Madan vs State of Rajasthan

Nisha Gupta, J.—This criminal misc. petition U/S. 482 Cr. P.C. has been filed for quashing the order dated 03/01/2014 (Ann. 3) passed by the court of Additional Sessions Judge, Neem Ka Thana, District Sikar in Sessions Case No. 14/2011 by which, the court below has allowed the prosecution to produce statements of the witnesses recorded after filing of the charge-sheet against accused-petitioner.

The short facts of the case are that FIR has been lodged against the petitioner for offence U/Ss. 147, 148, 323, 302 and 149 IPC. After investigation, charge-sheet has been filed against the petitioner and it has been committed to the court of sessions and trial was going on. Thereafter, statements of some of the witnesses have been recorded to implicate other accused-persons in the case and an application has been moved before the court below by the complainant to call the statements of the witnesses and site-plan, which has been prepared after the charge-sheet has been filed against petitioner.

Contention of the counsel for the petitioner is that order of this Court dated 19/03/2013 by which the police was directed to file charge-sheet against remaining nine accused persons and to arrest them has been stayed by the Apex Court and without bringing the order of the Apex Court into the notice of this Court, further order has been obtained on 13/12/2013 to file the final opinion within fifteen days and the contention of the counsel for the petitioner is that when the order dated 19/03/2013 has been stayed, investigation carried on in compliance of that order could not be called upon or looked into by the court below as the Apex Court has stayed the order and the complainant is playing game committing fraud with the court and had obtained the order dated 13/12/2013. Further contention of the counsel for the petitioner is that application has not been filed on behalf of the prosecution and it could not be entertained and the further contention of the counsel for the petitioner is that when charge-sheet has been filed against petitioner, any investigation done after that could not be called upon.

Per contra, the contention of the counsel for the complainant is that vide order dated 19/03/2013, the court has not ordered for any investigation but only ordered for submission of the charge-sheet and arrest of the other accused persons, which order has been stayed by the Apex Court but has not wiped out the investigation, which has been carried. The Public Prosecutor has also supported this application as the contention of the State is that after examining the statements of the witnesses, it will be decided that whether witnesses should be called upon or not. In fact, it is an innocuous order, which not in any way is prejudicial to the interest of the petitioner. The police is competent to further investigate the matter under the provisions of Section 173(8) Cr. P.C. after filing of the report U/S. 173(2) Cr. P.C. and no fault can be found with the order and the petition be dismissed.

Heard counsel for the parties and the Public Prosecutor and perused the impugned-order as well as the other orders referred to by the counsel for the parties.

The order dated 19/03/2013 speaks that a direction has been given to the police to submit charge-sheet against remaining nine accused persons within a period of three weeks and also to take concrete steps against them to apprehend them and admittedly, this order has been stayed by the Apex Court but further investigation, which has been carried over the period has not been wiped out by the Apex Court and looking to the provisions of Section 173(8) Cr. P.C., the police is competent to further investigate the matter even after filing of the charge-sheet and when any additional evidence has been collected, it is in the fitness of the things that it should also be considered and application of the nature, which has been moved by the complainant with the support of the Public Prosecutor, has rightly been allowed by the court below.

Contention of the counsel for the petitioner is that application has not been filed on behalf of the Public Prosecutor hence, it could not be entertained and reliance has been placed on the judgment of the Supreme Court in Sundeep Kumar Bafna Vs. State of Maharashtra and Another, and referred para 25, which reads as under:-

"25. The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the Trial so that his interests in the prosecution are not prejudiced or jeopardized. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likely to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing. Reverting to the case in hand, we are of the opinion that the complainant or informant or aggrieved party who is himself an accomplished criminal lawyer and who has been represented before us by the erudite Senior Counsel, was not possessed of any vested right of being heard as it is manifestly evident that the Court has not formed any opinion adverse to the prosecution. Whether the Accused is to be granted bail is a matter which can adequately be argued by the State Counsel. We have, however, granted a full hearing to Mr. Gopal Subramanium, Senior Advocate and have perused detailed Written Submissions since we are alive to impact that our opinion would have on a multitude of criminal trials."

A bare reading of the above goes to show that the complainant cannot interfere in the conduct of the case by the prosecution and the Public Prosecutor is only the controller of the prosecution but at the same time, complainant or informant or aggrieved party has a right to hearing as he is the ultimate aggrieved person. Here in the present case, the application has been filed on behalf of the complainant but it has been supported by the contention of the Public Prosecutor as he has contended before the court below that after examining the statements of the witnesses, it will be decided that whether they have to be shown as prosecution witnesses or not, which clearly shows that for all the practical purposes, application has been filed also on behalf of the Public Prosecutor and objection of the petitioner is not maintainable.

The contention of the counsel for the complainant is that looking to the provisions of Section 231 Cr. P.C., prosecution is entitled to produce any witness even, who has not been named in the charge-sheet and here in the present case, further investigation has been done in the matter and statements of some of the witnesses have been recorded and the court has ordered only to call for that witnesses and the order is in right exercise of the powers vested in the trial court and reliance has been placed on the judgments of the Supreme Court in Rama Chaudhary Vs. State of Bihar, and Vinay Tyagi Vs. Irshad Ali @ Deepak and Others, , wherein in para 13, it has been held by the Supreme Court, as under:-

"13. The provisions of Section 156(3) empower the Magistrate, who is competent to take cognizance in terms of Section 190, to order investigation as prescribed under Section 156(1) of the Code. Section 190 provides that subject to the provisions of Chapter XIV of the Code, any Magistrate of the First Class and any Magistrate of the Second Class specifically empowered in this behalf may take cognizance of any offence upon receipt of a complaint, facts of which constitute such offence, upon a police report of such facts or upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The Chief Judicial Magistrate is competent to empower any Magistrate of the Second Class to take cognizance in terms of Section 190. The competence to take cognizance, in a way, discloses the sources upon which the empowered Magistrate can take cognizance."

In the light of the above, the court below was justified in calling the statements of the witnesses, which have been recorded after filing of the charge-sheet and site-plan and no fault can be found in the order of court below and hence, this petition U/S. 482 Cr. P.C. is liable to be dismissed.

In the result, this petition U/S. 482 Cr. P.C. fails and it is hereby dismissed accordingly.