SAJID CHANDANWALA Vs. STATE OF M P

JUDGEMENT

(1.) THIS revision has been directed by the applicant against the order dated 9-3-2002, passed by learned VIIIth Additional Sessions Judge, Indore, in Session Trial No. 107/2001, allowing the application filed by the other accused persons under Section 319 of the Code of Criminal Procedure for impleading the applicant as accused on the ground that in the First Information Report as well as in the statement given by the witnesses before the police (under Section 161 of Cr. PC), the witnesses have named the applicant. Thereafter one eye-witness Hafiz s/o Abdul Shakur (P. W. 11), examined on 15-2-2002, has also stated the name of the applicant in Paragraph 3 as one of the participants in the alleged incident of commission of murder of Mohammad Rafiq. In cross-examination done by the Counsel for the other accused persons, in Paragraph 6 he has stated as under:--";g lgh gs fd lkftn ds firk dk uke nkn gsa lkftnpunuuxj okyk dksbz ugah gsa ;g lgh gs fd igyk ckjeksgeen jqhd ij lkftn punu okyk us ryokj ls flj ij fd;kfkka** In view of the statement of eye-witness Hafiz, the learned Trial Court has invoked the provision under Section 319 of Cr. PC and issued warrant of arrest against applicant Sajid Chandanwala. This is the impugned order before this Court under challenge.

(2.) THE learned Counsel for the applicant submitted that without cross-examination the statement of Hafiz (P. W. 11) cannot be regarded as evidence, as contemplated in Section 319 of Cr. PC, for invoking this provision to array the applicant as accused by the Trial Court. The learned Dy. Advocate General Shri Desai has placed reliance in a judgment of Supreme Court Rakesh and Anr. v. State of Haryana, (2001) 6 SCC 248, the Supreme Court ruled out that a person can be added as an accused on the basis of the statement given by the witness or witnesses in examination-in-chief. Cross-examination of the witness is not necessary prior to the addition of any other person as accused on the basis of evidence of such witness. Opportunity to cross-examine the witness would be available to such person at the time of trial. In the present case, witness Hafiz was not only examined by the prosecution, but he was also cross-examined by other witnesses. Obviously, the present applicant will get the opportunity of cross-examination after his appearance.

(3.) LEARNED Counsel for the applicant has placed reliance on a judgment rendered by Supreme Court in Michael Machado and Anr. v. Central Bureau of Investigation and Anr. , 2000 (2) Crimes Vol. 4 Page 23. In this judgment the Supreme Court has held that at a belated stage the Court should be cautious to invoke the provision under Section 319 of Cr. PC for impleading any other person or persons as accused. The Supreme Court has also held that this provision is not mandatory, and Court should exercise discretion when there must be reasonable prospect of conviction of the said newly arrayed accused. Merely on the statement of witness which created some suspicion against the said accused, he should not be made accused as per provision under Section 319 of Cr. PC.