MCRC/25409/2023 of PRADEEP BAFNA Vs THE STATE OF MADHYA PRADESH on 5 February 2024

O R D E R

01]This petition has been filed by the petitioners under Section482 of Cr.P.C. against the order dated 11.03.2023, passed in S.T.No.52/2021 by First Additional Sessions Judge, Jaora District Ratlam(M.P) wherein the two persons are facing trial under Sections 376(2)(n), 450, 385, 506, 328, 411, 420, 120-B, 354 (G), 201, 176 of IPCand Section 66-E of the Information & Technology Act, 2000.

02]The allegations against the petitioners are that they happen tobe the mother and father of the main accused Nishit @ Mayur andthey were proceeded under Section 319 of the Cr.P.C. as theapplication was filed by the respondent/prosecution under Section 319of the Cr.P.C. that the petitioners be also prosecuted in the saidoffence. The application was filed on 11.03.2023, when the matterwas already fixed for cross-examination of the prosecution witnesses,and on the same day, it was allowed and the charges were alsoframed, and the petitioners were asked to cross-examine the accusedpersons. Against the petitioners, charges under Sections 385, 506-IIr/w Section 120-B of the IPC has been framed. Thus, the mainallegation is of extortion.

03]Counsel for the petitioners have submitted that the aforesaidmode adopted by the trial Court runs contrary to the criminaljurisprudence as it was necessary for the trial Court to furnish thecopy of the charge-sheet to the petitioners. It is also submitted thateven assuming the statements of the witnesses to be correct, there is almost no chance that the prosecution would be able to prove theinvolvement of the present petitioners in the case as their names hasnot been mentioned by the prosecutrix in the FIR and also in herstatement recorded under Section 161 of the Cr.P.C.

04]Counsel for the petitioners further submitted that prosecutrix'sstatement under Section 161 of the Cr.P.C. was recorded on24.08.2021 and thereafter supplementary statement was recordedunder Section 164 of the Cr.P.C. dated on 01.11.2022 but she has notstated that the present petitioners were involved in any manner. Insupport of his contention, Shri Baheti has also relied upon thedecision of Supreme Court in the case of Michael Machado AndAnother vs. Central Bureau of Investigation and Another, reportedin 2000 (2) Crimes 23 (SC).

05]On the other hand, counsel for the respondent/State hasopposed the prayer and submitted that no case for interference ismade out as the prosecutrix has clearly stated in her statementrecorded under Section 164 of the Cr.P.C. on 01.11.2022, that thepresent petitioners who are the parents of the main accused were alsoinvolved in the crime as they also knew about the prosecutrix wasbeing raped and blackmailed by the main accused but they kept mum.It is also submitted that the prosecutrix, in her court deposition dated01.11.2022, has also stated that the parents of the main accused werealso involved in the crime. Thus, it is submitted that the trial Courthas rightly invoked the provisions of Section 319 of the Cr.P.C. Insupport of his contention, learned counsel for the respondents has also placed reliance upon the judgment passed by the Apex Court in thecase of Yashodhan Singh vs. The State Of Uttar Pradesh (CriminalAppeal No.2186/2023 (@ Special Leave Petition (Crl.)NO.6262/2023)decided on 18.07.2023 reported as (2023)9SCC108.

06] Heard. From the perusal of the record, this Court finds itrather shocking that not only the entire procedure as prescribed underSection 319 of the Cr.P.C. was conducted on 11.3.2023, but even thepetitioners were directed to appear on the same day, their bailapplications were allowed on the same day, and charges were framedon the same day i.e. on 11.3.2023, and they were also directed tocross examine the witnesses present. Although an option was given bythe learned Judge of the trial court to re-call the witnesses alreadyexamined as their examination in chief was already conducted, hence,counsel for the petitioners has given the consent to re-examine themon the same day.

07] Be that as it may, this Court is also required to examinewhether prima-facie, any case is made out against the petitioners ornot?

08] At this juncture, it would be apt to refer to the decision reliedupon by Shri Baheti in the case of Michael Machado v. CBI, (2000),the relevant paras of the same read as under:- “10. Powers under Section 319 of the Code can be invoked inappropriate situations. This section is extracted below:appropriate situations. This section is extracted below:

“319. Power to proceed against other personsappearing to be guilty of offence.—(1) Where, in thecourse of any inquiry into, or trial of, an offence, itappears from the evidence that any person not beingthe accused has committed any offence for whichappearing to be guilty of offence.—(1) Where, in thecourse of any inquiry into, or trial of, an offence, itappears from the evidence that any person not beingthe accused has committed any offence for which such person could be tried together with the accused,the court may proceed against such person for theoffence which he appears to have committed.

(2) Where such person is not attending the court,he may be arrested or summoned, as thecircumstances of the case may require, for thepurpose aforesaid.

(3) Any person attending the court, although notunder arrest or upon a summons, may be detained bysuch court for the purpose of the inquiry into, or trialof, the offence which he appears to have committed.

(4) Where the court proceeds against any personunder sub-section (1) then—

(a) the proceedings in respect of such personshall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a),the case may proceed as if such person had beenan accused person when the court tookcognizance of the offence upon which theinquiry or trial was commenced.”

11. The basic requirements for invoking the above sectionis that it should appear to the court from the evidencecollected during trial or in the inquiry that some otherperson, who is not arraigned as an accused in that case, hascommitted an offence for which that person could be triedtogether with the accused already arraigned. It is not enoughthat the court entertained some doubt, from the evidence,about the involvement of another person in the offence. Inother words, the court must have reasonable satisfactionfrom the evidence already collected regarding two aspects.First is that the other person has committed an offence.Second is that for such offence that other person could aswell be tried along with the already arraigned accused.

12. But even then, what is conferred on the court is only adiscretion as could be discerned from the words “the courtmay proceed against such person”. The discretionary powerso conferred should be exercised only to achieve criminaljustice. It is not that the court should turn against anotherperson whenever it comes across evidence connecting thatother person also with the offence. A judicial exercise iscalled for, keeping a conspectus of the case, including thestage at which the trial has proceeded already and thequantum of evidence collected till then, and also the amountof time which the court had spent for collecting such evidence. It must be remembered that there is no compellingduty on the court to proceed against other persons.

13. In Municipal Corpn. of Delhi v. Ram Kishan Rohtagi[(1983) 1 SCC 1:1983 SCC (Cri) 115] this Court has strucka note of caution, while considering whether the prosecutioncan produce evidence to satisfy the court that the otheraccused against whom proceedings have been quashed orthose who have not been arrayed as accused, have alsocommitted an offence in order to enable the court to takecognisance against them and try them along with the otheraccused. This was how learned Judges then cautioned: (SCCp. 8, para 19)

“But, we would hasten to add that this is reallyan extraordinary power which is conferred on thecourt and should be used very sparingly and only ifcompelling reasons exist for taking cognisanceagainst the other person against whom action has notbeen taken.”

14. The court while deciding whether to invoke the powerunder Section 319 of the Code, must address itself about theother constraints imposed by the first limb of sub-section(4), that proceedings in respect of newly-added persons shallbe commenced afresh and the witnesses re-examined. Thewhole proceedings must be recommenced from thebeginning of the trial, summon the witnesses once again andexamine them and cross-examine them in order to reach thestage where it had reached earlier. If the witnesses alreadyexamined are quite large in number the court must seriouslyconsider whether the objects sought to be achieved by suchexercise are worth wasting the whole labour alreadyundertaken. Unless the court is hopeful that there is areasonable prospect of the case as against the newly-broughtaccused ending in being convicted of the offence concernedwe would say that the court should refrain from adoptingsuch a course of action.”

(emphasis supplied)

09]On perusal of the charge sheet, it is found that in the FIR, whichwas lodged by the prosecutrix on 29.7.2021, in respect of the incident,which took place between 01.03.2019 to 15.7.2021, only Nishit @Mayur Bafna has been named as an accused along with one unknown person. The aforesaid FIR was lodged on a written complaint madeby the prosecutrix herself, and neither in the written complaint nor inthe FIR, there is any reference of the present petitioners as the personswho have also threatened the prosecutrix and connived at the offencecommitted by their son. Although it is mentioned in the writtencomplaint that Nishit @ Mayur Bafna and the other person areresponsible for the offence however, there is no reason for this Courtto believe that the complainant/prosecutrix would miss the names ofthe present petitioners while lodging the FIR, especially when theyare the father and mother of the main accused Nishit @ Mayur Bafna.Thus, the FIR was lodged on 29.7.2021, but the names of the presentpetitioners came into light for the first time on 30.07.2021, in thestatement recorded by the prosecutrix under Section 164 of theCr.P.C., and in her court deposition dated 01.11.2022 she has alsostated that the present petitioners demanded money and jewelry fromher. It is also found prior to that, in her statement under Section 161of the Cr.P.C. were recorded on 29.7.2021 and thereafter hersupplementary statement was recorded24.8.2021, and the prosecurtixhas not named the present petitioners in both her 161 statements, andin the supplementary statement, in which she has only stated that themain accused Nishit’s friends and family members used to come totake jewelry.

10] A perusal of the charge sheet also reveals that admittedly, noincriminating material has been seized from the present petitioners. Insuch facts and circumstances of the case, the petitioners appear to have been arraigned as accused only because they happen to be thefather and mother of the main accused.

11] In the considered opinion of this Court, merely because thecomplainant/prosecutrix has named the petitioners in her statementunder Section 164 of the Cr.P.C. dated 01.11.2022, as also in the trialcourt in her deposition dated 24.8.2021, in the absence of their namesbeing disclosed in the FIR dated 29.7.2021,which was lodged on thebasis of a written complaint submitted by the prosecutrix on the sameday, which was already delayed by around 2 and half years, and in herstatement recorded under Section 161 of the Cr.P.C. dated 29.07.2021and supplementary statement dated 24.8.2021, the prosecutrix hasalso not named of the petitioners, it is difficult to assume that thepetitioners were also involved in the present case.

12] This Court is cognizant of the fact that it is a trite law that theFIR is not an encyclopedia, however, considering the fact that there isa general tendency of a victim of crime to implicate all the familymembers of the main accused in order to settle the personal score, thisCourt is also required to look into the matter from the perspective of areasonable man, as to how he would have behaved or acted in thegiven circumstances, and thus, seen from the said perspective, it isdifficult for this court to assume that when the crime is said to havecommitted during the period of around two and a half years, whilelodging the written complaint, the proseutrix would miss the names ofthe petitioners who are none other than the parents of the mainaccused, and from whom no recovery has also been made. In such circumstances, in the considered opinion of this court, it is difficult toarrive at a satisfaction that the petitioners have committed the offence.

13] Resultantly, the impugned order dated 11.3.2023 cannot besustained in the eyes of law and is hereby quashed. Theconsequential proceedings so far as they relate to the presentpetitioners in Sessions Trial No.52/2021 before the First AdditionalSessions Judge, Jaora, District-Ratlam (M.P.) are also hereby quashedand the petitioners are discharged from the aforementioned offences.

14]So far as the case of Yashodhan Singh (supra) is concerned, thesame is distinguishable on facts as in that case, the challenge wasmade on the ground that the accused was not heard before thecognizance u/s.319 of Cr.P.C. was taken by the trial court, and theSupreme Court held that there is no necessity to give any notice to theaccused.

15] So far as the other accused persons are concerned, the trialcourt shall proceed against them in accordance with law.

allowed.With the aforesaid, the present petition stands (SUBODH ABHYANKAR)

J U D G E

vs/moni