1. The above criminal miscellaneous petition has been preferred against the order of the Special Judge (Chief Judicial Magistrate), Chingleput, refusing to transpose a prosecution witness, Srinivasan, as an accused and to face trial along with the other 4 accused charge-sheeted in the case. The brief facts, which require to be noticed in connection with the petition, are as stated below:
2. An Assistant Engineer and a Junior Engineer attached to the Ennore Thermal Station, who are accused 1 and 2 in the case, and the petitioners herein, who are accused 3 and 4, are alleged to have entered into a criminal conspiracy to commit various offences, such as, cheating, forgery, using as genuine the forged document and acts of corruption punishable under the Prevention of Corruption Act, The gravamen of the charge is that the petitioners who were running a concern dealing in electrical goods, joined accused 1 and 2 and prepared bogus tenders, so that eventually the tender of the petitioners, which would always be the lowest, would be accepted and orders placed with them for the supply of electrical goods to the Thermal Scheme at Ennore. In the trial of the case, one Srinivasan, who was the typistcum-clerk in the concern of the petitioners, was examined as the 12th witness for the prosecution. He gave evidence stating that on the directions of the first petitioner, he prepared tenders in the name of the different concerns and he signed some of those tenders to make it appear that the tenders have been signed by the proprietors or Managers of those respective concerns, Numerous instances were given by P.W, 12 about the preparation of false and bogus tenders. After his evidence had been substantially recorded, the petitioners moved the Special Judge for arraying Srinivasan also as an accused in the case or in the alternative not to examine him unless pardon had been granted to him. The request was made on the basis that on his own evidence Srinivasan had shown himself to be a forgerer and thus an accomplice to the crime. The learned Magistrate did not accept the contention of the Petitioners and dismissed the petition. Hence, the petitioners have come to this Court to canvass the correctness of the order of the Special Judge.
3. Section 351 of the Criminal Procedure Code, 1898, reads as follows:
351 (1) Any person attending a Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.
(2) When the detention takes place in the course of an inquiry under Chapter XVII or after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witness re-heard.
Prom a reading of this Section it is clear that after a Court has taken cognisance of an offence, it has power in it to detain any person attending the Court either as a witness or as an observer and have him also arrayed as an accused in a case already taken up on file. Where recourse is had in respect of one or more persons under Sub-clause (1) of Section 351, Sub-clause (2) lays down that when the enquiry or trial had already begun, the proceedings in respect of the newly arrayed accused should be commenced afresh and the witnesses re-heard. It is on the basis of Section 351(1), the petitioners contend that the witness, Srinivasan should also be made an accused in the case and the trial proceeded de novo.
4. Mr. C.K. Venkatanarasimhan, the learned Counsel for the petitioner invited my attention to several portions of the evidence of Srinivasan where he has admitted that he had signed several tenders in the names of other persons and those tenders were eventually sent to the Ennore Thermal Scheme Authorities for consideration along with the Tenders submitted by the petitioners. The learned Counsel, therefore, says that on his own admission, the witness stands self-condemned and, therefore, the Special Judge should have unhesitatingly treated him as a conspirator and an offender and ranged him along with the other accused in exercise of his powers under Section 351(1) of the Criminal Procedure Code. Appealing as the argument sounds, I am afraid the contention of the petitioners cannot be accepted. Section 351 has been provided in the Code with a design and purpose and for effective administration of justice. The framers of the Code did not want the Court to feel helpless when it found that the prosecution had laid charge-sheet only against some persons concerned in an offence and had left out some others either intentionally or unintentionally. To deal with such a situation, the Legislature has given powers to the Court under Section 351 to set right matters and bring to trial all persons who appeared to have a hand in the commission of the offence. Therefore, the question of exercising its powers under Section 351 of the Code is purely on the Court and in order to exercise the powers, It is the Court which will have to objectively satisfy itself that the evidence or the circumstances in a case warrant a person not brought up for trial also being detained and made to face the trial. It is In that perspective the contention of the petitioners in the instant case has to be considered. No doubt, Srinivasan has admitted in several places in his evidence that he had signed bogus tenders in the names of several persons. But on that score alone, it cannot be said that he must also be treated on the same footing as the other accused in the case. Srinivasan's evidence read as a whole makes it appear that he was not a co-conspirator with the other accused but, on the other hand, he was only tool in the hands of the first petitioner. As such, he cannot be said to have had any part in the commission of offences under Sections 120-B, 420 and 471, Indian Penal Code. At least the charge that can be levelled against him is that he committed an offence of forgery punishable under Section 465, Indian Penal Code. But even for charge of forgery it must be proved that the false document was made with a particular animug i.e., to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property etc., etc. Unless, therefore, the evidence discloses that Srinivasan had signed the several bogus tenders with dishonest intention or for a fraudulent purpose and thereby had necessary rnens rea, it is not possible to hold that he had committed even the offence of forgery. Whatever it be, it is for the Court to feel satisfied about the circumstances of the case and conclude that the interests of justice require action being taken against a witness or any other person under Section 351, Criminal procedure Code. Merely because the petitioners contend that the evidence given by Srinivasan stamps him unmistakably as a co-accused, the Court' is not bound to accede to their request and take action under Section 351, Criminal Procedure Code.
5. There is also another aspect which has to be borne in mind. The object of Section 351 is to see that all persons concerned in an offence of which cognizance had been taken by the Judge or Magistrate are effectively dealt with and no one is allowed to escape the long arm of law merely because the prosecution had failed to array him as an accused. While doing so, the Court must also see that in its anxiety to effectively administer justice, it does not indirectly contribute to the obliteration of evidence against the main offenders in the case. In the instant case, if Srinivasan is also to be arrayed as an accused, then it' is quite likely that the prosecution may not have any other evidence against the petitioners and the other two accused as regards the preparation of false tenders and the dishonest treatment of those tenders as genuine by accused 1 and 2, In P. Sirajuddin v. The State of Madras : 1971CriLJ523 if was observed by the Supreme Court as follows:
In our view, if it be a fact that it was the appellant who was the head of the department actively responsible for directing the commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that unless the subordinates were also joined as co-accused with him the case should not be allowed to proceed.
Therefore, the Court while exercising its powers under Section 351, has a duty to see that in its attempt to bring all offenders to justice, its action does not become a self-defeating one.
6. In support of his contentions Mr. Venkatanarasimhan relied on State v. Lekh Raj Faqir Chand and Raghubans Dubey v. State of Bihar : 1967CriLJ1081 . On a perusal of the two judgments, I find that the ratio laid down therein has no application to the facts of the instant case. The point which arose for consideration in the first case was whether taking of action under Section 351 of the Criminal Procedure Code will mean that a fresh cognizance of the case is taken by the Court as contemplated under Section 190(i)(b) of the Code. The point considered by the second case was whether an accused, who had been discharged on the ground that his name was not sent up for trial can later on be made to face the trial as an accused by the trial Court exercising its powers under Section 351 of the Criminal Procedure Code, Neither of the situations exists here.
7. In the result, I find the order of the learned Magistrate in refusing to transpose P.W. 12 Srinivasa as an accused in this case cannot be assailed as a wrong or incorrect order. The petition will, therefore, stand dismissed. It is, however, open to the petitioners to assail before the trial Judge the weight to be attached to the evidence of P.W. 12 on the ground that it is more that of an accomplice than of an unblemished person.