RAWOOF PATEL Vs. STATE

JUDGEMENT

(1.) The petitioners' question the order passed by the Court below in Crl.R.P. No. 466 of 1994 in Sessions Case No. 131 of 1993. The petitioners are sought to be impleaded as A-2 and A-3 in the case. Originally A-1 was the sole accused. During the course of the trial in the evidence of PW-2, one Shahjahan Patel (A-3), son of PW-1 and PW-1 were alleged to have committed the offence under Section 302, I.P.C. The learned Public Prosecutor, therefore, filed the above application requesting the Court to take cognizance of the case against the petitioners also for the offence under Section 302 I.P.C. The learned Sessions Judge ordered the application and directed the petitioners to be impleaded and issued summons, carrying out their names in the charge-sheet.

(2.) It is contended by Sri Bonala Krishna Rao, learned counsel for the petitioners that prior notice is required under Section 319 Cr.P.C. before the petitioners are sought to be impleaded. He relied upon the decision of a single Judge of this Court in Criminal Petition No. 2783 of 1993 dated 29-6-1994. In Joginder Singh and Another v. State of Punjab, AIR 1979 SC 339, the Supreme Court held :

(3.) The decision cited by the learned counsel for the petitioners of a learned single Judge in Crl. Petn. No. 2783/93, as stated supra, holding that notice has to be issued before impleading a person as accused, was rendered on the special facts of that case. In that case, initially, the Police filed a charge sheet against A-1 and A-2, though the complaint was given against 3 persons, and they were committed to the Court of the Sessions Judge. The Sessions Judge, returned the case to the committal Court with an observation to follow the guide lines in AIR 1985 SC 1285. The learned Magistrate re-committed the case to the Sessions Court regarding A-1 and A-2 only. When the case was made over to the Asst. Sessions Judge, finding that A-3 has not figured in the charge sheet, he passed a brief order, stating that A-3 was impleaded u/S. 319 Cr.P.C., without assigning any reasons for his impleading. The said order was questioned in that case contending, among others, that the order was not a speaking order and that no notice was given. In such a background, the learned Sessions Judge held that the impleading of A-3 without giving opportunity to him was illegal. Though the decisions in Sri. Mahant Kumaranath v. State of Haryana AIR 1983 SC 67 and in Bhagawant Singh v. Commissioner of Police AIR 1985 SC 1285 have been cited, they have not been considered for arriving at this conclusion. The learned Judge has relied upon Prem Singh v. State of Punjab 1993 (3) All 2nd LR Cri 759 (Punj & Har). The said case does not support the view that notice has to be issued for taking action u/Section 319, Cr.P.C. It is also seen that the Section itself does not contemplate any notice. In any view, the decisions of the Supreme Court in Joginder Singh v. State of Punjab AIR 1979 SC 339 and in Sri Mahant Kumarnath v. State of Haryana AIR 1983 SC 67 as seen above, do not contemplate any notice before action is taken under u/Section 319, Cr.P.C.