- (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. 1-5 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 another V/s. STATE OF BIHAR REPORTED IN (1993) 2 SCC 16; in THE CASE OF NISAR AND ANOTHER VS. STATE OF U. P. REPORTED IN (1995) 2 SCC 23; IN THE CASE OF RANJIT SINGH vs. STATE OF PUNJAB (1998) 7 SCC 149 AND IN THE CASE OF dharam PAL AND OTHERS VS. STATE OF HARYANA AND another 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 vs. 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 vs. 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.