RATAN DASHRATH KIRATKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the order dated 17-10-2007, passed by the Ad hoc Additional Sessions Judge, Akot, Distict : Akola, rejecting the application (Exh.61) in Special Case No. 6/2005, filed by the applicant/accused for issuing accused summons to respondent No. 2, the present application was filed.

(2.) In support of -the application, learned Counsel for the applicants vehemently argued pointing out my attention to F.I.R. that there is clearB allegation in the F.I.R. by the complainant against respondent No. 2 that he had demanded gratification of Rs. 200/- on more than one occasion from the complainant. Though according to him the prosecution has alleged that it is the applicant constable, who had accepted this amount of Rs. 200/- and the F.I.R. does not disclose that respondent No. 2 had accepted that gratification, since making demand itself is an offence under section 7 of the Prevention of Corruption Act, 1988, the Court was obliged to issue accused summons to respondent No. 2. He then submitted relying on the decisions of the Supreme Court in the case of Kishun Singh and others vs. State of Bihar, 1993 2 SCC 16, Nisar and another vs. State of U.P., 1995 2 SCC 23 and Rashmi Kumar (Smt) vs. Mahesh Kumar Bhada, 1997 2 SCC 397 that after committal of a case to the Sessions Court even before the stage of trial reaches, such Sessions Court/Special Court has a power to issue accused summons to a person not named in the charge-sheet by the investigating machinery and therefore, the Court ought to have exercised its power under section 193 of the Code of Criminal Procedure in view of the involvement of respondent No. 2 at least in so far as demand of gratification of Rs. 200/- is concerned, which has been made an offence under section 7 of the Prevention of Corruption Act.

(3.) Per contra, learned Counsel for respondent No. 2 vehemently opposed the application and argued that there is no power in the Court to issue accused summons before commencement of trial before the committal of the case to the Sessions Court/Special Court to be found in the Code of Criminal Procedure. The only power according to learned Counsel for respondent No. 2 is to be found in the section 319 of the Code of Criminal Procedure but the exercise of such power can be made only after the trial commences and not before and that too when in the trial the prosecution witness/witnesses or other evidence disclose complicity of such person who was not named in the charge-sheet. Learned Counsel for respondent No. 2 submits that admittedly there is no allegation of acceptance of bribe by respondent No. 2 but the acceptance is by the applicant as per the prosecution case and therefore, even on merits no such accused summons could have been issued and thus he supported the impugned order.