GIRISH SHARMA & ORS.versusTHE STATE OF CHHATTISGARH & ORS.

                           [2017] 7 S.C.R. 582



A                       GIRISH SHARMA & ORS.

                                    v.
               THE STATE OF CHHATTISGARH & ORS.

                  (Crimina!Appeal Nos. 939-940 of2017)
B
                            AUGUST 23,2017

     [ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.)

          Code of Criminal Procedure, 1973 - ss.161, 164, 306 -
C Allegation of corruption - Charge sheet against persons including
  senior officers of State undertaking - During investigation,
  statements of appellants were recorded under s.161 and 164 -
  Appellants were not arrayed as accused but were cited as witness
  in the charge sheet -After court took cognizance against the accused
  named in the chargesheet, some of the accused made applications
D ulss.1931319 to summon these three persons as accused- Trial court
  rejected the application, however, High Court summoned appellants
  as accused - High. Court found the version of the appellants in
  their statements ulss.161 and 164 self incriminating - Held: In the
  instant case, decision of the High Court was not arrived at by
E weighing the interest ofjustice in having the appellants as accused
  instead of their utility as witnesses - The decision was based on the
  sole consideration of materia{,against them - It was erroneously
  assumed that without following the procedure of s.306, an
  accomplice could not be cited as a witness - Further question,
  whether rejecting the proposal of prosecution to cite the appellants
F as witnesses would jeopardise prosecution case against more serious
  accused was not gone into - Thus matter needs fresh consideration
  on this touchstone - Matter remanded to High Court for fresh
  consideration - While considering whether these three persons be
  summoned as accused or not, the High Court shall not take into
G account the statements made by them either under s.161 or s.164 as
  proposed witnesses.
          Chandran @ Manichan @ Maniyan v. State of Kera/a
          (2011) 5 SCC 161 : [2011) 8 SCR 273 - referred to.

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                                   582
              GIRISH SHARMA & ORS. v. THE STATE OF                           583
                      CHHATTISGARH & ORS.

                            Case Law Reference                               A
            (2011} 8 SCR 273        referred to             Para4

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    Nos.939-940 of2017.
                                                                             B
          From the Judgment and Order dated 03.03.2017 of the High Court
    in Criminal Revision Petition in Revision Petition No. 403 of 2016 and
    484of2016
                                    WITH
          Cr!. A. No. 941-942 of2017.                                        c
          SLP(Crl.) No. 5363 of2017.
          T. P. (Cr!.) No. 2~~ of2017.

           Tushar Mehta, ASG, C.D. Singh, AAG, Mahesh Jethmalani,
     Sidharth Luthra, Sanjay Hegde, K.V. Vishwanathan, Ramesh P. Bhatt,      D
     Sr. Advs. Pal!av Mongia, Ravi Sharma, Abhinav Goyah Ardhendumauli
   . Kumar Prasad, Panshul Chandra, Ms. Taruna Ardhendumauli Prasad,
     Namit Saxena, Nirmal Kumar Ambashtha, Abhay Kumar, Amit Kr. Singh,
     Saurabh Mishra, Pukhrambam Ramesh Kumar, Uday Manaktala,
     Peeyush Bhatia, Ms. Pooja Dhar, Dhananjay Ray, Kailash Pandey,
     Ranjeet Singh, Gaichangpou Gangmei, Ms. Sakshi Kakkar, Gaurav           E
   . Shukla, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha, Avi Singh,
     Pahlad Singh Sharma, Ms. Pallavi Sharma, Advs. for the appearing
     parties.
         · The following Order of the Court was delivered
                                                                             .F
                                   ORDER
           Cd.Appeal No(s).939-940 of2017
           1. On J2•h February, 2015, FIR No.9/2015 was registered by the
    Anti-Corruption Bureau and Economic Offences Wing under the
    provisions of Indian Penal Code and Prevention ofCorruptionAct, 1988. G
    The allegation was that huge amount was recovered from possession of
    accused which was as a result of corruption. The FIR was against 27
- - persons but after investigation chargesheet was filed against 16 persons.
    The persons against whom the chargesheet was filed. included senior
    officers of the Chhattisgarh State Civil Supplies Corporation.
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    584            SUPREME COURT REPORTS                           [2017] 7 S.C.R.


    A           2. During investigation, statements of three of the accused
          mentioned in the FIR, namely, Girish Sharma, Arvind Singh Dhruv and
          Jeet Ram Yadav, who are appellants before us, were recorded under
          Sections 161 and 164 Cr.P.C. They were not arrayed as accused but
          were cited as witnesses in the chargesheet. After the court took
          cognizance against the accused named in the chargesheet, some of the
    B
          accused made applications under Section 193/319 Cr.P.C. to summon
          the above three persons, Girish Sharma, Arvind Singh Dhruv and Jeet
          Ram Yadav as accused.
                  3. The trial court rejected the said applications but the matter was
          carried in revision before the High Court and the High Court allowed the
    c     summoning. The reason given by the High_ Court in the order of
          summoning is that procedure under Section 306 Cr.P.C. was not followed
          which was the only procedure available under the Criminal Procedure
          Code to make an accused a witness, after grant of pardon with Court's
          permission. The High Court relied upon the version given by the said
    D     appellants in their statements under Sections 161 and 164 Cr.P.C. annexed
          to the chargesheet stating that some amount was found in their possession.
                  4. In these appeals we have heard Mr. Tushar Mehta, learned
          Additional Solicitor General appearing for Anti-Corruption Bureau and
          Mr. Mahesh Jethmalani, learned senior counsel appearing for appellants,
     E    Girish Sharma, Arvind Singh Dhruv and Jeet Ram Yadav, who submitted
          that Section 319 Cr.P.C. was not applicable in the present case. They
          submitted that the trial court having declined to take cognizance against
          the appellants, there was no justification for the High Court to have
          taken cognizance against the said three persons. It was submitted that
          it was the wisdom of the investigator/prosecutor to avail of the evidence
     F    of some of the suspects having regard to the larger purpose of securing
          conviction of accused against whom there were more serious charges
          and for this purpose recourse to Section 306 Cr.P.C. was not the only
          option available. It was also submitted that having regard to the facts of
          the present case, there was a bona fide decision taken by the prosecution
     G    in filing chargesheet only against 16 accused and not against the said
          three appellants who were proposed to be cited as witnesses as per the
•         chargesheet. Self incriminating statements of the said appellants could
          not be acted .upon against them as the said statements were made as
          proposed witnesses. It was further submitted that the said three appellants
          could be separately and subsequently prosecuted in the absence of any
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           GIRISH SHARMA & ORS. v. THE STATE OF                                585
                   CHHATTISGARH & ORS.

 immunity granted to them in terms of Section 306 Cr.P.C. In these A
 circumstances, cognizance could not be taken against them merely on
 account of their being incriminating material without weighing the
 advantage of having them as witnesses to prove charges against the
 accused named in the charge sheet which were more serious. Application
 on behalf of the said accused was intended to scuttle the prosecution B
 case against them which has not been appreciated by the High Court. It
 was submitted that procedure under Section 306 to seek pardon is not
 the only course available to rely on the evidence of an accomplice by
 citing him as witness instead of arraying him as accused. Reliance has
 been placed on Chandran @ Manichan @ Maniyan versus State of
 Kerala 1 •                                                             C
         5. Mr. K.V. Vishwanathan, learned senior counsel appearing for
  respondent no.3, Kaushal Kishsore Yadu, one of the original applicants
. at whose instance summoning was allowed, fairly submitted that Section
  319 Cr.P.C. may not be applicable at this stage. He, however, submitted
  that the decision of the prosecutor not to array a person, against whom      D
  incriminating material existed, as accused in the chargesheet and to cite
  him as a witness, could not be a final decision and is subject to ultimate
  decision of the court. Cognizance could be taken by the Court.
        6. The submission made on behalf of the appellants that the
 prosecution was entitled to cite the three original accused as witnesses,     E
 in the given fact situation, having regard to larger interest of justice to
 strengthen the prosecution case against more serious accused cannot
 be held to be without substance. This could be done even without recourse
 to Section 306 Cr.P.C. It is certainly open to the Court to finally decide
 whether cognizance ought to be taken or not after balancing all the
 relevant considerations. The decision of the prosecutor to cite them as       F
 witnesses does not bind the Court and such decision can be interfered
 with if interest of justice so requires.
       7. In the present case, decision of the High Court has not been
 arrived at by weighing the interest of justice in having the appellants as
 accused instead of their utility as witnesses. The decision is based on       G
 the sole consideration of there being material against them. It was
 erroneously assumed that without following the procedure of Section
 306 Cr.P.C., an accomplice could not be cited as a witness. Further

 (2011) s sec 161
 1
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586             SUPREME COURT REPORTS                              [2017] 7 S.C.R.


A     question, whether rejecting the proposal of prosecution to cite the
      appellants as witnesses will jeopardise prosecution case against more
      serious accused, has not been gone into. Thus, the matter needs fresh
      consideration on this touchstone.
             8. Accordingly we set aside the impugned order and remand the
B     matter to the High Court for dealing with the matter afresh in accordance
      with law. While considering whether the aforesaid three persons be
      summoned as accused or not, the High Court shall not take into account
      the statements made by them either under Sections 161 or 164 Cr.P.C.
      as proposed witnesses.
             9. It has been brought to our notice that the charge has already
 c    been framed and four witnesses have been examined. The High Court
      will take this factor also into consideration whether at this stage the
      order declining taking cognizance by the trial ought to be interfered with
      by the High Court.
             10. The parties are directed to appear before the High Court for
 D    further proceedings on Monday, the 41h September, 2017. ·
             11. The High Court may deal with the matter expeditiously and as
      far as possible within two weeks so that the trial can proceed, having
      regard to the fact that the case is at the evidence stage and all the 16
      accused against whom chargesheet was filed, are in custody since more
 E    than two years. Subject to the decision of the High Court, the trial may
      be concluded expeditiously.
             The papers may be placed before the Chief Justice of the High
      Court ofChhattisgarh for assigning the matter to an appropriate Bench.
             Criminal Appeal No(s).941-942of2017 :
 F          In view oforderpassed in Criminal Appeal No(s).939-940 of2017,
      these appeals are also disposed of in the same terms.
            SLPCCrl.)No.5563 of2017:
            The special leave petition is dismissed as withdrawn.
            T.P.(Crl.)No.241 of2017:
 G          We do not find any merit in this transfer petition which is hereby
      dismissed.

      Devika Gujral             Cr!. Appeal Nos.939-940 of 2017 remanded to High Court.
                                                           Connected matters disposed of.