S.K.Dhaon - (1.) THREE persons, who are admittedly employees of the applicant, were being prosecuted for cutting a cable owned by the Obra Thermal Power Project, a State Government undertakiag. In fact, it is a part of the U. P. State Electricity Board. During the course of the trial the Munsif Magistrate, in exercise of the powers under section 319 of the Code of Criminal Procedure (hereinafter referred to as the Code, called upon the applicant to defend himself along with the other accusal Thereafter, the applicant appeared before the Magistrate and a charge was framed as against him. Proceedings are still going on before the learned Magistrate. Now, the applicant has invoked the jurisdiction of this Court under section 482 of the Code.
(2.) BEFORE the learned Magistrate one of the prosecution witnesses had stated that the accused, at the time or' their arrest, had stated that they were the employees of the applicant and they were cutting the cable under the orders of the applicant, who was described as the Contractor. The accused persons, in their statements recorded under section 313 of the Code, gave the same version as of the said prosecution witness. From the material placed before me, I am, prima- facie satisfied that the offence took place in the precincts of the Obra Thermal Power Project. It also appears that the place of occurrence was, at the relevant time, not open to the visit of all and sundry and there was a restricted entry. It is also evident that the applicant was at the relevant time either owning or controlling a Misra and Company. It also appears that this Company had taken some work contract which was going on within the restricted area. It is on record that the Obra Thermal Power authorities had issued gate passes to Misra and Company and these gate passes were recovered from the said three employees of Misra and Company. Section 319 of the Code provides that where, in the course of any enquiry 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. Laying emphasis on the words italicised, learned counsel for the applicant argued that there was no legal evidence before the Magistrate so as to warrant his action under section 319. Learned counsel urged that the deposition of the accused recorded under section 313 of the Code did not constitute any evidence.
(3.) IT is well-known that evidence can be either oral or documentary or circumstantial. Section 319 embraces in it all tide three types of evidence. IT is true that the statement of an accused in proceedings under section 313 does not constitute evidence in the strict sense of the term but it does not mean that the same should be ignored altogether. In State of Maharashtra v. Dr. R. B. Chaudhari, AIR 1968 SC 110 the Supreme Court considered the value of the statement of an accused recorded in proceedings under section 342 of the Code of Criminal Procedure, 1898, with which the provisions of Section 313 of the Code are in pari materia. IT was observed :- ".........No doubt in the Code of Criminal Procedure the statement of an accused should be taken into consideration in an enquiry or trial but it is not strictly evidence in the case. " In Vijendrajit Ayodhya Prasad Goel v. State of Punjab, AIR 1953 SC 247 godown from where the rectified spirit; was recovered was in the possession of the accused. In his statement under section 342 of the Old Code the accused admitted that he was incharge of tie godown. The prosecution had led evidence that the godown from where the rectified spirit was recovered was in possession of the accused. The argument was that the conviction of the accused could not be based on his statement. This was repelled by the Court thus :- ".........As the appellant admitted that he was Incharge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under section 342 as supporting the prosecution case concerning the possession of the godown ........." It will thus be seen that the contention that the depositions of the accused recorded under section 313 of the Code in the instant case are wholly irrelevant and cannot be taken into consideration for any purpose whatsoever is not sound. The law concerning the appreciation of the circumstantial evidence is Well-known. It is true that such evidence should be incompatible with the innocence of the accused and should lead to no other hypothesis but to the guilt of the accused. It is also well-known that a prima- facie case can be made out against an accused person on the basis of circumstantial evidence. The prosecution is not bound to explain the circumstances. It is also well- known that a suspicious circumstance is augmented if no explanation is forthcoming.;