Ratan Kiratkar vs State of Maharashtra and Pralhad Pundlik Pethe

A.B. Chaudhari, J.—Being aggrieved by the order dated 17.10.2007, passed by the Ad hoc Additional Sessions Judge, Akot, Distict : Akola, rejecting the application (Exh.61) in Special Case No. 6/2005, filed by the applicant/accused for issuing accused summons to respondent No. 2, the present application was filed.

In support of the application, learned Counsel for the applicant vehemently argued pointing out my attention to F.I.R. that there is clear allegation in the F.I.R. by the complainant against respondent No. 2 that he had demanded gratification of Rs. 200/- on more than one occasion from the complainant. Though according to him the prosecution has alleged that it is the applicant constable, who had accepted this amount of Rs. 200/- and the F.I.R. does not disclose that respondent No. 2 had accepted that gratification, since making demand itself is an offence u/s 7 of the Prevention of Corruption Act, 1988, the Court was obliged to issue accused summons to respondent No. 2. He then submitted relying on the decisions of the Supreme Court in the case of Kishun Singh and Others Vs. State of Bihar, , Nisar and Another Vs. State of U.P., and Rashmi Kumar (Smt) Vs. Mahesh Kumar Bhada, that after committal of a case to the Sessions Court even before the stage of trial reaches, such Sessions Court/Special Court has a power to issue accused summons to a person not named in the chargesheet by the investigating machinery and therefore, the Court ought to have exercised its power u/s 193 of the Code of Criminal Procedure in view of the involvement of respondent No. 2 at least in so far as demand of gratification of Rs. 200/- is concerned, which has been made an offence u/s 7 of the Prevention of Corruption Act.

Per contra, learned Counsel for respondent No. 2 vehemently opposed the application and argued that there is no power in the Court to issue accused summons before commencement of trial before the committal of the case to the Sessions Court/Special Court to be found in the Code of Criminal Procedure. The only power according to learned Counsel for respondent No. 2 is to be found in the Section 319 of the Code of Criminal Procedure but the exercise of such power can be made only after the trial commences and not before and that too when in the trial the prosecution witness/witnesses or other evidence disclose complicity of such person who was not named in the chargesheet. Learned Counsel for respondent No. 2 submits that admittedly there is no allegation of acceptance of bribe by respondent No. 2 but the acceptance is by the applicant as per the prosecution case and therefore, even on merits no such accused summons could have been issued and thus he supported the impugned order.

The legal issue which arises in the instant case is as to the power of Sessions Court/Special Court to issue accused summons prior to the commencement of trial. The issue is no more res integra and has been set at rest by the Hon''ble Supreme Court in the case of Kishun Singh and Ors. v. State of Bihar (supra). It has been held in the said decision that Section 193 in the old Code of Criminal Procedure had the words "unless accused has been committed to it". While Section 193 in the new Code of Criminal Procedure has the words "unless the case has been committed to it". The Supreme Court, therefore, found that the legislature intentionally substituted the words ''accused has been committed'' by the words ''case has been committed''. It is on the basis of this amendment to Section 193 in the new Code of Criminal Procedure, the Supreme Court held that there is power in the Sessions Court/Special Judge to issue accused summons u/s 193 of the Code of Criminal Procedure even if chargesheet does not disclose the name of such person but the materials in the chargesheet disclose commission of offence by such person who was not named in the chargesheet. This decision of the Supreme Court was then followed in the subsequent judgments, which I have quoted above. This being the correct legal position, submission made by learned Counsel for respondent No. 2 cannot be accepted.

I have perused the F.I.R., which shows that there is allegation against respondent No. 2 that on the date of incident the applicant as well as respondent No. 2 both had demanded gratification of Rs. 200/- and even thereafter such demand was made by both of them. However, there is no allegation that the amount of Rs. 200/- was accepted by respondent No. 2, though there is allegation that amount of Rs. 200/- was paid to the applicant. Perusal of Section 7 of the Prevention of Corruption Act, however, shows that even an attempt to ask for gratification is an offence. In view of this position, though there is no allegation that respondent No. 2 had accepted gratification of Rs. 200/- the allegation about demand is certainly made and therefore, Court below ought to have allowed application in question i.e. (Eh.61).

In the result, I make the following order.

ORDER

(i) Criminal Application is allowed.

(ii) The impugned order dated 17.10.2007, passed by the Ad hoc Additional Sessions Judge, Akot, Distict : Akola below application (Exh.61) in Special Case No. 6/2005 is quashed and set aside. Application (Exh.61) is allowed.

(iii) The trial Court shall now proceed in accordance with law.