1. The facts giving rise to this revision petition may be succinctly stated as under :-
On 16th August, 1976, Shri S. D. Prasad, the then Joint Secretary, Ministry of Steel, Govt. on India, handed over an important cabinet draft note for the selection and appointment of Mining Associate and Engineer contractor for the Kudremukh Iron Ore Project to Shri P. N. Chopra, Desk Officer for check up and making consequential changes and corrections. Shri Chopra placed the said document on his table. Rajinder Singh, accused in the instant case who was then working as Senior Private Assistant to Shri S. N. Acharaya, Joint Secretary, department of Steel, went to the room of Shri Chopra and had a cup of coffee. He then saw the said draft note. On return to his own room Shri Rajinder Singh asked Shri Hukam Chand, who was then working as Jamadar (Sweeper) under Shri S. N. Acharaya to remove the said draft note from the table of Shri P. N. Chopra. Accordingly at about 2.00 p.m. when Shri P. N. Chopra was not present there, Hukam Chand stealthily removed the said draft note and gave it to Shri Rajindra Singh. The latter in turn passed of the same to the contractor through Shri S. M. Wahi (the present petitioner), Surinder Wahi and their driver Jagdish Chand.
2-3. On return to his room after about 10/15 minutes, Shri P. N. Chopra did not find the said draft note on his table. So he made a thorough search and inquiry about the same. He even talked to his Joint Secretary. Eventually failing to locate the missing papers he lodged a report with the Central Bureau of Investigation on 21st August, 1976, stating that the said draft note had been stealthily removed from his office by some interested person with some ulterior motive and dishonest intention. A case under S. 380/414, I.P.C. being R.C. No. 56/76, was registered on its basis. On 11th March, 1977, the Central Bureau of Investigation filed a charge-sheet against Shri Rajinder Singh for his prosecution under S. 380/414 I.P.C. It transpired during the course of investigation that since about March 1976, Shri Rajinder Singh accused, had been getting important documents of the Kudremukh Project removed through Hukam Chand from the room of Shri S. D. Prasad and he used to pass on those original documents to the contractor through Shri S. M. Wahi, surinder Wahi and their driver Jagdish Chand. However, those documents used to be returned to Shri Rajinder Singh after one or two days and surreptitiously replaced in the room of Shri S. D. prasad, Shri Rajinder Singh used to get Rs. 500/- each time he passed on documents to Shri S. M. Wahi or his associates. Out of the said money, Rajinder Singh used to give amounts ranging between Rs. 75/- to Rs. 100/- to Hukam Chand. However, Rajinder Singh could not get an opportunity to replace the aforesaid draft note because of the hue and cry raised by Shri P. N. Chopra soon after its disappearance from his table. So, he preferred to keep quite. However, on 16th September, 1976 Shri Rajinder Singh went to the house of Shri P. N. Chopra and made a clean breast of the whole thing. Similarly on 24th September, 1976, Hukam Chand made a confessional statement before a Metropolitan Magistrate which was duly recorded under section 164 Cr.P.C. (for short the Code). Subsequently, Hukam Chand was granted pardon under section 306 of the Code on 21st February, 1977.
4. The Approver Hukam Chand was Examined as P.W. 1 on 20th March, 1980 and he unfolded the prosecution narrative. On 17th November, 1980, Rajinder Singh, accused, made an application under section 319 of the Code for prosecuting S. M. Wahi, Surinder Wahi and their driver Jagdish Prasad also along with him because the allegations against them were that they had abetted him i.e. Rajinder Singh, for the removal and disposal of the aforesaid documents. In the reply filed by the State (C.B.I), they pointed out that the only evidence involving Shri S. M. Wahi, Surinder Wahi and Jagdish Chand was the confessional statement made by the Approver Hukam Chand. Since he was an accomplice and his evidence required corroboration in material particulars by some other independent witness, the aforesaid persons were not prosecuted for want of such evidence. However, after hearing the parties the learned Additional Sessions Judge vide impugned order dated 24th October, 1981, directed that Shri S. M. Wahi, Surinder Wahi and Jagdish Chand, who had been named by the Approved in his statement in Court, be also summoned as accused persons to stand trial for offences under section 380/414 IPC. He observed that all that had to be seen at that stage was whether there existed some prima facie evidence for summoning a person other than the accused and such evidence was available in the statement of the Approver.
5. The learned counsel for the petitioner has canvassed with great fervour that in the absence of sufficient evidence to warrant conviction of the petitioner, the learned Additional Sessions Judge was not justified in invoking the provisions of Section 319 of the Code, especially when the Central Bureau of Investigation had specifically pointed out that conviction of an accused person could not rest on the uncorroborated testimony of an Approver which was the only evidence involving the petitioner in the commission of the aforesaid offence. Reliance in this context has been placed by him on Raghubans Dubey v. State of Bihar, : 1967CriLJ1081 and Joginder Singh v. State of Punjab, : 1979CriLJ333 . However, as shall be presently seen, these authorities are of no avail to him.
6. Section 319 provides that where the Court hearing a case against certain accused finds from the evidence that any person other than the accused before it is also concerned in that very offence or in any offence for which he could be tried together with the accused, it may proceed against such person for the offence which he appears to have committed. Thus, under section 319(1) the Court has power to add any person not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. The words 'it appears from the evidence that any person not being the accused has committed any offence' appearing in the said Section are very significant and provide a key to the proper construction of the same. On their plain meaning all that they connote is that there must be some legal evidence on the record showing involvement of any person other than the accused before the Court in the commission of an offence. Of course, the evidence must be sufficient to make out a prima facie case against such a person and satisfy all the essential ingredients constituting the offence for which he is sought to be prosecuted. However, the Court at that stage is not called upon to evaluate or appraise the evidence with a view to assess whether the evidence is sufficient for his ultimate conviction. In Joginder Singh's case (1979 Cri LJ 333) (SC) (supra) the Supreme Court was primarily concerned with the question whether the Sessions Court could have recourse to Section 319(1) for summoning additional persons as accused who appeared to be involved in the crime from the evidence led during the trial and direct them to stand trial along with those who had already been committed under S. 209 of the Code. It was in this context that their Lordships observed that. :
'..... A Sessions Court will have the power to add any person, not being the accused before it, out against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused ......'
7. To my mind, this observation simply means that the evidence on the record should be sufficient to show that any person other than the accused before the Court is also concerned in the commission of crime. Surely it cannot be stretched to further imply that the evidence must be sufficient even to warrant conviction of such a person if tried alone with other accused already before the Court. Thus, the sufficiency of evidence has to be looked at for the purpose of framing a charge and not with an eye on the ultimate conviction of such a person. It is for the simple reason that while considering the evidence which has come on the record and which indicates involvement of such person other than the accused in the commission of an offence, the Court is not required to evaluate or appraise the evidence, as it will amount to pre-judging the issue. That is the precise reason why sub-section (4) of Section 319 requires that the proceedings in respect of such persons shall be commended afresh and the witnesses re-heard. It will naturally involve the process of framing of the charge, and recording the evidence of the witnesses in the presence of the newly added accused. As for the observation of the Supreme Court that the 'the Magistrate is entitled to summon additional accused against whom he considers that there was good evidence' appearing in Raghubans Dubey's case (1967 Cri LJ 1081) (SC) (supra) suffice it to remark that the same was made in a different context. The question therein was whether after taking cognizance of an offence under section 190(1)(b) the Magistrate was competent to summon additional accused even though such an accused had been dropped and was not sent up for trial by the police in final report under Section 173. Evidently the Supreme Court was not called upon to consider the ambit and scope of S. 319.
8. Coming to the merits of the instant case, there is, in the first instance, evidence of the approver. He clearly involves the petitioner along with the principal accused Rajinder Singh. The law is well settled that even though an accomplice is a competent witness and a conviction may lawfully rest upon his uncorroborated testimony (Section 133 of the Evidence Act) yet in view of S. 114, Illustration (b) Evidence Act, the Court will not accept such evidence unless he is corroborated in material particulars by some independent evidence. So even though the evidence of the approver may not be sufficient to warrant his conviction it does indicate ex facie involvement of the petitioner in the commission of offence along with Rajinder Singh.
9. The learned counsel for Rajinder Singh accused, on whose application the petitioner has been summoned to face trial, has pointed out that besides the evidence of the Approver there is sufficient material on the record to support the prosecution version. One Sunder Lal, who was a Peon-cum-Driver of the petitioner has been cited as a prosecution witness to prove that the petitioner had close links with Rajinder Singh and he used to meet him quite often. Further one Roshan Lal, who is Private Assistant to the Joint Secretary, has also been cited as a witness to prove that the petitioner used to visit the office of the Joint Secretary and see Rajinder Singh quite often. Lastly, there is extra-judicial, confession of Rajinder Singh which was made before Shri P. N. Chopra. No doubt Rajinder Singh has since retracted from the alleged confession but it may not be possible to ignore the same altogether. The Evidence Act nowhere provides that a retracted confession cannot be taken into consideration against the co-accused. Of course, it can be used only in support of other evidence and cannot be made the foundation of a conviction. (See Mohd. Hussain Umar Kochra v. K. S. Dalipsinghji, : 1970CriLJ9 . Anyhow it is for the trial Court to assess and evaluate the whole of the evidence at the appropriate stage in proper perspective for arriving at the conclusion whether the same warrants conviction of the petitioner or not. It would be neither desirable nor proper for this Court to comment upon it at this stage. Surely it cannot be said to be a case where there is no legal evidence to indicate prima facie the involvement of the petitioner in the commission of the offence.
10. Another contention raised by the learned counsel for the petitioner is that an accused has no right to demand or ask for the trial of some one else along with him even though he is an accomplice. Thus, the learned Additional Sessions Judge slipped into a grave error in summoning the petitioner at the instance of Rajinder Singh accused. He has adverted to a couple or reported judgments of Bombay High Court, viz., Narayandas Kedarnath Daga v. State of Maharashtra, : (1964)66BOMLR17 and Lakshmandas Chaganlal v. State, : AIR1968Bom400 in support of this contention. In the former case it was observed that :-
'..... The Criminal P.C. gives an accused person certain rights of defense but there is no provision in the Criminal P.C. which gives the accused a right to demand that some one else even if an accomplice be tried alone with him. It is impossible to accept the contention that the accused is entitled to insist that those persons must be tried along with himself'.
11. This view was reiterated by the learned Judges in Lakshmandas Chaganlal Bhatia's case with the added observation that :-
'..... The purpose of this was obviously to prevent his being examined as a witness at the trial'.
12. I am in respectful agreement with the view expressed in both these judgments that an accused person has no right to demand or insist upon another accomplice of his being tried jointly with him. However, I am not persuaded to hold that he cannot even make a request to the Court or bring to the notice of the Court that any person other than him is also involved in the commission of offence and as such he should be summoned to stand trial alone with him. In my opinion, power under section 319 can be exercised by the Court suo motu or on the application of some one including the accused already before him provided, of course, it is satisfied that any person other than the accused has committed any offence for which he can be tried together with the accused. The exercise of the power is, however, discretionary with the Court and there can be no two opinions that the discretion must be exercised judicially having regard to the facts and circumstances of each case. In an appropriate case whether the Court finds that the purpose of such an application is to prevent an accomplice from appearing as a witness in Court and defeat his prosecution, the Court may well decline it. It may even order separate trial of such a person if the circumstances so warrant after examining him as a prosecution witness. However, the position in the instant case is that the petitioner has not been cited even as a witness by the prosecution. So it cannot be said that the application was actuated by an ulterior object.
13. To sum up, thereforee, I find no merit in this petition. It is accordingly dismissed.
14. Petition dismissed.