STATE OF MAHARASHTRA Vs. RAJKUMAR SINGH

JUDGEMENT

(1.) HEARD learned A. P. P. for the State-petitioner on whose behalf the petition is filed and Mr. Y. R. Singh for the accused-respondents. R. P. F. Kurduwadi filed a complaint under section 3-A of the Railway Property (Unlawful Possession) Act originally against three accused. This complaint was filed under section 244 of the Criminal Procedure Code as a case instituted otherwise than on a police report. The trial Magistrate recorded evidence of three witnesses and on application filed by the prosecution issued notice to the present respondents why they should not be joined as accused Nos. 4 to 7 in that case. The accused/respondents appeared before the Magistrate and applied for quashing the notice on the ground that firstly, there was no material in the evidence of the prosecution so as to attract the provisions of section 319 of the Criminal Procedure Code and secondly, on the basis of two rulings of Calcutta High Court and Karnataka High Court, reported in 1987 Cri. L. J. 729 (Gulam Mondal v. Nazam Hossain and others), and Sannarevanappa Bharamajappa Kalal alias Kuncharkar and others v. State of Karnataka, respectively, the Magistrate accepted the contention raised by the respondent/accused and quashed the notice. The complainant/inspector, R. P. F. , Solapur filed a revision before the Additional Sessions Judge, Solapur, but the IIIrd Additional Sessions Judge (S. Y. Padhye) dismissed the revision. The State has, therefore, filed this petition.

(2.) THE learned A. P. P. for the State produced the copies of the statements of three witnesses recorded by the trial Magistrate. These witnesses include one Jogendersing Surajsing Jat, P. W. No. 2 and one Vinod Kumar Khajansingh Choudhari, P. W. No. 3. Both these witnesses are the members of R. P. F. (so also all the respondents/accused are in R. P. F. ). From the evidence of these two witnesses, the learned A. P. P. contended that there was more than sufficient evidence before the Magistrate to issue the notice to the respondent under section 319 of the Criminal Procedure Code. He also contended that the Magistrate did not consider the provisions of sections 244, 245 and 246 of the Criminal Procedure Code and also the provisions of section 319, and wrongly interpreting the case of Karnataka High Court and Calcutta High Court while quashing the notice issued by him. He, therefore, contended that both the orders of the Magistrate as well as the Additional Sessions Judge are liable to be quashed.

(3.) ON the other hand it was contended by advocate for the respondents that it was not open to the trial Court to issue any notice under section 319 of the Criminal Procedure Code on the basis of the statements made by the witnesses before the Magistrate (which, according to the Counsel for the accused, did not amount to evidence. He contended that the evidence meant not only examination-in-chief but also cross-examination and since in the instant case there was no cross-examination of the witnesses, their statements before the Court could not be considered as evidence for invoking the provisions of section 319 of the Criminal Procedure Code. He also placed reliance on both the aforesaid judgments of the Calcutta High Court and Karnataka High Court which were accepted in his favour by the trial Court as well as the Sessions Court. Therefore, according to him, there is no merits in this petition and same is liable to be rejected.