2012 ALL MR (Cri) 2489
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.B. CHAUDHARI, J.
Vikram S/O. Nandkishor Gattani Vs. The State Of Maharashtra & Ors.
Criminal Revision Application No. 68 of 2006
25th March, 2010
Petitioner Counsel: Shri C.S. KAPTAN
Respondent Counsel: Shri D.B. PATEL, APP
Criminal P.C. (1973), Ss.319, 193 - Summoning of additional accused - Though order of Trial Court exercising power under S.319 even before commencement of trial is wrong - But it could be read as one under S.193 - Prima facie evidence against applicant that he received stolen property from accused - Order adding applicant as co-accused for offence under S.411 of Penal Code is proper. (Paras 4, 5)
Kishun Singh and other Vs. State of Bihar, 1993 (2) SCC 16 [Para 4]
JUDGMENT :- This revision application is directed against the order below Exh.22 dated 18.2.2006, passed by the 1st Ad hoc Additional Sessions Judge, Pusad allowing application and adding the applicant as co-accused for the offence under Section 411 of the Indian Penal Code.
2. Learned Counsel for the applicant in support of the application argued that the Court has exercised power under Section 319 of the Code of Criminal Procedure without the trial having commenced and there is no other provision or power in the Court to issue accused summons to the applicant except after commencement of trial. He, therefore, argued that at any rate even on merits there is no material to issue accused summons to the applicant and that is another reason why the applicant should not be asked to face trial.
4. I have gone through the impugned order and I have heard learned Counsel for the applicant for quite sometime. It is seen that the trial Court has exercised power under Section 319 of the Code of Criminal Procedure without commencement of the trial. It has the effect of issuance of accused summons to the applicant. I have no doubt in my mind that the order exercising power under Section 319 of the Code of Criminal Procedure even before commencement of trial is wrong. However, in view of the fact that there is material against the applicant to issue him accused summons and in view of the judgment of the Supreme Court in the case of Kishun Singh and others. Versus.State of Bihar, reported in 1993 (2) Supreme Court Cases 16, the trial Court has power to issue accused summons by taking recourse to Section 193 of the Code of Criminal Procedure even before commencement of trial. I, therefore, hold that in effect the impugned order is correct though exercise of power under Section 319 of the Code of Criminal Procedure is wrong. I, therefore, read the said order as one under Section 193 of the Code of Criminal Procedure and affirm the order regarding issuance of accused summons to the applicant.
5. In so far as merits of the matter is concerned, the trial Court has seen that the applicant himself has given receipt No.108 which shows that M/s Gattani Jewellers purchased 11 golden strips and one golden nose ring, total amounting to Rs.5985/- from principal accused Harishchandra Baliram Rathod on 27.7.2004, which the prosecution alleges was the property of the person murdered by Harishchandra, the principal accused and who committed robbery of the golden articles. This is, therefore, prima facie evidence against the applicant. However, that is a matter of trial. In view of this position, I do not find any merit in the present application. The impugned order will have to be confirmed. In the result, I make the following order.
(i) Criminal Revision Application No. 68/2006 is dismissed.
(ii) The impugned order issuing accused summons to the applicant is read as the one under Section 193 of the Code of Criminal Procedure.
(iii) The applicant shall not be arrested till order on his bail application is made by the trial Court and if the order regarding regular bail goes adverse to the applicant, the same shall not operate for a period of seven days from the date of passing of the order to enable the applicant to take up his remedy available in law.
(iv) The trial Court is directed to decide the Session Trial No.61/2004 as expeditiously as possible and in any case within a period of five months from today.