SANTOSH KUMAR NANDE Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Learned State counsel submits that he does not want to file any reply as all the relevant documents are on record.

(2.) One Tirith Bai, holding savings account in State Bank of India, branch-Jaijaipur lodged a report in the police station alleging that on approaching the bank on 16-2-05 for withdrawing Rs. 40,000/- from her bank account, she came to know that there was no balance of Rs. 40,000/- and that on 14-1-05, an amount of Rs. 1,10,000/- withdrawn from her bank account. The complaint of Tirith Bai is that she did not go to the bank on that day nor withdrawn any amount and that the officers and employees of the bank have fraudulently withdrawn the amount from her account. When the police did not register any offence, Tirith Bai filed an application before the Magistrate for issuance of direction for investigation under Section 156 (3) CrPC. On direction issued by the Magistrate, police station-Jaijaipur registered offence under Section 420, 467 and 468 of IPC against one Kiran Kumar. After the charge sheet was filed, charges were framed against Kiran Kumar, the petitioner was sited as prosecution witness along with some other prosecution witnesses i.e. Complainant-Tirith Bai, Harish Kumar Chaudhary, Radha Bai and Subhash Kumar. At that stage, the accused Kiran Kumar moved an application under Section 319 of CrPC for impleading the petitioner and Harish Kumar Chaudhary as accused before the Court. Vide order dated 11-10-07, the learned trial Court allowed the application under Section 319 CrPC directing impleadment of the petitioner and Harish Kumar Chaudhary as accused in the case. Aggrieved by the said order, the petitioner preferred a revision which has been dismissed.

(3.) Learned counsel for the petitioner contended that the petitioner has been impleaded as accused without affording him any opportunity of hearing, without availability of material evidence that he, in any manner, was involved along with other accused-Kiran Kumar in commission of alleged offence. He submits that the conduct of the petitioner right from the beginning, when it was found that money has been withdrawn from the account of Tirith Bai shows that he had no role to play because it was the petitioner who had written to the higher authorities and had given notice to Kiran Kumar and instrumental in ensuring that the entire amount is deposited in the account of Tirith Bai. He further submits that the powers under Section 319 CrPC could not have exercised as a matter of course but the same is to be exercised under extra ordinary circumstances and for compelling reasons. Learned counsel for the petitioner submits that the evidence of the petitioner, who appears as witness, could not be used to incriminate him against himself and except his own evidence, there is no incriminating material brought about in the evidence of other witnesses to show that the petitioner is also involved in the commission of offence warranting his impleadment as accused. In support of his submission, learned counsel for the petitioner relies upon the decision in the case of M.P. Gangadharan v. State S.I. of Police, 1989 CrLJ 2455, Michael Machado and another v. Central Bureau of Investigation and another, 2000 AIR(SC) 1127 and Mohd. Shaft v. Mohd. Rafiq and another, 2007 CrLJ 3198.