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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
CRIMINAL REVISION NO. 3 OF 2008
Ashok Ghanshyam Kamble
aged adult, retired Income Tax Officer,
r/o Akola, Tah. & Dist. Akola. :: APPLICANT
-: VERSUS :-
1. Central Bureau of Investigation,
Anti corruption Bureau, Nagpur.
2. Suresh Gopalrao Kawar,
r/o Prasad Colony, Jatharpeth,
Akola.
3. Mahendra s/o Mohanlal Sahu,
Alsi Plots, Akola. :: RESPONDENTS
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Mr. Abhishek Mohgaokar, Advocate with Mr. Anil Mardikar, Advocate
for the Applicant.
Mr. Shyam Ahirkar, Special Counsel for respondent No. 1.
None for respondents No. 2 and 3.
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CORAM: R. Y. GANOO, J.
DATED : 12TH OCTOBER, 2009
Oral Judgment
1. Respondents No. 2 and 3 are facing trial under Sections
7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act
being Special Case No. 4 of 2005 before the learned Special Judge
for C. B. I. at Akola.
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2. It is noticed that some evidence came to be recorded in
the said case and original accused No. 2 i.e. respondent No. 3 filed
an application at Exh. 90 before the learned Special Judge praying
that the present petitioner should be joined as accused on the basis
of evidence which was then before the learned Special Judge. That
application was heard by the learned Special Judge on merits.
Opportunity was given to the present applicant to advance his
submission in connection with the prayer set out in Exh. 90. The
learned Special Judge at Akola by his order dated 07/12/2007
granted the request of joining the present applicant as accused No.
3 and certain other orders were passed. This order dated
07/12/2007 is challenged in this petition.
3. I have heard learned Advocates on both sides. It was
sought to be argued in principle by the learned Advocate for the
applicant that provisions of Section 319 of the Code of Criminal
Procedure should have been invoked by the prosecutor by filing
application and thereafter the Court should have decided the said
matter. According to the learned Advocate for the applicant, it will
not be open for a person who is shown as accused (in a pending
case) to make an application that a particular person should be
joined as an accused by using the provisions of Section 319 Cri. P.
C. He, therefore, submitted that the order passed by the learned
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Special Judge is patently incorrect, and therefore, it should be set
aside.
4. Learned Advocate Mr. Ahirkar appearing for the C. B. I.
submitted that the discussion mentioned in the impugned order
indicates that there is material to join the present applicant as an
accused, and therefore, the learned Special Judge was satisfied that
application should be granted. He submitted that once the Court
comes to a conclusion that there is material to join a particular
person as an accused, this Court should not interfere in the said
order.
5. At this juncture, I do not wish to express any view
whether on the basis of evidence recorded up till now the case is
made out against the applicant to join him as an accused. I am
looking to this matter from limited angle as to who should make
application for joining a particular person as an accused and in my
view after having considered the scheme under Section 319 Cri. P.
C., one thing is clear that a person who is facing the trial cannot
make an application so as to see that a particular person is to be
joined as an accused. It would be a prerogative of the learned
prosecutor to file such an application. At this juncture, I do not
wish to express any view whether the Court could take steps under
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Section 319 Cri. P. C. suo motu as the said point was not pressed
before this Court. In view of the aforesaid, the application Exh. 90
filed by original accused was not maintainable and on this count it
could not have been considered by the learned Special Judge and
hence the order passed by the learned Special Judge on the said
application, i.e. to say grant of such application will have to be set
aside and as such the revision will have to be granted. Hence, the
following order is passed so as to dispose of the revision.
i) Rule is made absolute in terms of prayer
clause (1).
ii) It is clarified that this Court has not expressed
any views on the merits of the matter as to
whether present applicant would be joined as
an accused.
iii) Stay granted at the time of admission shall
stand vacated.
iv) Writ to go forthwith.
JUDGE
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