and other persons to go out of the room, and therefore, this witness was not privy to what had transpired in the room between Amit Jogi and Chiman Singh. This witness further stated that Chiman Singh emerged out of the room carrying a bag and he would not know what was therein. Thereafter, all of them went away. The above statement also does not conclusively show that Reginald Jermiah had joined tacitly in the criminal conspiracy hatched by Amit Jogi to eliminate Ramavatar Jaggi.

In paragraph 9, Reginald Jermiah has further stated that 2-3 days after the aforesaid meeting he was called by Amit Jogi at the residence of the Chief Minister. When he reached there, a meeting was in progress in which the applicants No. 1 to 3 were present and were giving suggestions to sabotage the rally of N. C. P. The statement of Reginald Jermiah in paragraph 9 does not show that he had in any manner conspired to sabotage the rally of N. C. P.

In paragraph 10, Reginald Jermiah has stated that he was attending a political meeting of Amit Jogi at Rajnandgaon. On 5-6-2003 at 5.30 A. M. while they were going to Rajnandgaon, they learnt that Ramavatar Jaggi was murdered in Raipur. Hearing this, he was aghast and contacted one Lav Kumar Mishra, a journalist and bought a newspaper. Thereafter, this witness, on reaching Rajnandgaon informed Amit Jogi about the incident which had taken place at Raipur. The above statement also does not show that Reginald Jermiah was acting in concert with Amit Jogi and was a party to the criminal conspiracy alleged to have been hatched by Amit Jogi.

It is only in paragraph 12 that it emerges that Reginald Jermiah was asked by Amit Jogi to deliver Rs. 4-5 lakhs to Chiman Singh which he did. This was an act which had taken place after the murder of Ramavatar Jaggi. In paragraph 12, it was also stated that Amit Jogi had called Reginald Jermiah and had asked him to go to Assam to pay 4-5 lakhs of rupees to Chiman Singh. On his way to the Airport, Yahya Dhebhar, applicant No. 2, gave him Rs. 5 lakhs whereupon this witness went to Bhuvaneshwar and Kolkata and paid the money to Chiman Singh in Hotel Park.

If the evidence of Reginald Jermiah is accepted at its face value, it would show that he was a close friend of Amit Jogi and had also studied with him in St. Stephan College, New Delhi, Amit Jogi had also given him the offer to work as the Director of Aakash T.V. Channel. Although it shows that as a loyal friend, at the command of Amit Jogi, he telephoned Chiman Singh to meet Amit Jogi and went to deliver Rs. 5 lakhs to Chiman Singh, yet from his evidence, it also emerges that he was wholly opposed to the idea of Amit Jogi to eliminate Ramavatar Jaggi and at the party meeting had not participated or floated a single idea to sabotage the N. C. P. rally. It therefore, needs to be considered whether the testimony of Reginald Jermiah by itself would be sufficient, in the facts and circumstances of the case, to exercise the power u/s 319 Cr. P. C. to add Reginald Jermiah as an accused in this case.

From the submissions made by the learned senior counsel for the applicants, it also appears that besides the testimony of Reginald Jermiah, there is absolutely no other material on record to show the complicity of Reginald Jermiah in the criminal conspiracy alleged to have been hatched by Amit Jogi. An application u/s 319 Cr. P. C. is to be considered on the totality of the evidence adduced by the prosecution and not on the basis of the statement of a single witness making some inculpatory statements. This fact was also considered by the learned trial Judge while rejecting the prayer u/s 319 Cr. P. C. by the applicant No. 1.

Even though there was no delay on the part of the accused in making an application u/s 319 Cr. P. C., this fact also cannot be lost sight of that as many as 96 witnesses have already been examined by the prosecution. It also appears that so far as the criminal conspiracy alleged to be hatched by Amit Jogi to eliminate Ramavatar Jaggi is concerned, Reginald Jermiah is the star witness for the prosecution. It is also to be noticed that the application u/s 319 Cr. P. C. was filed only by the applicant No. 1 i.e. Amit Jogi. It cannot, therefore, be ruled out that the application does not emanate from a desire to bring an offender to books and to do complete justice in the matter, as was argued by the learned Senior counsel for the applicants, but is solely for the purpose of defeating the prosecution. Relying on Michael Machado and Another Vs. Central Bureau of Investigation and Another, , in the above circumstances, it is not worth wasting the whole labour already undertaken by the prosecution in examining 96 witnesses. In view of the constraints imposed by the first limb of Sub-section (4) of Section 319 Cr. R C. such a course is also uncalled for at the stage in which the prosecution stood on the day when the application u/s 319 Cr. P. C. was made. It also appears unjust to proceed u/s 319 Cr. P. C. against a person who had the courage to enter the witness box and unfold the criminal conspiracy allegedly hatched by Amit Jogi to eliminate Ramavatar Jaggi and while testifying truthfully made some inculpatory statements although they do not satisfy the legal requirement to prove the offence u/s 302 read with Section 120B-I. P. C. beyond doubt.

In the above facts and circumstances, the discretion exercised by the learned 3rd Additional Sessions Judge, Raipur in refusing to add Reginald Jermiah as an accused u/s 319 Cr. P. C. cannot be faulted with.

For the foregoing reasons, I find no merit in this petition which is accordingly dismissed.