Sajid Chandanwala vs State of M.P.

S.L. Kochar, J.—This revision has been directed by the applicant against the order dated 9-3-2002, passed by learned VIIIth Additional Sessions Judge, Indore, in Session Trial No. 107/2001, allowing the application filed by the other accused persons u/s 319 of the Code of Criminal Procedure for impleading the applicant as accused on the ground that in the First Information Report as well as in the statement given by the witnesses before the police (under Section 161 of Cr.PC), the witnesses have named the applicant. Thereafter one eye-witness Hafiz s/o Abdul Shakur (P.W. 11), examined on 15-2-2002, has also stated the name of the applicant in Paragraph 3 as one of the participants in the alleged incident of commission of murder of Mohammad Rafiq. In cross-examination done by the Counsel for the other accused persons, in Paragraph 6 he has stated as under:--

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In view of the statement of eye-witness Hafiz, the learned Trial Court has invoked the provision u/s 319 of Cr.PC and issued warrant of arrest against applicant Sajid Chandanwala. This is the impugned order before this Court under challenge.

The learned Counsel for the applicant submitted that without cross-examination the statement of Hafiz (P.W. 11) cannot be regarded as evidence, as contemplated in Section 319 of Cr.PC, for invoking this provision to array the applicant as accused by the Trial Court. The learned Dy. Advocate General Shri Desai has placed reliance in a judgment of Supreme Court Rakesh and Another Vs. State of Haryana, , the Supreme Court ruled out that a person can be added as an accused on the basis of the statement given by the witness or witnesses in examination-in-chief. Cross-examination of the witness is not necessary prior to the addition of any other person as accused on the basis of evidence of such witness. Opportunity to cross-examine the witness would be available to such person at the time of trial. In the present case, witness Hafiz was not only examined by the prosecution, but he was also cross-examined by other witnesses. Obviously, the present applicant will get the opportunity of cross-examination after his appearance.

Learned Counsel for the applicant has placed reliance on a judgment rendered by Supreme Court in Michael Machado and Anr. v. Central Bureau of Investigation and Anr. 2000(2) Crimes 23. In this judgment the Supreme Court has held that at a belated stage the Court should be cautious to invoke the provision u/s 319 of Cr.PC for impleading any other person or persons as accused. The Supreme Court has also held that this provision is not mandatory, and Court should exercise discretion when there must be reasonable prospect of conviction of the said newly arrayed accused. Merely on the statement of witness which created some suspicion against the said accused, he should not be made accused as per provision u/s 319 of Cr.PC.

There is no dispute about this legal position but in the facts and circumstances of the present case, the Hafiz (P.W. 11) is the eye-witness of the incident cited as witness right from the beginning, as per charge-sheet filed by the police u/s 117 of Cr.PC. In examination-in-chief as well as in cross-examination he has made a positive statement against the present applicant. Now, as argued by the learned Counsel for the applicant, this Court is also considering the background of this present case from deleting the name of present applicant from the list of the accused persons i.e., the witnesses had submitted some application and affidavits controverting their previous statement given u/s 161, Cr.PC as well as the First Information Report saying that in all these statements and the FIR, they did not name the present applicant as one of the participants in the alleged incident of murder of Mohammad Rafiq. But all these documents have not been filed along with the charge-sheet and when the applicant will appear in the Trial Court, he will have opportunity to call those documents as per provision available in the Cr.PC and confront those witnesses. Thereafter it will be for the Trial Court to evaluate and appreciate the evidence on record. The question involved in the present case is whether the statement of prosecution witness in the Trial Court after giving opportunity to the applicant would be accepted or not, is a matter of consideration at the time of final adjudication of the case. At present there appears to be sufficient material on record to implead the present applicant as accused. Therefore, this revision is dismissed having no substance. However, it is made clear that any observation passed in this order shall not prejudice the case of the either side and while considering the matter at the final stage, Trial Court should not consider any observation made by this Court in the present case.