KASHI KANT JHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The order dated 6-8-2003, passed by the learned Sessions Judge, Special Division-II, Sikkim, in Criminal Case No. 15 of 2002 is the subject-matter under challenge in this revision petition.

(2.) The accused/petitioner Shri Kashi Kant Jha has been facing trial under Sections 467/468/474/109 of the Indian Penal Code before the Court below. In the course of the trial, 9 prosecution witnesses have already been examined, and in the meantime, the accused/petitioner filed an application dated 18-6-2003 under Section 319, Cr.P.C. for taking cognizance of the offence against 3 persons PW Nos. 2, 5 and 6, namely, Madhav Sharma, Navin Dhakal and Bishnu Maya Sharma by contending inter alia, that the PW No. 5, Navin Dhakal had abetted the alleged offence with the accused/petitioner thus attracting a punishment under Sections 467/468/474 read with 109, IPC and whereas PW Nos. 2 and 6, namely, Madhav Sharrna and Bishnu Maya Sharma were having the possession of the forged documents Exhibit P-16 and Exhibit P-18 thus attracting Sections 467, 468, 471, 109 and 34, IPC, and that being the position, the present accused/petitioner sought for taking an appropriate action against the said 3 persons/prosecution-witnesses mentioned above as per Section 319 of the Code of Criminal Procedure. The said petition was rejected by the learned Court below by holding that no offence has been committed by any of the prosecution-witnesses. Being aggrieved by the impugned order dated 6-8-2003, the present accused/ petitioner filed this revision petition.

(3.) Supporting the case of the accused/ petitioner, Mr. S. K. Home Choudhury, learned Senior Counsel contended that there is sufficient evidence on record for establishing the abetment of the alleged offence by the PW No. 5, Navin Dhakal and^apart from that, the names of Bishnu Maya Sharma, PW No. 6 appears in the related FIR dated 22-9-2001, which speaks that prirna facie case is made out against Smt. Bishnu Maya Sharma for committing the offence under Section 468/120-B, IPC, but she was dropped from the case by the investigating machinery without any justification. The learned Senior Counsel also argued that sufficient materials on record are available for establishing the fact that PW2, Madhav Sharma and PW6, Bishnu Maya Sharma were having the possession of alleged forged document Exhibits P-16 and P-17, and that being the position, the learned Court below ought to have proceeded against those persons PWs. 2, 5 and 6 for the offence committed by them, and they should be impleaded as co-accused in the case. The learned Senior Counsel relied upon 2 decisions of the Apex Court rendered in Joginder Singh v. State of Punjab reported in (1979) 1 SCC 345 and Raghubans Dubey v. State of Bihar reported in AIR 1967 SC 1167 and contended that, the expression "any person riot being the accused" in Section 319, Cr.P.C. does not exclude person dropped under Section 169, Cr.P.C. and that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons and that the summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. This important legal aspect has been ignored and overlooked by the learned Court below while passing the impugned order Mr. Home Choudhury argued.