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Girish Sharma & Ors. (S) v. The State Of Chhattisgarh & Ors. (S)
Factual and Procedural Background
On 12 February 2015, FIR No. 9/2015 was lodged by the Anti-Corruption Bureau and Economic Offences Wing alleging recovery of large sums of money obtained through corruption, invoking provisions of the Indian Penal Code and the Prevention of Corruption Act, 1988. Although the FIR named 27 individuals, the police ultimately filed a charge-sheet against 16, including senior officials of the Chhattisgarh State Civil Supplies Corporation.
During investigation, statements of three persons originally cited in the FIR—Girish Sharma, Arvind Singh Dhruv and Jeet Ram Yadav—were recorded under Sections 161 and 164 of the Code of Criminal Procedure (Cr.P.C.). Instead of charging them, the prosecution chose to cite them as witnesses in the charge-sheet.
After the trial court took cognizance against the 16 charge-sheeted accused, some of those accused moved applications under Sections 193/319 Cr.P.C. seeking to summon the above three witnesses as additional accused. The trial court rejected the request, but the High Court, in revision, allowed it, reasoning that the prosecution had bypassed the mandatory procedure under Section 306 Cr.P.C. for tendering pardon to accomplices.
The three aggrieved witnesses filed the present appeals before the Supreme Court challenging the High Court’s summoning order.
Legal Issues Presented
- Whether the High Court was justified in invoking Section 319 Cr.P.C. to summon Girish Sharma, Arvind Singh Dhruv and Jeet Ram Yadav as accused after the trial court had declined to do so.
- Whether, in the circumstances, the prosecution’s choice to cite suspected accomplices as prosecution witnesses—without invoking the pardon procedure under Section 306 Cr.P.C.—is permissible and binding on the court.
- Whether self-incriminating statements recorded under Sections 161 or 164 Cr.P.C. from proposed witnesses can be relied upon for summoning them as accused at the present stage of trial.
Arguments of the Parties
Appellants’ Arguments (Girish Sharma, Arvind Singh Dhruv, Jeet Ram Yadav & ACB)
- Section 319 Cr.P.C. is inapplicable because the trial court had already exercised its discretion and declined cognizance against the appellants.
- The investigator’s decision to use certain suspects as witnesses instead of accused is a legitimate prosecutorial strategy aimed at securing convictions against persons facing graver charges; Section 306 Cr.P.C. is not the sole mechanism for utilizing accomplice testimony.
- Self-incriminating statements made while the appellants were proposed witnesses cannot automatically be used to summon them as accused.
- The applications filed by some charge-sheeted accused were an attempt to derail the prosecution case.
- Reliance placed on Chandran @ Manichan @ Maniyan v. State of Kerala (2011) 5 SCC 161 to support the view that citing an accomplice as witness without invoking Section 306 Cr.P.C. is permissible.
Respondent No. 3’s Arguments (Kaushal Kishore Yadu)
- Conceded that Section 319 Cr.P.C. may not strictly apply at this stage.
- Maintained that the prosecutor’s decision not to array an individual as accused is not final; the court retains authority to take cognizance if material warrants.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chandran @ Manichan @ Maniyan v. State of Kerala, (2011) 5 SCC 161 | An accomplice can be examined as a prosecution witness without necessarily invoking Section 306 Cr.P.C. | Relied upon by the appellants to argue that citing suspects as witnesses is a valid prosecutorial option and that Section 306 Cr.P.C. is not the exclusive route. |
Court's Reasoning and Analysis
The Supreme Court accepted that the prosecution’s strategy to examine the three appellants as witnesses, rather than arraigning them as accused, could legitimately serve “the larger interest of justice” by strengthening the case against more serious offenders. The Court held that:
- The High Court erred in assuming that an accomplice cannot be cited as a witness unless the Section 306 Cr.P.C. pardon procedure is followed.
- The High Court did not balance the competing considerations—namely, the evidentiary value of the appellants as witnesses versus the need to prosecute them—before invoking Section 319 Cr.P.C.
- Reliance solely on the appellants’ Section 161/164 Cr.P.C. statements to summon them was improper; such statements should not be taken into account when deciding whether to convert witnesses into accused.
- The question whether summoning the appellants would jeopardise the prosecution of the 16 charge-sheeted accused, particularly given that charges have already been framed and four witnesses examined, was not addressed by the High Court.
Consequently, the Supreme Court found the High Court’s order legally unsustainable and required a fresh evaluation guided by the above parameters.
Holding and Implications
Holding: The Supreme Court set aside the High Court’s order summoning Girish Sharma, Arvind Singh Dhruv and Jeet Ram Yadav as accused, and remanded the matter to the High Court for reconsideration in accordance with law, expressly directing that the High Court shall not rely on the appellants’ Section 161/164 statements.
Implications: The immediate effect is that the summoning order stands nullified pending fresh determination, allowing the ongoing trial against the 16 existing accused to proceed without the appellants’ arraignment unless the High Court, upon re-examination, holds otherwise. The decision underscores that citing a suspect as witness without invoking Section 306 Cr.P.C. can be legitimate, and that courts must balance prosecutorial strategy with the interests of justice before using Section 319 Cr.P.C. No new binding precedent was explicitly created, but the judgment offers guidance on the interplay between Sections 306 and 319 Cr.P.C.
1. On 12 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 of Corruption Act, 1988. 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.
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 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 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 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, 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 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 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 immunity granted to them in terms of Section 306 Cr.P.C In these 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 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 v. State of Kerala (2011) 5 SCC 161.
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 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, 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 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 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 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 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 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 further proceedings on Monday, the 4 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 than two years. Subject to the decision of the High Court, the trial may be concluded expeditiously.
12. The papers may be placed before the Chief Justice of the High Court of Chhattisgarh for assigning the matter to an appropriate Bench.
Criminal Appeal NO(s).941-942 of 2017 :
13. In view of order passed in Criminal Appeal NO(s).939-940 of 2017, these appeals are also disposed of in the same terms.
SLP(Crl.) No. 5563 of 2017 :
14. The special leave petition is dismissed as withdrawn.
T.P(Crl.) No. 241 of 2017 :
15. We do not find any merit in this transfer petition which is hereby dismissed.
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