BHAGAT DOLIA Vs. STATE

JUDGEMENT

(1.) THE above criminal miscellaneous petition has been preferred against the order of the Special Judge (Chief Judicial Magistrate), Chingleput, refusing to transpose a prosecution witness, Srinivasan, as an accused and to face trial along with the other 4 accused charge-sheeted in the case. The brief facts, which require to be noticed in connection with the petition, are as stated below:

(2.) AN Assistant Engineer and a Junior Engineer attached to the Ennore Thermal Station, who are accused 1 and 2 in the case, and the petitioners herein, who are accused 3 and 4, are alleged to have entered into a criminal conspiracy to commit various offences, such as, cheating, forgery, using as genuine the forged document and acts of corruption punishable under the Prevention of Corruption Act, The gravamen of the charge is that the petitioners who were running a concern dealing in electrical goods, joined accused 1 and 2 and prepared bogus tenders, so that eventually the tender of the petitioners, which would always be the lowest, would be accepted and orders placed with them for the supply of electrical goods to the Thermal Scheme at Ennore. In the trial of the case, one Srinivasan, who was the typistcum-clerk in the concern of the petitioners, was examined as the 12th witness for the prosecution. He gave evidence stating that on the directions of the first petitioner, he prepared tenders in the name of the different concerns and he signed some of those tenders to make it appear that the tenders have been signed by the proprietors or Managers of those respective concerns, Numerous instances were given by P. W, 12 about the preparation of false and bogus tenders. After his evidence had been substantially recorded, the petitioners moved the Special Judge for arraying Srinivasan also as an accused in the case or in the alternative not to examine him unless pardon had been granted to him. The request was made on the basis that on his own evidence Srinivasan had shown himself to be a forgerer and thus an accomplice to the crime. The learned Magistrate did not accept the contention of the Petitioners and dismissed the petition. Hence, the petitioners have come to this Court to canvass the correctness of the order of the Special Judge.

(3.) SECTION 351 of the Criminal Procedure Code, 1898, reads as follows: 351 (1) Any person attending a Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. (2) When the detention takes place in the course of an inquiry under Chapter XVII or after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witness re-heard. Prom a reading of this Section it is clear that after a Court has taken cognisance of an offence, it has power in it to detain any person attending the Court either as a witness or as an observer and have him also arrayed as an accused in a case already taken up on file. Where recourse is had in respect of one or more persons under Subclause (1) of Section 351, Sub-clause (2) lays down that when the enquiry or trial had already begun, the proceedings in respect of the newly arrayed accused should be commenced afresh and the witnesses re-heard. It is on the basis of Section 351 (1), the petitioners contend that the witness, Srinivasan should also be made an accused in the case and the trial proceeded de novo.