Case Note & Summary
The petitioner, Milind Manohar Apte, a Sales Officer of Bharat Petroleum Corporation Limited, filed a criminal writ petition challenging the order dated 14.5.2007 passed by the Judicial Magistrate First Class, Court No.7, Dhule, in RCC No.250/2005. The Magistrate had allowed an application (Exh.16) filed by the original accused nos. 1 and 2 (respondents 2 and 3 herein) to arraign the petitioner and one Sanjay Narvekar as co-accused. The background of the case is that on the complaint of respondent no.4 (Municipal Corporation, Dhule), crime no.5/2005 was registered against respondents 2 and 3 for offences under Sections 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966. After investigation, a charge sheet was filed only against respondents 2 and 3. During the pendency of the case, respondents 2 and 3 filed an application contending that the complaint also named the petitioner and Sanjay Narvekar as officers of Bharat Petroleum, and without explanation they were not made accused. The Magistrate allowed the application and arraigned the petitioner as accused no.3. The petitioner challenged this order on the ground that the Magistrate had not applied his mind and had mechanically allowed the application. The High Court, after hearing the counsel, held that the Magistrate's order suffered from an incorrect approach. The court noted that the power under Section 319 CrPC is discretionary and must be exercised only if there is sufficient evidence against the person sought to be added. In this case, the Magistrate did not record any satisfaction that the petitioner could be tried jointly with the existing accused. The court also observed that the investigating agency had not found sufficient evidence against the petitioner, and the complaint did not disclose any specific role of the petitioner. Therefore, the impugned order was quashed and set aside, and the application Exh.16 was dismissed. The writ petition was allowed.
Headnote
A) Criminal Procedure Code - Section 319 - Power to arraign accused - The Magistrate's power under Section 319 CrPC to summon additional accused is discretionary and must be exercised only if there is sufficient evidence against such person from the record. In the present case, the Magistrate allowed the application without recording any satisfaction that the petitioner could be tried jointly with the existing accused, and thus the order was set aside. (Paras 1-3)
B) Maharashtra Regional and Town Planning Act, 1966 - Sections 52 and 53 - Offences - The complaint and charge sheet only named respondents 2 and 3 as accused. The petitioner, an officer of Bharat Petroleum Corporation Limited, was mentioned in the complaint but not charge-sheeted. The Magistrate's order to add him as accused was quashed as it was based on the application of co-accused without independent judicial scrutiny. (Paras 2-3)
Issue of Consideration
Whether the Magistrate was justified in allowing the application under Section 319 CrPC to arraign the petitioner as an accused when the investigating agency had not found sufficient evidence against him and the complaint did not disclose any specific role of the petitioner.
Final Decision
The High Court allowed the criminal writ petition, quashed and set aside the impugned order dated 14.5.2007 passed by the Judicial Magistrate First Class, Court No.7, Dhule, below Exh.16 in RCC No.250/2005, and dismissed the application Exh.16.
Law Points
- Section 319 CrPC
- power to arraign accused
- judicial discretion
- investigation
- charge sheet
- complaint
- Maharashtra Regional and Town Planning Act
- 1966
Case Details
2016 LawText (BOM) (11) 1
Criminal Writ Petition No. 686 of 2007
Mr G K Thigle (for petitioner), Mr S P Tiwari (APP for respondent 1), Mr S P Shah (for respondent 4)
The State of Maharashtra, Anil Vasant Badgujar, Gulab Vasant Badgujar, The Municipal Corporation, Dhule
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Nature of Litigation
Criminal writ petition challenging the order of the Magistrate allowing application to arraign the petitioner as an accused in a case under the Maharashtra Regional and Town Planning Act, 1966.
Remedy Sought
The petitioner sought quashing of the order dated 14.5.2007 passed by the Judicial Magistrate First Class, Court No.7, Dhule, in RCC No.250/2005, which arraigned him as accused no.3.
Filing Reason
The petitioner was aggrieved by the Magistrate's order allowing the application of the original accused (respondents 2 and 3) to add him as a co-accused, despite the investigating agency not finding sufficient evidence against him.
Previous Decisions
The Judicial Magistrate First Class, Court No.7, Dhule, by order dated 14.5.2007, allowed the application Exh.16 and arraigned the petitioner as accused no.3 in RCC No.250/2005.
Issues
Whether the Magistrate was justified in allowing the application under Section 319 CrPC to arraign the petitioner as an accused when the investigating agency had not found sufficient evidence against him and the complaint did not disclose any specific role of the petitioner.
Submissions/Arguments
The learned counsel for the petitioner submitted that the impugned order suffers from an incorrect approach adopted by the Magistrate. Though the petitioner's name was mentioned in the complaint, after due investigation a charge sheet was submitted only against respondents 2 and 3. The Magistrate mechanically allowed the application without recording any satisfaction that the petitioner could be tried jointly with the existing accused.
Ratio Decidendi
The power under Section 319 CrPC to summon additional accused is discretionary and must be exercised only if there is sufficient evidence against such person from the record. The Magistrate cannot mechanically allow an application without recording satisfaction that the person can be tried jointly with the existing accused. The investigating agency's decision not to charge-sheet the petitioner is a relevant factor.
Judgment Excerpts
Being aggrieved by the order dated 14.5.2007 passed by the Judicial Magistrate First Class, Court No.7, Dhule below Exh.16 in RCC No.250/2005 the person arraigned/added as an accused at the instance of original accused nos. 1 and 2 preferred this criminal writ petition.
The learned counsel for the petitioner submits that, though name of the present petitioner is mentioned in the complaint lodged with the police station, after due investigation a charge sheet came to be submitted against present respondents no.2 and 3 only.
Procedural History
On the basis of a complaint by respondent no.4, crime no.5/2005 was registered against respondents 2 and 3 under Sections 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966. After investigation, a charge sheet was filed against respondents 2 and 3 in RCC No.250/2005 before the Judicial Magistrate First Class, Court No.7, Dhule. During the pendency of the case, respondents 2 and 3 filed an application (Exh.16) to arraign the petitioner and Sanjay Narvekar as co-accused. The Magistrate allowed the application on 14.5.2007, adding the petitioner as accused no.3. The petitioner then filed the present criminal writ petition challenging that order.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 319
- Maharashtra Regional and Town Planning Act, 1966: 52, 53
