KRISHNA PARASHARAM KAREKAR Vs. STATE

JUDGEMENT

(1.) THIS is an application by the petitioner who was cited as a witness in Criminal Case No. 606/75 pending before the Judicial Magistrate, First Class, Radhanagari, District Kolhapur, and who has been directed to be made an accused by adding his name to the charge -sheet. Being aggrieved by that order of the learned Magistrate, he filed a revision application before the learned Sessions Judge, Kolhapur. The learned Sessions Judge took the view that this was an interlocutory order and he had no right to interfere at that stage. Being aggrieved he filed this application.

(2.) HAVING gone through the order of the learned Magistrate and the provisions of Section 319 of the Code of Criminal Procedure, 1973, we are satisfied that the entire procedure adopted by the learned Magistrate is misconceived. The undisputed facts are that the present petitioner was cited as a witness in Criminal Case No. 606 of 1975 in which there were three accused persons. A charge has been framed against those three persons and the case was fixed for leading evidence to February 2, 1975. On that day the Assistant Public Prosecutor filed an application exh. 18 before the trial Magistrate and requested him to include the name of the present petitioner as an accused person, as he had purchased some of the stolen property. Though that application was opposed, by short order the learned Magistrate directed his name to be included in the charge -sheet. The operative part of his order says that he saw the panchnama and the police statement of witness Vasant Phondiram Jadhav. From those documents he was satisfied that there was evidence against Krishna Parshuram Karekar for receiving stolen articles under Section 411, Indian Penal Code. Hence he was directed to be impleaded as an accused person.

(3.) ON a plain reading of this provision it would appear that the Court can proceed against any person while it is in the midst of an inquiry or trial. The second condition requisite is that in such an inquiry or trial it must appear to the Court from the 'evidence' before it that the person concerned needs to be tried as an accused person. The main question is what is 'evidence' so far as the Court holding an inquiry or trial is concerned. If the police collect evidence against a person, they have a right to file a charge -sheet. When they do so and begin to lead evidence before the Court, the evidence led in the Court might disclose that some others have been omitted by the police from being made accused persons though there is evidence available. It is, therefore, clear that it is not the police papers which are available to the Court that constitute 'evidence' for the purpose of this section, but it is the actual evidence led in the Court which should induce the Court to believe that it is necessary to take action under that section. This intention of the Legislature is obvious from the provisions of Clause (a) of Sub -section (4) of Section 319. That provision says that, where the Court proceeds against any person under Sub -section (1) then the proceedings in respect of such person shall be 'commenced afresh, and the witnesses re -heard'. This would clearly show that when the witnesses are heard by the Magistrate that constitutes evidence and it is this evidence which has to be heard by him again in the presence of the added accused after taking action under Sub -section (1) of Section 319.