Kamleshwar Nath - (1.) THIS petition, under Section 482 CrPC, is directed against so much of the order, dated 20-11-1982, passed by Sri Brahma Singh, III Additional Sessions Judge, Gonda, whereby petitioner Narendra Kumar Srivastava has been directed to be impleaded as co-accused in a criminal trial for an offence under Section 409 IPC.
(2.) PETITIONER Narendra Kumar Srivastava was a Naib Tehsildar when certain monies were defalcated from the treasury of which Ram Iqbal Vishwa- fcarma was treasury officer, Ram Vibhuti Ram, opposite party no. 3, was Tehsildar, and opposite party no. 4 Munna Singh was cashier. Ram Vibhuti Ram made a report to the police against Munna Singh stating that he had taken away the keys of the single lock and certain boxes. When an inspection was made by the Treasury Officer, by breaking open the lock, not only of the single lock but also the double lock, certain monies were found short. The Treasury Officer, Ram Iqbal Vishwakarma, then lodged two separate reports regarding defalcation of monies against Ram Vibhuti Ram and Munna Singh. The reports having been investigated, charge sheet was submitted to the court against Ram Vibhuti Ram and Munna Singh. Munna Singh raised a plea of non-maintainability of prosecution in the absence of sanction under Section 197 CrPC. His objection having been over-ruled, he filed Cr. Revision No. 97 of 1982 which figured for disposal before Sri Brahma Singh, III Additional Sessions Judge, Gonda, resulting in the impugned order. Besides other observations, the learned Additional Sessions Judge observed that the record prima facie showed that the Tehsildar (Ram Vibhuti Ram) and Naib Tehsildar (petitioner, Narendra Kumar Srivastava) connived in misappropriating the government money. He upheld the view of the trial court that sanction was not required and while dismissing the revision directed, inter alia, that the petitioner Narendra Kumar Srivastava be impleaded as a co-accused. Learned counsel for the petitioner contends that the learned Additional Sessions Judge, while acting under the provisions of Section 397 CrPC as a court of revision, was not competent to direct that the petitioner be impleaded as a co-accused. It has been urged by the learned counsel for opposite party no. 3, Ram Vibhuti Ram, that the learned Additional Sessions Judge was competent to pass the impugned order in view of the powers contained in Section 319 (1) CrPC. His contention has been supported by the learned Government Advocate.
(3.) SECTION 319 (1) CrPC runs as follows :- " 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." The important expression in this provision is "in the course of any inquiry into or trial of an offence". The question is whether a court exercising its jurisdiction under SECTION 397 CrPC can be said to be a court holding an inquiry or a trial. The Code of Criminal Procedure has distinct provisions for holding an inquiry, trial or a revision and it appears to me that exercise of jurisdiction in revision cannot bus said to be an exercise of jurisdiction in the course of an inquiry or a trial. Learned counsel for opposite parties contend that if the powers exercisable under Section 319(1) CrPC are confined to those exercisable only by a Magistrate, then the entire purpose would be frustrated. The statute, as it stands, has to be given its plain meaning. The expression 'inquiry', 'trial', 'appeal' and 'revision' have been used in the Code of Criminal Procedure to signify distinct proceedings governed by distinct procedures, and it is not open to extend the procedure of one kind of proceeding into that of the other. It is a different matter that in one particular type of proceeding, another type of proceeding may arise and the two types of proceedings may be conducted in their own independent way. This, in a revision under Section 397 CrPC, occasion may arise to hold an inquiry for an offence under Section 193 IPC; but the revision and the inquiry would have to be held in their own way according to their separate procedures.;