JUDGMENT
D.N. Patel, J.
1. This Reference has been made to this Court by the learned Additional Principal City Sessions Judge, Court No. 2, City Sessions Court, Ahmedabad in Sessions case No. 256 of 2007, in pursuance of the applications exh. 27 and 29. Application exh. 29 was preferred by original accused No. 12 and application exh. 37 was preferred by accused Nos. 1, 6 and 13 for joining Mr. V.A. Rathod, Police Inspector, as an accused. Upon these two applications, City Sessions Court, Ahmedabad has narrated the facts in detail alongwith statements of witnesses and has made the present Reference to this Court, so that, in exercise of revisional or inherent powers, conferred upon High Court, under Code of Criminal Procedure, 1973, it may be decided, whether Mr. Vijaykumar, son of Arjunbhai Rathod, is required to array as an accused in the Sessions case.
2. I have heard the learned advocates for accused Nos. 1, 6 and 13 as well as the learned advocate Mr. B.N. Patel for Mr. Vijaykumar A. Rathod, who is shown as prosecution witness No. 166.
3. The learned Counsel Mr. Rohit Verma appearing for accused No. 12 i.e. Dr. N.K. Amin mainly submitted that looking to the evidence on record Mr. V.A. Rathod, ought to have been joined as an accused, in Sessions case No. 256 of 2007, arising out of Cr. No. I-5 of 2005 registered with ATS police station for the offences punishable under Sections 302, 365, 368, 120-B, 201, 44 and 193 of the Indian Penal Code and Sections 25(1) and 27 of the Arms Act. It was prayed by this accused No. 12 that the Sessions Court, in exercise of the powers vested in it under Section 193 of the Code of Criminal Procedure be pleased to take cognizance against prosecution witness No. 166 Mr. V.A. Rathod, issue summons to him and further be pleased to array him as an accused in the present case. It is vehemently submitted by Mr. Verma that cognizance is to be taken of the offence and not of the offender and if, cognizance of the offence is to be taken by the Court, no offender should go scot-free or no pardon can be given by the Investigating Officer to the accused. Such powers are vested in the court as per Section 306 of the Code of Criminal Procedure read with Sections 307 and 308 of the Code of Criminal Procedure. It is also submitted by the learned Counsel Mr. Verma that an application dated 15th May, 2007 was preferred by the Investigating Officer under Section 70 of the Code of Criminal Procedure before the learned Chief Metropolitan Magistrate, Ahmedabad, wherein names of seven persons were revealed as accused persons, one of them was this Mr. V.A. Rathod, Police Inspector, LCB, Shahibaug, Ahmedabad. In this application, it is stated by the prosecution that these seven accused are absconding and they are not traceable to the investigating agency and they are accused in the aforesaid offences and therefore, warrants under Section 70 of the Code of Criminal Procedure may be issued by the Court. It is also submitted by the learned Counsel Mr. Verma on behalf of accused No. 12 that the statement Nathubha Jadeja was recorded on 26th April, 2007. In his statement, he has narrated the role played by Mr. V.A. Rathod, Police Inspector. On the basis of this statement, Mr. V.A. Rathod ought to be treated as an accused. Therefore, an application dated 15th May, 2007 was preferred for issuance of warrant under Section 70 of the Code of Criminal Procedure. But thereafter, for no reason whatsoever, on 25th May, 2007, this application was withdrawn by the State and another application was preferred, on the very same day, dropping Mr. V.A. Rathod at serial No. 6 and Mr. N.V. Chauhan, at serial No. 7. The learned Chief Metropolitan Magistrate passed an order dated 27th May, 2007 and the warrants were issued against remaining five accused. Thereafter, one more application was preferred by Investigating Officer, on 5th June, 2007 for getting warrant under Section 70 of the Code of Criminal Procedure. Mr. N.V. Chauhan who was at serial No. 7, who was initially inducted as an accused on 15th May, 2007, was subsequently dropped on 25th May, 2007, was again re-inducted on 5th June, 2007 (who was at serial No. 7 in an application dated 15.5.2007). Now this Mr. N.V. Chauhan is shown as accused No. 13 in the present offence. Thus, for no reason whatsoever, Mr. V.A. Rathod, Police Inspector who was originally at serial No. 6 in the application dated 15th May, 2007 has been dropped, despite explicitly clear statement dated 26th April, 2007 given by prosecution witness No. 165 Mr. Nathubha Jadeja. It is also submitted by Mr. Verma on behalf of accused No. 12 that as once a person is treated as an accused, on the basis of statement of eye witness and once an application was also preferred for issuance of warrant under Section 70 of the Code of Criminal Procedure, by showing him as an absconding accused, Mr. V.A. Rathod, cannot be, now treated as a prosecution witness by the State. There are no such powers vested in the Investigating Officer to convert the accused into a witness. In fact, as per the Code of Criminal Procedure, especially under Section 306 thereof, such powers are vested only in the competent Court. The powers under Section 306 of the Code of Criminal Procedure can be exercised by the Court even during the course of investigation for tendering pardon to an accused, but these powers cannot be exercised by the investigating agency on its own. Mr. Verma has also relied upon the decisions of the Hon’ble Supreme Court rendered in the case of Kishun Singh and Anr. v. State of Bihar ; in the case of Nisar and Anr. v. State of U.P. ; in the case of Ranjit Singh v. State of Punjab and in the case of Dharam Pal and Ors. v. State of Haryana and Anr. reported in (2004) 13 SCC 79. He has also relied upon the decision rendered by the Delhi High Court in the case of The State v. C.S. Rathore reported in 2001 Criminal Law Journal 761 as well as the decision rendered by Kerala High Court in the case of Vasudevan Nair v. State of Kerala reported in 2005 Criminal Law Journal 1457 and has submitted that there is no need for the Sessions Court to wait upto the stage of Section 319 of the Code of Criminal Procedure, but, while taking cognizance of an offence, under Section 193 of the Criminal Procedure Code, if a Judge, finds complicity or involvement of others, in the commission of crime, prima facie, surfaces, from the material placed before him, summons can be issued to such person and he can be joined as an accused in the offence. In fact, it is stated by Mr. Verma that the statement of witness Nathubha Jadeja dated 26th April, 2007 is so clear that there is no need for the Sessions Court to wait upto the stage of evidence. There are also corroborative statements of PW 95 and PW 96. The Sessions Court has all power, jurisdiction and authority while taking cognizance of the offence, to join a person as an accused in the sessions case, if prima facie, there is material which reveals involvement of that person.
4. I have also heard the learned advocate Mr. B.B. Naik appearing for accused Nos. 1,6 and 13. He has submitted that looking to the statement of witness Nathubha Jadeja, Mr. V.A. Rathod, Police Inspector has committed an offence as alleged by the prosecution. In fact, the Investigating Officer, on 15th May, 2007, was of the opinion that Mr. V.A. Rathod is an absconding accused and therefore, an application, was preferred for issuance of warrant under Section 70 of the Code of Criminal Procedure. It is also submitted by the learned advocate Mr. Naik that thereafter, there was no reason for the State for dropping the name of Mr. V.A. Rathod from the list of accused persons. In fact, Investigating Officer had dropped Mr. V.A. Rathod as well as Mr. N.V. Chauhan from the list given in their application dated 15th May, 2007, but subsequently on 5th June, 2007, in another application, Investigating Officer had again joined Mr. N.V. Chauhan as accused No. 13. Once Investigating Officer treats any person as an accused on the basis of the statements given by the eye witness and once such application for issuance of warrant under Section 70 of the Code of Criminal Procedure for absconding accused is obtained or applied, the Investigating Officer has no power, jurisdiction and authority to treat such an accused person as a prosecution witness. The learned Counsel Mr. B.B. Naik has relied upon the decision of the Hon’ble Supreme Court in the case of Popular Muthish v. State represented by Inspector of Police . It is also pointed out by the learned Counsel Mr. Naik that if such powers are exercised by the investigating agency of treating the accused, as a prosecution witness and if he turns hostile, no action as envisaged under Section 308 of the Code of Criminal Procedure can be initiated against him and therefore, wisely such powers are conferred under Section 306 of the Code of Criminal Procedure to the Court and therefore, the powers exercised by the Investigating Officer of treating Mr. V.A. Rathod (who was once in the application dated 15th May, 2007, treated as an absconding accused), as a prosecution witness, is dehors the provisions of Criminal Procedure Code and unnecessary favour is shown to Mr. V.A. Rathod.
5. It is also submitted by Mr. B.B. Naik that the powers exercised by the Investigating Officer of converting an accused into a prosecution witness is de hors the provisions of Code of Criminal Procedure, especially of Section 306 read with Sections 307 and 308 of the Code of Criminal Procedure. The learned Counsel Mr. Naik has also adopted the arguments advanced by learned advocate Mr. Rohit Verma appearing for accused No. 1.
6. I have heard the learned Additional Public Prosecutor for the respondent State who has mainly submitted that the accused persons have no locus standi to prefer such an applications exh. 27 and 29 for converting prosecution witness No. 166 Mr. V.A. Rathod into an accused. He has relied upon the decision rendered by the Hon’ble Supreme Court in the case of Raj Kishore Prasad v. State of Bihar and Anr. . It is also submitted by the learned Additional Public Prosecutor that it is only at the stage of evidence and after taking evidence, the Court can join a person as an accused and not prior thereto. Therefore, this is not a stage at which a person can be joined as an accused. It is also submitted by the learned Additional Public Prosecutor that looking to the judgment delivered by the Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh (5) and another the aforesaid two applications exh. 29 and 37 are not tenable at law. It is the prerogative power of the investigating agency, looking to the statement of witnesses, as to who should be joined as an accused. Thereafter, the evidence must be started and only after taking evidence, the Court has power to join a person as an accused and therefore, provisions of Section 306 are not applicable in the facts of the present case. It is also submitted by the learned Additional Public Prosecutor that looking to the evidence on record, against Mr. V.A. Rathod and looking to the statement given by Mr. V.A. Rathod, the Investigating Officer has correctly treated him as a prosecution witness No. 166 and therefore, at this stage, the aforesaid two applications cannot be entertained and reference made by the City Sessions Court deserves to be dismissed and lastly, it is submitted by the learned Additional Public Prosecutor that whether at the stage of Section 193, any person can be joined as an accused or not, that question of law has been referred to the larger bench of the Hon’ble Supreme Court as per case reported in 2004(13) SCC 9 and therefore also, this Court may not allow the reference made by the City Sessions Court at Ahmedabad.
7. I have also heard the learned advocate Mr. B.N. Patel for Mr. V.A. Rathod who has submitted that the City Sessions Court has not appreciated the fact that Nathubha Jadeja has already retracted his statement on 22nd May, 2007. There is a lot of variation in the statement given by Nathubha Jadeja. Initially, what was stated on 14th and 15th February, 2007, was changed on 26th April, 2007 and thereafter, again on 22nd May, 2007, there is a retraction by the prosecution witnesses No. 165 viz. Nathubha Jadeja. Thus, the application which was preferred on 15th May, 2007 was not pressed so far as Mr. V.A. Rathod is concerned on 25th May, 2007 for issuance of warrant under Section 70 of the Code of Criminal Procedure. Thus, mainly because of Nathubha’s statement dated 22nd May, 2007, Mr. V.A. Rathod cannot be joined as an accused. This crucial aspect of the matter has been lost sight of by the trial court and therefore, the Reference made by the trial court deserves to be dismissed. It is also submitted by Mr. B.N. Patel on behalf of Mr. V.A. Rathod that the investigating agency has all power, jurisdiction and authority to evaluate their own investigation papers and array the accused. But it is only when the evidence is recorded, thereafter, the Court has power to join a person as an accused who is not referred in the charge-sheet, if his involvement is found in committing the offence. But, before evidence, there is no power, jurisdiction and authority with the Court to join Mr. V.A. Rathod as an accused, who is otherwise prosecution witness No. 166. The learned Counsel for the prosecution witness No. 166 viz. Mr. V.A. Rathod, has relied upon the statement of Mr. V.A. Rathod dated 21st June, 2007 and 1st July, 2007. He has also relied upon the weekly diary and has pointed out that he has never participated in the offence at all. It is also submitted by Mr. B.N. Patel that these application exhs. 29 and 37 are nothing, but, pressure tactics which are applied by accused persons and are preferred with malafide intention. Similar type of application was also preferred before Chief Metropolitan Magistrate and the learned Chief Metropolitan Magistrate by his order dated 2nd August, 2008 (below exh. 18) had dismissed the application for joining prosecution witness as an accused. This order has not been challenged by the accused No. 12 nor by accused Nos. 1, 6 or accused No. 13. Thereafter, other applications have been preferred before Sessions Court and therefore, also reference made by the City Sessions Court deserves to be dismissed. It is also submitted by learned advocate Mr. B.N. Patel that in fact, prosecution witness No. 166 Mr. V.A. Rathod is not an accused at all. On the contrary, looking to the statement of this witness, it is helping the prosecution case. He has also submitted that the provisions of Section 306 of the Code of Criminal Procedure are not applicable to the facts of the present case and he has also relied upon the judgment delivered by the Hon’ble Supreme Court in the case of Ranjit Singh v. State of Punjab and has pointed out that this is not a stage at which the prosecution witness can be joined as an accused, but, only after taking evidence, if it is coming out from the depositions of witnesses that any person is involved, prima facie, in committing offence, can be joined as an accused. In view of these facts, the Reference made by the City Sessions Court deserves to be dismissed.
8. Having heard the learned advocates for both the sides and looking to the facts and circumstances of the case, it appears that the prosecution witness No. 166 Mr. V.A. Rathod ought to have been joined as an accused for the following facts and reasons:
(i) Looking to the statement of most important witness namely Nathubha Jadeja (PW 165) dated 26th April, 2007 prima facie, involvement of Mr. V.A. Rathod in commissioning of the offence as alleged by the prosecution is established. The relevant part of the statement of Mr. Nathubha Jadeja dated 26th April, 2007 reads as under, who has narrated Mr. V.A. Rathod, Police Inspector as Rathod Saheb:
In the night at about 10.00 hours we reached at Elol. Alongwith me Chauhan Saheb and Rathod Saheb were also in the tempo. At Elol village there was a river and the tempo loaded with woods trapped in the sand and for pulling it out pressure being made, it was further trapped. Thereafter, as this tempo could not pulled out, Chowbe Saheb, Chauhan Saheb, Rathod Saheb all and I got down the woods. At that time, Vanzara saheb and Pandiyen Saheb and Amin Saheb, Dy. S.P. also came there. Near the bunch of woods Chowbe Saheb came with jeep and in that jeep one dead body was lying. Chowbe Saheb, Chauhan Saheb, Rathod Saheb and I took out the dead body and kept on the woods and on it other woods were arranged and as far as I know, Vanzara saheb set fired the dead body. At this place till the dead body completely burnt i.e. after about four or five hours, all the officers stayed at that place and after completely burning out the dead body, Chowbe Saheb and Chauhan saheb brought water and poured on it. Thereafter, ash and bones were kept in a big bag and kept in the back side of the jeep and from the place where the woods were fired the sh was kept in jeep. Thereafter, sitting in the jeep I came to Himmatnagar from Elol. This jeep was driver by Chowbe Saheb, whereas, Chauhan saheb, Rathod Saheb and myself sat near the driver seat in front side. I and Rathod Saheb got down at Himmatnagar and as the shop of craneman was in interior place, Chowbe saheb got us down and went away. I do not know where he went. Thereafter, on searching the craneman, we met a man doing tire puncture and he told us that craneman will come late. We were late and as driver of tempo and his brother were at ATS office, for informing them Rathod Saheb from his mobile made a call to Ajay Parmar. At about 8.00 O’clock from Himmatnagar I and Rathod saheb took the crane and went to Elol where the tempo was kept ad after pulling out the tempo with crane, came back. The fare of crane was paid by Rathod saheb. I do not know the name of craneman, but I know from where crane was taken on fare. Taking tempo we came to ATS office, where driver of tempo was present and he was given the tempo. As far as I remember the tempo was of the ownership of a policeman. I do not know the name of that policeman. I have passed 9th standard. I am having motor vehicle licence, the number of which is GJ08/004541/05.
Thus, looking to the aforesaid statement of prosecution witness No. 165 viz. Nathubha Jadeja, Mr. V.A. Rathod is involved in committing the offence. On the basis of this statement, several other persons who are referred in this statement, are also made as accused but Mr. V.A. Rathod is the only person who is shown as a prosecution witness. All the accused are serving in police.
(ii) The aforesaid statement of Nathubha Jadeja-prosecution witness No. 165 is also corroborated by other two statements of witnesses, viz. of Zahir Abbas Ganchi, PW 96 dated 27th June,2007 and of Mr. Kalpeshbhai Dhirubhai Vaghela-PW 95 dated 27th June, 2007. The aforesaid statement of Nathubha Jadeja is not the only piece of evidence. But looking to the papers of investigation, there is enough corroboration. As this is not a stage at which this Court is evaluating the evidence of witnesses and as such there is no need of bifurcation or dissection of the statements of prosecution witnesses, but suffice it to say that looking to the statement given by prosecution witness No. 96, namely Zahir Abbas Ganchi, has also referred Mr. V.A. Rathod, (who is otherwise, shown as a prosecution witness No. 166) frequently. Looking to the conjoint reading of statement given by Nathubha Jadeja, p.w. 165 dated 26th April, 2007, and a statement given by Zahir Abbas, p.w. No. 96 dated 22nd June, 2007, prima facie, there is an involvement of Mr. V.A. Rathod in committing the offence. It is the present Mr. V.A. Rathod who had gone for taking tempo No. 1 bearing Registration No. GJ-2-V-5287. Mr. V.A. Rathod has conveyed to this witness that “come alongwith us at ATS office and we have to check your vehicle at RTO.”. Thus, under the pretext of checking vehicle, his tempo was taken by this Mr. V.A. Rathod, so that woods can be loaded in his tempo and can be taken at the scene of offence for burning the dead body of Kausharbi. Thus, the aforesaid tempo was used for carrying on wood for burning dead body of Kausharbi. It appears from further investigation and statements of witnesses that the aforesaid tempo for any reason whatsoever and or for mechanical defect, could not go ahead from village Motera and therefore, another tempo was required for transfer of the wood from the aforesaid tempo and therefore, again Mr. V.A. Rathod has played a pivotal role.
(iii) Thus, Zahir Abbas Ganchi, PW 96 was compelled to sit at the office of ATS was asked by Mr. V.A. Rathod that why your tempo is not going ahead and what is the defect in your tempo. But ultimately, this V.A. Rathod had gone to take another tempo. Thereafter, this Mr. V.A. Rathod PW No. 166, by adopting similar type of method, got another tempo bearing Registration No. GJ-7-T-7025. Looking to the statement of the witness, namely, Kalpesh Dhirubhai Vaghela PW 95 dated 27th June, 2007, he has narrated this Mr. V.A. Rathod as ” police officer of ATS office” and has narrated how his tempo was taken by the police officer which was ultimately used for transferring the woods from tempo bearing registration No. GJ-2-V-5287 in the second tempo. Ultimately, this wood was used for burning the dead body of Kausharbi on the bank of Dhavli river at the outskirt of village Elol, Dist: Sabarkantha. Thus, looking to the statement of Nathubha Jadeja, p.w. No. 165 dated 26th April, 2007, and also looking to statement given by the prosecution witness No. 96 namely Zahir Abbas dated 27th June, 2007 (driver of tempo No. 1 bearing Registration No. GJ-2-V-5287) and looking to the statement given by the prosecution witness No. 95 Kalpesh Dhirubhai Vaghela, dated 27th June, 2007 (driver of tempo No. 2 bearing Registration No. GJ-7-T-7025), it appears that it is Mr. V.A. Rathod who has arranged for these two tempos, the wood which was lying in the tempo No. 1, which were to be utilised for burning dead body of Kausharbi was transferred in another tempo and as per the statement of Nathubha Jadeja, p.w. No. 165 dated 26t April, 2007, it is the present Mr. V.A. Rathod-p.w. No. 166 who has lifted dead body of Kausharbi and put on pyre so that the dead body can be disposed for after burning.
As a cumulative effect of these statements, I am of the opinion that this prosecution witness No. 166 ought to have been joined as an accused like other accused persons who are referred by Nathubha Jadeja in his statement dated 26th April, 2007. As this is a stage prior to evidence, this Court is not much analysing the further evidence on record. Suffice it to say that Mr. V.A. Rathod is involved in committing the offence as alleged by the prosecution and therefore, prosecution witness No. 166 Mr. V.A. Rathod ought to have been joined as an accused.
(iv) It also appears from the facts of the case that the prosecution had moved an application dated 15th May, 2007 for issuance of warrant under Section 70 of the Code of Criminal Procedure against the following persons:
(1) M.L. Parmar, Deputy Superintendent of Police, CID (Intelligence), Gujarat State, Gandhinagar.
(2) Balkrushna Rajendraprasad Chaube, Police Sub Inspector, At present Police Inspector, SRP Group-IX, Vadodara.
(3) Abdul Raheman Abdul Rasid Shaikh, Police Inspector, Udepur, Rajasthan.
(4) Himanshusing Mohansing Rajava, Police Sub Inspector, Udepur, Rajasthan.
(5) Shyamsing Jaysing Charan, Police Sub Inspector, Udepur, Rajasthan.
(6) V.A. Rathod, Police Inspector, ACB, Shahibaug, Ahmedabad.
(7) N.V. Chauhan, Police Sub Inspector, GRD Police Sub Inspector, Mahesana.
Thus, all the aforesaid persons were needed by the Investigating Officer , as they were absconding accused. This application is on the record of the trial court. Looking to this application, very categorically it is mentioned by the Investigating Officer that all the aforesaid seven accused persons are not available to the Investigating Officer , they are absconding and they are avoiding their arrest and they are not traceable at their residential addresses. In this application, we are concerned with Mr. V.A. Rathod who is at serial No. 6 and now shown as a prosecution witness No. 166. For him, it is stated in the aforesaid application dated 15th April, 2007 that this Mr. V.A. Rathod was not available at his residence. Police Inspector Sharma had inquired about him. Thus, the aforesaid officer Mr. V.A. Rathod was absconding accused and therefore, it was prayed by Investigating Officer before the learned Chief Metropolitan Magistrate, Ahmedabad that warrants under Section 70 of the Code of Criminal Procedure may be issued. Thus, it appears that the prosecution has treated Mr. V.A. Rathod p.w. No. 166 as absconding accused.
(v) It also appears from the papers of investigation that on 25th May, 2007, for any reason whatsoever, the aforesaid application dated 15th May, 2007 was withdrawn by the Investigating Officer and another application was given on the same day i.e. on 25th May, 2007 for issuance warrant under Section 70 of the Code of Criminal Procedure. But this application reveals only five persons as accused who are at serial Nos. 1 to 5, whereas the persons who were shown as absconding accused in the application dated 15th May, 2007 at serial Nos. 6 and 7 were dropped. Thus, Mr. V.A. Rathod, p.w. No. 166 and another absconding accused namely Mr. N.V. Chauhan were dropped as accused and the learned Chief Metropolitan Magistrate, Ahmedabad passed an order dated 28th May, 2007 and the warrants were issued under Section 70 of the Code of Criminal Procedure for the first five accused. No reason, worth the name was given for dropping two accused, namely Mr. V.A. Rathod and Mr. N.V. Chauhan in their application dated 15th May, 2007.
(vi) It also appears that thereafter, again wisdom must have been prevailed upon the Investigating Officer and further application dated 15th June, 2007 was preferred, whereby Mr. N.V. Chauhan (at serial No. 7 in application dated 15.5.2007) who was dropped as an accused, was re-inducted as an accused and an application was preferred for issuance of warrant under Section 70 of the Code of Criminal Procedure and again Mr. N.V. Chauhan was shown as an absconding accused. It is revealed from these zig zag applications of the Investigating Officer that initially Mr. V.A. Rathod who is now shown as a prosecution witness No. 166 was inducted as an absconding accused on 15th May, 2007. Thereafter, in another application dated 25th May, 2007, two accused namely Mr. V.A. Rathod and Mr. N.V. Chauhan were dropped and again in third application dated 5th June, 2007 for issuance of warrant from the Court of the learned Chief Metropolitan Magistrate, Mr. N.V. Chauhan is re-inducted as an accused. Now, Mr. N.V. Chauhan is shown as accused No. 13 in the charge-sheet/challan. But still Mr. V.A. Rathod was not shown as an accused. No reason is coming on record as to why Mr. V.A. Rathod is not shown as an accused who was otherwise, shown as an absconding accused on 15th May, 2007 in the application for issuance of warrant under Section 70 of the Code of Criminal Procedure. As stated hereinabove, it appears that looking to the statement of prosecution witness No. 165 dated 26th April, 2007 and looking to the statement of prosecution witness No. 96 viz. Zahir Abbas Ganchi (driver of tempo No. 1 bearing registration No. GJ-2-V-5287) dated 27th June, 2007 and looking to the statement of prosecution witness No. 95 namely Kalpesh Dhirubhai Vaghela dated 27th June, 2007 (driver of tempo No. 2 bearing Registration No. GJ-7-T-7025), it appears that Mr. V.A. Rathod was correctly shown as accused as per the allegation of the Investigating Officer dated 15th May, 2007 and he was correctly shown as an absconding accused for issuance of warrant under Section 70 of the Code of Criminal Procedure.
(vii) A contention has been raised by the learned advocate for Mr. V.A. Rathod that as prosecution witness No. 165 Nathubha Jadeja has retracted his statement dated 26th April, 2007, by his application dated 22nd May, 2007, before the learned Chief Metropolitan Magistrate, Ahmedabad, and therefore, perhaps, it might have been, thought it fit, by the Investigating Officer that Mr. V.A. Rathod is not an accused. This argument is not accepted by this Court mainly for the reason that Nathubha Jadeja’s statement p.w. 165 dated 26th April, 2007, cannot be evaluated on the basis of belated retraction of the said witness dated 22nd May, 2007. Such evaluation on the part of the investigation is legally not tenable and factually unwarranted, looking to the statement of prosecution witness Nos. 95 and 96, as stated hereinabove. Retraction of statement is not so unknown and that too, at belated stage. The allegation against accused is fake encounter of Shohrabuddin and murder of his wife. In such type of serious offence, it ought to have been appreciated by the Investigating Officer that looking to the totality of circumstances, Mr. V.A. Rathod is involved, prima facie, in commissioning of the offences, he ought to have been arrayed as an accused. It appears that Investigating Officer, could not see the wood for the trees.
(viii) It has also been held by this Court, while cancelling bail of accused viz- Dr. N.K. Amin under Sub-section (2) of Section 439 of the Code of Criminal Procedure as under:
20.
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
(d) Retraction of the statement of Shri Nathubha or any other statement by any other person is to be considered at the stage of trial as laid down by the apex court in case of State Through C.B.I. v. Amarmani Tripathi .
25. Considering the above aspects of the matter, this Court is of the opinion that as per law laid down in the cases of Daulatram (supra), Amarmani Tripathi (supra), Panchanan Mishra (supra), Ram Govind (supra), K.C. Sarkar (supra) and retraction of statement of witnesses and other aspects about contradiction, veracity, truthfulness or otherwise can be gone into at the stage of trial and any reliance upon such statements for grant of bail is unwarranted coupled with the fact about comparison of characteristics of a person killed in a fake encounter and one of the accused whose presence is established at the place of offences and insufficiency of conditions imposed likelihood of tampering with evidence or witnesses by misusing the liberty and any further discussion on evidence may prejudice the case of prosecution as well as the defence.
Thus, the statements of p.w. Nos. 165, 95 and 96 coupled with other panchnamas of tempo Nos. 1 and 2 and scene of panchnama, there is prima facie, involvement of Mr. V.A. Rathod, therefore, he ought to have been joined as an accused.
(ix) It is also contended by the learned Counsel for Mr. V.A. Rathod that earlier application preferred before the learned Chief Metropolitan Magistrate, Ahmedabad for joining Mr. V.A. Rathod as an accused was not accepted and therefore, subsequent applications exhs. 29 and 37 cannot be accepted by the City Sessions Court, Ahmedabad and therefore, this Reference deserves to be dismissed. This contention is also not accepted by this Court mainly for the reason that earlier application preferred before the learned Chief Metropolitan Magistrate, Ahmedabad was preferred by accused Nos. 1 and 2, whereas the application below exh. 29 has been preferred by accused No. 12. Thus, the applicant of exh 29 has never preferred any earlier application. Likewise, the accused Nos. 6 and 13 are also applicants of exh. 37 alongwith accused No. 1. Thus, applicants (Accused No. 6 and Accused No. 13) of exh. 37 application has also never preferred any earlier application. Even otherwise also, the order dated 27th August, 2007(exh. 18)passed by the learned Chief Metropolitan Magistrate, Ahmedabad and application preferred by accused Nos. 1 and 2 never creates a bar or estoppal on the part of accused Nos. 12, 6 and 13 for preferring an application under Section 190 of the Code of Criminal Procedure Code for joining Mr. V.A. Rathod, p.w. No. 166 as an accused. Such type of application is a reminder to the Court, so as to enable the court to exercise the powers conferred to it (as per 2005 Criminal Law Journal, 1457). It is also contended by the learned advocate for Mr. V.A. Rathod that these applications exh. 29 and 37 have been preferred with malafide intention. I see no merit in this contention mainly for the reason that the statements of p.w. Nos. 166, 95 and 96 dated 26th April, 2007, 27th June, 2007 and 27th June, 2007 respectively, are so crystal clear, unambiguous and unequivocal that Mr. V.A. Rathod is narrated as an accused. Clear allegations have been levelled by these witnesses and clear is the involvement in the offence of Mr. V.A. Rathod and perhaps therefore, Investigating Officer had preferred an application dated 15th May, 2007 and narrated Mr. V.A. Rathod as an absconding accused and prayed for issuance of warrants under Section 70 of the Code of Criminal Procedure and without any reason, his name was dropped in the subsequent application dated 25th May, 2007, preferred by the Investigating Officer for issuance of warrant under Section 70 of the Code of Criminal Procedure.
(x) Looking to the scheme of the Code of Criminal Procedure, the Investigating Officer has no power, jurisdiction and authority to give pardon to any accused. It is the power vested in the Court as per Section 306(1) of the Code of Criminal Procedure to tender pardon at any stage of investigation. Section 306(1) of the Code of Criminal Procedure reads as under:
306. Tender of pardon to accomplish-(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate, or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiry into, or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor in the commission thereof.
In view of this section of Code of Criminal Procedure, powers to tender pardon are vested in the Court prior to charge-sheet/challan and subsequent to charge-sheet/challan or during course of investigation or after completion of the investigation. The Investigating Officer cannot give pardon to the accused. As stated hereinabove, looking to the investigation, there is enough material, which reveals prima facie, Mr. V.A. Rathod an accused. Even Investigating Officer has considered him as an absconding accused in their application dated 15th May, 2007 and had applied for warrant under Section 70 of the Code of Criminal Procedure and for no reason, he was dropped on 25th May, 2007 in the second application. In fact, the prosecution had dropped two accused on 25th May, 2007, one Mr. V.A. Rathod and another Mr. N.V. Chauhan and therefore, on 28th May, 2007, the learned Chief Metropolitan Magistrate, had issued warrants under Section 70 of the Code of Criminal Procedure only against five accused persons i.e. first five accused as shown in the application dated 15th May, 2007, whereas the persons whose names are shown at serial Nos. 6 and 7 in the application dated 15th May, 2007 were dropped for no reasons. Again wisdom must have been prevailed upon Investigating Officer and in his application dated 5th June, 2007, a person who was dropped and who was at serial No. 7 viz. Mr. N.V. Chauhan was again re-inducted as an accused and Investigating Officer was in search of warrant under Section 70 of the Code of Criminal Procedure and he is now shown as accused No. 13 in the charge-sheet/challan and therefore, only the man left out from the list of seven accused is Mr. V.A. Rathod.
In this set of circumstances, and looking to the evidence on record, the statements of prosecution witnesses on record, dropping Mr. V.A. Rathod as an accused tantamounts pardon to him. Such powers are not vested in the Investigating Officer . Looking to the provisions of Section 306 of the Code of Criminal Procedure, even during the course of investigation, it is only the Court is having power to tender pardon to such person on a condition of making his full and true disclosure of the whole circumstances, within his knowledge, relating to the offence. Likewise, as per Sections 307 and 308 of the Code of Criminal Procedure, if such person whom pardon is given, is not complying with the conditions of pardon, he can be prosecuted, whereas if Mr. V.A. Rathod is dropped as an accused by Investigating Officer, and is shown as a prosecution witness No. 166 and if he does not give full and true disclosure of whole circumstances, within his knowledge, of the offence, then action as contemplated under Section 308 of Code of Criminal Procedure, cannot be initiated against him. This is an inbuilt fallacy in the argument of the prosecution. He cannot, therefore, give pardon to the accused. There are no such powers vested in the Investigating Officer. Investigating agency ought to have applied to the concerned court before converting accused as witness. Much has been argued by the learned Counsel Mr. V.A. Rathod that Section 306 has no applicability at all. As this is only a stage for joining a person as an accused, this Court is not much analysing Sections 306, 307 and 308 of the Code of Criminal Procedure. Suffice it to say that there is no power vested in the Investigating Officer to drop an accused in the charge-sheet, if any person is otherwise found involved in committing offence on the basis of the statements of witnesses and other evidence collected during the course of investigation. Even during the course of investigation, Investigating Officer has no power to treat accused as a witness. It is only the Chief
Judicial Magistrate or Chief Metropolitan Magistrate, who can exercise such powers at any stage:
(i) of the investigation; or
(ii) of inquiry; or
(iii) of the trial
– of the offence as per Sub-section (1) of Section 306 of the Code of Criminal Procedure.
(xi) It is also vehemently submitted by the learned advocate for Mr. V.A. Rathod that the Court has power only after taking some evidence in the matter to join a person as an accused as per Section 319 of the Code of Criminal Procedure and there is no other stage envisaged under Code of Criminal Procedure for joining a person as an accused. This attractive argument is also not accepted by this Court, mainly for the reason that under new Code i.e. Code of Criminal Procedure, 1973, unlike older Code of Criminal Procedure, 1898, cognizance is to be taken of offence and not of an offender, and therefore, once the Court has to take cognizance of an offence, there are all powers vested with the Court that properly statements of witnesses ought to be read and re-read and if any person is not joined as an accused, he can join as an accused, while taking cognizance of an offence. This is a difference between old Code of Criminal Procedure, 1898 and new Code of Criminal Procedure, 1973. This is a remarkable difference.
New Code
(Code of Criminal Procedure, 1973)
Old Code
(Code of Criminal Procedure, 1898)
Cognizance of offences by Courts of Session. – Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
Cognizance of offences by courts of Session. – (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf.
It has been held by the Hon’ble Supreme Court in the case of Kishun Singh and Ors. v. State of Bihar as under:
(7) …. ….
…. It may immediately be noticed that under the old provision a court of Session could not take cognizance of an offence as a court of original jurisdiction unless the accused was committed to it whereas under the recast section as it presently stands the expression the accused has been replaced by the words the case. As has been pointed out earlier, under Section 190 cognizance has to be taken for the offence and not the offender; so also under Section 193 the emphasis now is to the committal of the case and no more on the offender. So also Section 209 speaks of committing the case to the court of Session. On a conjoint reading of these provisions it becomes clear that while under the old Code in view of the language of Section 193 unless an accused was committed to the court of Session the said court could not take cognizance of an offence as a court of original jurisdiction; now under Section 193 as it presently stands once the case is committed the restriction disappears. More of it later but first the case-law.
There is one more reason, why a person, who has prima facie, committed offence, as per evidence collected during investigation, should be joined as accused while taking cognizance, without waiting till evidence starts or some evidence is completed i.e. without waiting upto stage of Section 319, because, as per Section 319, if any person is joined as an accused, at a belated stage, all the proceedings in respect of such person shall be commenced afresh and witnesses will be re-heard. Section 319 of the Code of Criminal Procedure,1973, reads as under:
319. Power to proceed against other persons appearing to be guilty of offence-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub-section (1) then:
(a) the proceedings in respect of such person shall be commended afresh and witnesses re-heard;
(b) subject to the provisions of Clause (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
Thus, as per Clause (a) of Sub-section (4) of Section 319 of the Code of Criminal Procedure, in respect of such person all the witnesses, are to be re-heard. Thus, again all the witnesses will be required to be re-examined. Those accused not enlarged on bail, in that offence, will have to remain in jail. This will lead to further consumption of lot of time and memory power of the witnesses will be at a stake. Witnesses are coming to the Court after several years. The Court cannot expect photographic memory from every witness. The deposition depends upon their power of observation, memory and re-production in the court of law, after several months or after several years. If these witnesses are to be re-examined, again there are all chances of contradiction and omission. The aforesaid situation will be avoided, by joining a person as an accused while taking cognizance, if statements of witnesses are found clear and capable enough (on the basis of test of prima facie case) to induct any person as an accused, in exercise of the powers under Section 193 of the Code of Criminal Procedure. The competent trial court has all power, jurisdiction and authority to join such a person as an accused under the new Code of Criminal Procedure, 1973, as cognizance is to be taken of the offence and not of the offender. This aspect of the matter has been interpreted by the Hon’ble Supreme Court in the case of Kishun Singh and Ors. v. State of Bihar , relevant paragraphs 13, 14 and 15 thereof, read as under:
13. The question then is whether de hors Section 319 of the Code, can similar power be traced to any other provision in the Code or can such power be implied from the scheme of the Code ? We have already pointed out earlier the two alternative modes in which the Criminal Law can be set in motion; by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may culminate in a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190(1)(b) of the Code. In the latter stage, the Magistrate may either order investigation by the police under Section 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190(1)(a) or (c), as the case may be, read with Section 204 of the Code. Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under Section 191) or commit him for trial under Section 209 of the Code if the offence is triable exclusively by a Court of Sessions. As pointed out earlier cognizance is taken of the offence and not the offender. This Court in Raghubans Dubey v. State of Bihar stated that once cognizance of an offence is taken it becomes the Court’s duty “to find out who the offenders really are” and if the Court finds “that apart from the persons sent up by the police some other persons are involved, it is its duty to proceed against those person’ by summoning them because “the summoning of the additional accused is part of the proceeding initiated by its taking cognizance of an offence”. Even after the present Code came into force, the legal position has not undergone a change; on the contrary, the ratio of Dubey case was affirmed in Hareram Satpathy v. Tikaram Agarwala. Thus far there is no difficulty.
14. We have now reached the crucial point in our journey. After cognizance is taken under Section 190(1) of the Code, in warrant cases the Court is required to frame a charge containing particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was committed. But before framing the charge Section 227 of the Code provides that if, upon a consideration of the record of the case and the documents submitted therewith, the Sessions Judge considers that there is not sufficient ground for proceeding against the accused, he shall, for reasons to be recorded, discharge the accused. It is only when the Judge is of opinion that there is ground for presuming that the accused has committed an offence that he will proceed to frame a charge and record the plea of the accused (vide Section 228). It becomes immediately clear that for the limited purpose of deciding whether or not to frame a charge against the accused, the Judge would be required to examine the record of the case and the documents submitted therewith, which would comprise the police report, the statements of witnesses recorded under Section 161 of the Code, the seizure-memoranda, etc. etc. If on application of mind for this limited purpose, the Judge finds that besides the accused arraigned before him the complicity or involvement of others in the commission of the crime prima facie surfaces from the material placed before him, what course of action should he adopt ?
15. The learned Counsel for the State, therefore, argued that even if two views are possible, this being a mater of procedure not likely to cause prejudice to the person or persons proposed to be summoned, the court should accept the view which would advance the cause of justice, namely, to bring the real offender to book. If such an approach is not adopted, the matter will slip into the hands of the investigation officer who may or may not send up for trial an offender even if prima facie evidence exists, which may in a given situation cause avoidable difficulties to the trial court. Take for examine a case where two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challenged by the police, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34 IPC. If he cannot summon A, how does he frame the charge against B ? In such a case he may have to wait till evidence is laid at the trial to enable him to invoke Section 319 of the Code. Then he would have to commence the proceedings afresh in respect of the added accused and recall the witnesses. This, submitted counsel for the State, would result in avoidable waste of public time. Hen, therefore, submitted that this Court should p[lace construction which would advance the cause of justice rather than a stiffle it.
Thus, in view of the aforesaid decision, it has been held that the investigating agency cannot drop a person who is otherwise, as an accused as per the statements of witnesses and the Court has all power under Section 193 of the Code of Criminal Procedure, while taking cognizance of the offence to join a person as an accused, if he is found, prima facie, committed offence, from the statements of witnesses, and looking to other material collected during course of investigation. On the contrary, it is the duty of the court to find out a real offender and therefore, while taking cognizance of an offence, all papers of investigation must be read and if anybody is left out to be joined as an accused, then he ought to be joined as an accused if there is enough and sufficient material against him as per the opinion of the Court, which prima facie, involves him in commission of the crime.
(xii) It has been held by the Hon’ble Supreme Court in the case of Nisar and Anr. v. State of UP , especially in paragraph-9 thereof as under:
9. As regards the other contention of the appellants we may mention that this Court has in Kishun Singh v. State of Bihar categorically rejected a similar contention with the following observations: (SCC p 30, para 16).
Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Sessions by a Magistrate under the Code, the restriction placed on the power of the Court of Sessions to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Sessions, the bar of Section 193 is lifted thereby investing the Court of Sessions complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.
(xiii) It has been held by the Hon’ble Supreme Court in the case of Ranjit Singh v. State of Punjab especially in paragraphs 20, 21, 22 and 23 as under:
20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Curt to permit addition of new person or persons to the array of the accused. Of course, it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.
21. But then once more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to a miscarriage of justice), is the Sessions Court completely powerless to deal with such a contingency ?Once such situation is cited by the learned Judges through an illustration narrated in Kishun Singh case as follows: (SCC pp 29-30, para 15).
Where two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A where as the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challenged by the police, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34 IPC. If he cannot summon A, how does he frame the charge against B ?
22. Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of the accused due to some inadvertence or omission. Should the court wait until evidence is collected to get that person arraigned in the case ?
23. Though such situations may arise only in extremely rare cases, the Sessions Court is not altogether powerless to deal with such situations to prevent a miscarriage of justice. It is then open to the Sessions Court to send a report to the High Court detailing the situation sot hat the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes.
It has been held by the Hon’ble Supreme Court that if from the material produced, by Investigating Officer and before evidence is taken, it is revealed that any person is involved in committing an offence should have been joined an accused, then in such circumstances, the Sessions Court is not powerless. In such circumstances, it is open to the Sessions Court to make a report to the High Court dealing with such situation so that the High Court, in its inherent or revisional powers, direct the committal Magistrate to rectify the committal order by issuing process to such left out accused. In the facts of the case, as stated hereinabove, statement of prosecution witness No. 165 to be read with statement of prosecution witness Nos. 95 and 96 dated 26th April, 2007 and 27th June, 2007 respectively, are clear, unambiguous and unequivocal which prima facie, establishes involvement of Mr. V.A. Rathod in commission of offence. It is vehemently stated by the learned Counsel for Mr. V.A. Rathod that only evidence can dispel clouds of doubt and therefore, in a doubtful situation, no person should be joined as an accused without taking evidence as per Section 319 of the Code of Criminal Procedure. This argument is not accepted by this Court, mainly for the reason that looking to the statement of aforesaid witnesses, alongwith other panchnama of tempo Nos. 1 and 2 and of scene of offence, even prima facie, reading, reveals the fact that Mr. V.A. Rathod ought to have been joined as an accused. He is a left out person by the committing Magistrate. Even as per the application of the Investigating Officer dated 15th May, 2007, Mr. V.A. Rathod was shown as an absconding accused and he was not traceable to the Investigating Officer. He was not available to the Investigating Officer and therefore, a prayer was made to the Chief Metropolitan Magistrate for issuance of warrant under Section 70 of the Code of Criminal Procedure. For no reason whatsoever, he was dropped on 25th May, 2007 alongwith another dropped person Mr. N.V. Chauhan. For any reason whatsoever, Mr. N.V. Chauhan is re-inducted as an accused as per the application preferred by the Investigating Officer dated 15th June, 2007 and now N.V. Chauhan is joined as accused No. 13, whereas, Mr. V.A. Rathod is shown as prosecution witness No. 166. This is an error apparent on the face of the record. Prima facie reading of the statements of witnesses as stated hereinabove, alongwith various panchnamas, Mr. V.A. Rathod ought not to have been dropped but should have been joined as an accused. Investigating Officer cannot give pardon as per Section 306 of Criminal Procedure Code to all accused. I see no reason to wait upto the stage of taking evidence under Section 319 of the Code of Criminal Procedure, otherwise, again witnesses will have to be re-examined for the benefit of the newly joined accused, as per Section 319(4)(a) of the Criminal Procedure Code, which leads to several dire effects on Sessions case, over and above delay and to remain in jail (for those who are not enlarged on bail). Witnesses memory power will be again tested, which may lead to omissions and contradictions.
(xiv) The learned Counsel Mr. B.N. Patel for Mr. V.A. Rathod further submitted whether Sessions Court has power under Section 193 of the Code of Criminal Procedure to join any person as an accused, this matter has been referred to the larger bench of the Hon’ble Supreme Court, in the case of Kishori Singh v. State of Bihar reported in (2004) 13 SCC, 9 and therefore, Reference ought to be dismissed. In view of the aforesaid three decisions of the Hon’ble Supreme Court, ; and (1998) SCC, 149, Sessions Court has correctly preferred Reference before this Court, instead of directly joining any person as an accused. Methodology has already been shown by the Hon’ble Supreme Court in such type of situation, when evidence collected by prosecution, reveals a person as an accused, whereas, in the charge-sheet, the said person is dropped as accused and it has been held as stated hereinabove, that the Court is not powerless, while taking cognizance of the offence under Section 193 of the Code of Criminal Procedure. Reference ought to be made to the High Court and High Court in its inherent powers or revisional jurisdiction, can join a person as an accused. This ratio decidendi, propounded by the Hon’ble Supreme Court, while interpreting the provisions of the Code of Criminal Procedure, 1973, is not overruled as on today and the same is binding to this Court under Article 141 of the Constitution of India. Also as stated hereinabove, the facts are so clear that Mr. V.A. Rathod ought to be joined as an accused. There is no ambiguity or equivocalness in the statements of prosecution witnesses. There is enough corroboration to the statement given by Nathubha Jadeja, p.w. No. 165 dated 26th April, 2007. Also, all the accused persons of this offence are in jail, witnesses will have to, store in their memory, the event for longer time. Memory becomes faint day by day. As per Section 319(4)(a) of Criminal Procedure Code, proceedings in respect of newly joined accused will have to be commended afresh and witnesses are required to be re-heard.
(xv) There is also one more correspondence which has been pointed out to this Court dated 7th May, 2007 written by the Deputy Superintendent of Police of Crime Investigating Cell, CID crime, State of Gujarat, Gandhinagar to Inspector General of Police, (Crime-I), CID, State of Gujarat. In this application, Investigating Officer has written a letter clearly narrating Mr. V.A. Rathod as an accused. Thus, the mind of Investigating Officer was very very clear on more than one occasion, on the basis of the statements of witnesses and panchnamas drawn during the course of investigation. Looking to this correspondence dated 7th May, 2007, the role of as many as 13 persons has been summarised. Looking to the role played by Mr. V.A. Rathod, p.w. No. 166, the Investigating Officer has narrated him as an accused. The aforesaid letter dated 7th May, 2007 has been written by Mr. G.B. Padheria, Deputy Superintendent of Police to Inspector General of Police (Crime-I), CID crime, Gandhinagar. He has informed that following 13 persons are accused:
(01) M.L. Parmar, Deputy Superintendent of Police, CID (Intelligence) Gujarat State, Gandhinagar.
(02) Naransinh Harisinh Dabhi, Police Inspector, CID (Intelligence) Modasa unit.
(03) Balkrushna Rajendraprasad Chaube, Police Sub Inspector, at present Police Inspector, SRP Group-IX, Vadodara.
(04) Abdul Raheman Abdul Rasid Shaikh, Police Inspector, Udepur, Rajasthan.
(05) Himanshusing Mohansing Rajava, Police Sub Inspector, Udepur, Rajasthan.
(06) Shyamsing Jaysing Charan, Police Sub Inspector, Udepur, Rajasthan.
(07) V.A. Rathod, Police Inspector, ACB, Shahibaug, Ahmedabad.
(08) N.V. Chauhan, Police Sub Inspector, GRD, Police Sub Inspector, Mahesana.
(09) Ajay Bhagwandas Parmar, Police Constable, GEB police station, Sabarmati, Ahmedabad.
(10) Santram Chandrabhan Sharma, Police Constable, SRP group-12, Gandhinagar.
(11) Nathubha P Jadeja, Police Inspector, SRP group-III, Madana, Palanpur.
(12) Gurudayalsing Gangasay Chaudhary, Driver, SRP group-12, Gandhinagar.
(13) Bhailalbhai Kodarbhai, Driver, SRP group-VII, Nadiad.
Thus, it appears that even Investigating Officer was also of the opinion on 7th May, 2007 that Mr. V.A. Rathod is an accused. Even in their application dated 15th May, 2007, he was shown as an absconding accused and for no reason whatsoever, his name has been dropped from the list of accused persons.
Thus, as a cumulative effect of the aforesaid facts and looking to the statements of witnesses, Mr. V.A. Rathod ought to have been joined as an accused and not as a prosecution witness.
(xvi) It has been held by the Hon’ble Delhi High Court in the case of The State v. C.S. Rathore reported in 2001 Criminal Law Journal, 761, especially in para-4 thereof as under:
I have heard Mr. C.S. Rathore in person, who has submitted that in view of the bar under Section 319 of the Code of Criminal Procedure, the Court of Sessions has no power to add an accused without recording evidence. He contends that eventhough the learned Additional Sessions Judge has made a reference, it is not open to the High Court to turn the clock back, requiring the Committal Magistrate to rectify error, under its inherent or its revisional jurisdiction because such a power cannot be invoked by making a reference. I am unable to agree with the contentions and submissions of Mr. C.S. Rathore. In Criminal Appeal No. 982/1998 Ranjit Singh v. State of Punjab 1998(7) AD (SC)217 : 1998 Criminal Law Journal 4618, it is held that upon reference being made to the High Court by the Court of Sessions to rectify an error committed by the Committal Court, the High Court would be well within its power to do so. It would be appropriate to quote the judgment of Supreme Court on this object (Paras 20 to 22 of Criminal Law Journal):-xxx xxx xxx
Thus, in view of the aforesaid decision also, the Sessions Court has all power to make a Reference to this Court to rectify the error committed by the committal court and it is within the power of the High Court, looking to the statements of witnesses on record and looking to other material collected during the course of investigation to direct the committal court to rectify the error and to join a person as an accused.
(xvii) It has been argued by Additional Public Prosecutor for the State as well as by the learned Counsel of Mr. V.A. Rathod, that accused who have preferred applications below Exh. 27 and 29 for joining Mr. V.A. Rathod has no locus standi and only State has prerogative power to move such application is not accepted by this Court. Such application can be moved by any person viz. complainant, witness or an accused. It works as reminder to the Court to exercise powers to join a person as an accused, if, prima facie, found committed an offence, looking to evidence collected during course of investigation. It has been decided by the Hon’ble Kerala High Court in the case of Vasudevan Nair v. State of Kerala reported in 2005 Criminal Law Journal, 1457, relevant para-6 reads as under:
6. Section 319(1) reads as under:
319. Power to proceed against other persons appearing to be guilty of offence:- Where, in the course of any inquiry into or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offfence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
Section 319(1) of the Code deals with the power of the Court to proceed against any person to be guilty of an offence. Section 319(1) of the Code of Criminal Procedure provides that if in course of any enquiry into, or trial of, an offence, it appears from the evidence that such person not being the accused has committed any offence for which he could be tried together with the accused the Court may proceed against him. A reading of Section 319(1) shows that the power under this Section can be exercised by the Court suo motu or on application of any person. In fact, the Section does not contemplate an application at all by the prosecution. This is a discretionary power conferred on the Court. But that discretion must be exercised judicially having regard to the facts and circumstances of each case. A reading of Section 319 of the Code of Criminal Procedure shows that no special right is given to the prosecution. An application can be filed by any person including the accused already before Court. In fact, a complaint or a witness who had witnessed the incident can also move the Court. That application is actually a reminder to the Court so as to enable the Court to exercise the powers conferred on it. If there is evidence to show that any person other than the accused already arraigned in the case has committed any offence for which he can be tried together with the accused, the Court can proceed against him also.
In view of the aforesaid decision, the contention raised by the learned Additional Public Prosecutor that the accused has no locus standi to prefer application, is devoid of merits. The application preferred by the accused is actually a reminder to the Court so as to enable the Court to exercise powers conferred on it. An application can be filed by any person including an accused already before the Court. Challenge of locus standi in such type of application for joining a person as accused, in criminal jurisprudence is a somewhat unknown. Anybody -complainant, witness or an accused can put criminal law in motion. The accused are the highest affected persons and therefore, I am not accepting the contention of the learned Additional Public Prosecutor that accused Nos. 12 (applicant of exh.29), or accused No. 1,6 and 13 (applicants of application below exh. 27) have no locus standi.
(xx) Much is said about the statement made by Mr. V.A. Rathod time and again. In this case, several witnesses have given further statements. Mr. V.A. Rathod is no exception to this. But if statement of Mr. V.A. Rathod is looked into closely, it appears that he has dropped several facts, which are coming on record, otherwise from the statements of other witnesses, corroborated by enough number of panchnamas. If this person viz. Mr. V.A. Rathod is cited as a prosecution witness, perhaps, several facts may not come on record. As this Court is concerned only with joining a person as an accused, is not much analysing the statements and effect of such statements and how and what corroboration by various panchnamas. Suffice it to say that there is enough material against Mr. V.A. Rathod to be joined as an accused and therefore, there is an error committed by the Committal Magistrate in not joining Mr. V.A. Rathod as an accused.
9. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, this Reference is answered and allowed. The learned Chief Metropolitan Magistrate, Ahmedabad is hereby directed to add the name of Mr. Vijaykumar, son of Arjunbhai Rathod, Police Inspector, as an accused in the committal order to stand trial before the Court of Sessions, arising out of ATS police station Cr. No. I-5 of 2005 (Sessions case No. 256 of 2007) for the offences punishable under Sections 302, 365, 368, 120-B, 201, 44 and 193 of the Indian Penal Code and Sections 25(1) and 27 of the Arms Act and to rectify the committal order. This Reference is answered accordingly and disposed of.
10. The learned Additional Public Prosecutor as well as the learned advocate for Mr. V.A. Rathod pray for the stay of this judgment for a period of eight weeks. The aforesaid request is strongly opposed by the learned advocates Mr. Verma and Mr. B.B. Naik, for the reason that they are in jail since long i.e. from April, 2007 onwards. In view of these facts and also for the reasons stated hereinabove, I am not inclined to accept the request made by the learned Additional Public Prosecutor as well as by the learned advocate for Mr. V.A. Rathod. Hence, the request is not acceded to. The Registry is hereby directed to send the Record and proceeding of the aforesaid Sessions case to the committal court immediately.