Judgment:
Cr.R.No.216/2013 Cr.R.No.414/2013 13.3.2013 Shri Pradeep Naveriya, counsel for the applicants.
Shri Ajay Tamrakar, Panel Lawyer for the respondent/State.
As prayed by learned counsel for the parties matter is heard finally.
Both the revisions applications are connected with the same order and therefore, decided by the common order.
The applicants have challenged the order dated 7.1.2013 passed by the learned JMFC, Patan, District Jabalpur in Criminal Case No.982/2006 whereby the application dated 6.10.2007 filed by the prosecution under Section 190 of the Cr.P.C was accepted.
Facts of the case in short is that, a trial for offence punishable under Section 420, 467, 471 of I.P.C was going on against one Bhaghirath Chadhar.
The trial Court took cognizance against Bhaghirath Chadhar and framed the charges against him.
Thereafter, an application under Section 190 of Cr.P.C was moved by the prosecution to add the applicants to be accused in the case and vide impugned order dated 7.1.2013 the learned JMFC, Patan has accepted the application under section 190 of the Cr.P.C.After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that no charge sheet was filed against the applicants from the very beginning.
Stage of Section 190 of the Cr.P.C arises when the trial Court takes cognizance in the case.
It is apparent that the trial Court took the cognizance against Bhagirath Chadhar and framed the charges against him and thereafter, the application under Section 190 of Cr.P.C was moved.
Cognizance of offence by Magistrate can be taken under section 190 of Cr.P.C if a Police report is submitted of such facts.
A Police report was submitted by way of a charge sheet which was containing the facts and evidence against the applicants but the charge sheet was not filed against the applicants.
The reason may be best known to the investigation officer and the concerned SHO.
However, after framing the charges against the accused Bhagirath Chadhar the stage under section 190 of the Cr.P.C was already gone.
No application under section 190 of the Cr.P.C could be entertained thereafter, because it was not a fresh report under section 190 of the Cr.P.C, the Police could file a supplementary challan under section 173(8) of the Cr.P.C but no supplementary charge sheet was filed and therefore, at that belated stage the Magistrate could not take cognizance against the other persons under Section 190 of Cr.P.C.If stage of Section 190 of Cr.P.C is gone then the prosecution or any witness has no option except to move an application under Section 319 of Cr.P.C against the applicants to add them as accused in the case.
The application under section 319 of Cr.P.C can be moved if some substantial evidence is recorded before the trial Court.
Under such circumstances, the learned Magistrate has committed an error of law that cognizance was taken under Section 190 of the Cr.P.C after the framing of charges against Bhagirath Chadhar.
No such application could be accepted.
Looking to the legal error committed by the JMFC, Patan it is a fit case in which an interference can be done from the side of this Court.
Consequently, the revision filed by the applicants is hereby allowed.
The impugned order dated 7.1.2013 is hereby set aside.
If the prosecution desires to implicate the applicants in the case as accused then an appropriate couRs.be adopted by the prosecution.
At present the trial Court shall proceed with the case against those accused persons who were the accused prior to the order dated 7.1.2013.
Copy of the order be sent to the trial Court for information and compliance.
(N.K.Gupta) Judge bina