1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE/ORIGINAL JURISDICTION

CRIMINAL APPEAL NO(S).  939-940    of 2017

GIRISH SHARMA & ORS.                    …Appellant(s)

VERSUS

THE STATE OF CHHATTISGARH & ORS.                   …Respondent(s)

WITH

Criminal Appeal No(s). 941-942/2017

SLP(Crl) No. 5363/2017  

T.P.(Crl.) No. 241/2017  

O R D E R

Crl.Appeal No(s).939-940 of 2017

1. On  12th 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

2

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,

3

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

4

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 Kerala1 .

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.

1  (2011) 5 SCC 161

5

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 4th September, 2017.  

6

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.

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 :

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.5363 of 2017 :

The special leave petition is dismissed as withdrawn.

T.P.(Crl.)No.241 of 2017 :  

We do not find any merit in this transfer petition which is hereby dismissed.

…………...........................J.                 (ADARSH KUMAR GOEL)

…………...........................J.         (UDAY UMESH LALIT)

New Delhi, August 23, 2017.