KAUSHAL KISHORE YADU Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) These two revisions were initially decided by this Court by order dated 03.03.2017 wherein this Court directed for impleadment of respondents 3 to 5 as accused in trial and directed thereafter to proceed further in trial. The said order of this Court was challenged before Hon'ble the Supreme Court by filing Criminal Appeal No. 939-940 of 2017. The Hon'ble Supreme Court by order dated 23rd August 2017 set aside the orders passed by this Court and remanded the case. The Supreme Court observed that the order of High Court was arrived without weighing the interest of justice in having the respondent (appellant therein) as accused instead of their utility as witness and the order was held to be erroneous as it considered there being material against them. It was thereafter observed that while adjudicating afresh the High Court shall not take into account the statements made by the respondents 3 to 5 (who were proposed to be accused) made either under section 161 or 164 of Cr.P.C., 1973 and further will also consider that in view of the fact that since the evidence has already commenced whether the interference should have been made to make the respondent as accused. On such premises the revision has come again here before the High Court for reconsideration afresh

(2.) In order to give a bird's eye view, brief facts would be necessary. The record goes to show that the Anti Corruption Bureau (for short ACB) and Economic Offences Wing (for short EOW) had registered an FIR on 12.2.2015 after conducting a raid in the head office of Chhattisgarh State Civil Supplies Corporation, Raipur, known as Nagrik Aapurti Nigam (for short, NAN) and also at some of the residential premises of the employees and officers of NAN. In such raid, cash amounts were recovered from few of the officers and persons. It is alleged that the said persons along-with other officers of NAN were carrying out organized activities whereby different rice millers were forced to pay the amounts for acceptance of rice for the custom milling by the State otherwise the goods were refused to be accepted by citing various reasons by the officers of the State. After the investigation, 16 persons were charge-sheeted and two officers remained for want of permission of sanction for prosecution. However, it was submitted by the State that subsequent sanction has been granted for prosecution. During the course of trial, accused Kaushal Kishore Yadu who is applicant in Criminal Revision No.403 of 2016 filed application under Sections 193 and 319 of Cr.P.C., and accused Sudhir Kumar Bhole who is an applicant in Cr.Revision No. 484 of 2016 moved an application under section 319 of Cr.P.C., 1973 wherein prayer was made to implead the other persons in the array of accused whose names were initially found in the FIR. The said application was dismissed by the trial Court by order dated 13.04.2016. Against such order the revision was preferred before the High Court. The High Court allowed the revision and directed that Girish Sharma who is respondent No.3, Arvind Singh who is respondent no.4 and Jeet Ram Yadav who is respondent no.5 to be made as an accused and the trial was ordered to be commenced against them. Against such order, the respondent went to Supreme Court and the Supreme Court by its order dated 23rd August, 2017 has set aside such order of the High Court and remanded the revision for fresh adjudication.

(3.) Mr. Surendra Singh, learned Senior Counsel assisted by Mr. Peeyush Bhatia appearing for counsel for the applicant in Cr.R.No. 403/2016 would submit that the evidence in this case would prove that respondents 3 to 5 along-with other accused Shiv Shankar Bhatt are neck deep involved in the offence and further the documents would show that the recovery of money by the arm twisting method started way back in the year 2011. He further referred to the submission made before the Supreme Court that as per the prosecution itself they contended that the prosecution has sufficient material against the proposed accused and they could be separately prosecuted in a separate trial. It is further submitted that even if the cognizance is taken as of now and in case subsequently cognizance is taken after they are made approvers, it will not jeopardize the case of prosecution as the evidentiary value of approver and accomplice would be one and the same. He further submits that since there would be apprehension to prosecute the witness consequently the witness will depose according to the wish and will of the prosecution, as a result, the applicant accused will not get any fair opportunity of trial. However, it is further contended that on the other hand, if the cognizance is taken post pardon, the fear of making a statement in a particular way would not exist, therefore, making them accused would be necessary.