Central Bureau of Investigation vs Dharampal Singh Choudhary

Anand Byrareddy, J.—Heard the learned Counsel for the petitioner. The learned Counsel for the respondents remains absent.

The brief facts of the case are that the petitioner is the Central Bureau of Investigation (CBI) and it has initiated proceedings against accused 1 to 6 for offences punishable under Sections 420, 468, 471, 473 and 477 of the Indian Penal Code, 1860 (Hereinafter referred to as the IPC for brevity) and Sections 13(2) read with 13(1)(d) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and had furnished a list of witnesses, including one B.V. Ashwathanarayana Shetty, who was shown as CW. 1.

It transpires that B.V. Ashwathanarayana Shetty was an employee of accused no. 5 and in the proceedings, at the stage before framing of the charges, the presence of the accused having been secured, accused nos. 1 to 3 had made an application claiming that the witness cited by the prosecution was himself involved in the commission of the offence as an employee of the accused no. 5 and it was he who could be accused of any wrong doing and not accused nos. 1 to 3. The said application was resisted by the present petitioner. However, the court below having accepted the application and directed that CW 1 be made accused no. 7, the said order was questioned before this court. This court having allowed the petition by order dated 28.1.2005, the matter was carried to the apex court by accused no. 1 to accused no. 3 and the apex court in turn, placing reliance on a decision in Dharam Pal and Others Vs. State of Haryana and Another, , has opined that though the tenor of section 319 of the Code of Criminal Procedure, 1973 would indicate that the court is enabled to make a person an accused if from the evidence on record it is possible that he may have had any role in the commission of the offence which is under trial, the court may make him an accused. However, the apex court in Dharam Pal, having opined that acting u/s 319 of the Cr.PC, the Court of Sessions, can, at any time, make a person as an accused. The Supreme Court has remanded the matter for a fresh consideration by this court.

The learned Counsel for the petitioner would now contend that the evidence of CW. 1 was crucial to the case of the prosecution as the entire allegations can be brought home on the basis of his testimony. Therefore, it is suggested that it is for this reason that the accused have sought a witness to be made as an accused and therefore, the teeth of the prosecution is removed and that the charges against the accused may not be established in the absence of evidence of CW. 1. Hence, the learned Counsel would submit that unless there were circumstances, which may be apparent on record, as the matter was at its initial stage, where charges were yet to be framed, the court below proceeding on the basis of the application filed by accused nos. 1 to 3, was not sufficient for the court to form an opinion that CW. 1 was also an accused and hence, would submit that the said order jeopardizes the case of the prosecution and therefore ought to be set aside.

It is noticed that in view of the judgment of the Supreme Court in Dharam Pal, if the court is empowered to exercise power u/s 319 of the CrPC, at any stage of the proceedings, it becomes difficult to go behind that process of the court in having formed an opinion that a person could be made an accused. If on the allegations of accused nos. 1 to 3, the court has indeed formed an opinion that there was sufficient material to hold that the witness CW. 1 can be made as accused no. 7 in the case on hand, the only avenue open to the prosecution would be to invoke Section 307 CrPC and it is still possible for the court to exercise its power in accordance thereof. For the object of Sections 306 and 307 CrPC is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned, the offence could be brought home to the rest. (See. State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, ). The policy is to prevent the escape of offenders from punishment in grave cases for lack of evidence by grant of pardon to accomplices for obtaining true evidence. As could be seen from Sub-section (2) of Section 306 of the CrPC, one class of cases to which the section applies is in respect of cases pending before a Special Judge appointed under a special law. Since the present case is one such, it is open for the prosecution to invoke such Sections 306 to 308 of the CrPC, in order that they may bring home the charges against the other accused. It is therefore for the petitioner to make an appropriate prayer before the court below in this direction notwithstanding that CW. 1 has been made an accused in the present case on hand.

With that observation, the petitioner stands disposed of.