(Querist) 26 September 2009
This query is : Resolved
Sir, I Shall be glad to have your comment/opinion on the following facts. A special judge – CBI ( ACB) was hearing on the argument on charges against the discharge petition of an accused. There was no pecuniary loss/gain on the date of sanction to any parties. Instead of either discharging/framing of charges, he had added one more person (A company thro its authorized representative) as an accused and given a new date. That company is already under BIFR and not function for a long time. Prosecution had informed that court that the factory is not functioning and no one is available to serve the notice. Incidentally the CMD of the company is one of the four accused and got exemption through HC for non appearance before the spl. Court.
My questions are. 1. Can the judge is correct in including a new accused at the time of framing of charges. I believe that the judge, at the time of framing charge has to see prima-fascia any case is made out against the accused or not, based on the charge sheet made available to him. If he is not correct pl. support me with any case laws. If he is correct also pl. proved the relevant case laws. 2. Can a Company under BIFR (Closed/Locked/No Operation) or its authorized representative be made as an accused. 3. Since the CMD of the company is already an accused and obtained exemption from non appearance from HC, can the Spl. Judge invoke the exemption and ask the CMD to appear Him for any further clarification. 4. There is one directive from HC ( against the petition u/S 482) obtained by one of the accused that the case should be disposed off on the next hearing date. The above development had taken place after the directive from the HC.
Raj Kumar Makkad
(Expert) 26 September 2009
Spl court has no power to induct any new accused at the time of framing the charge. Additional accused can be inducted if it appears to the court at the time of the evidence that someone other left to be shown as an accused in the final report is required in the case then under the provisions of section 319 cr. p.c. this process can be completed but in the given circumstances, HC has directed to dispose off the case on the very next date of hearing, hence spl court has no option to go in depth the charge-sheet and see if ther is any lacunae of non-impleadment of any accused and if convinced, can add and can also call the exempted CMD becs no case can be decided in the absence of an accused.
WHILE THANKING BOTH THE CONTRIBUTERS, I REQUEST THEM TO PROVIDE ANY CITATIONS FROM HC or SC.THIS WILL HELP ME GO FURTHER ON THE SUBJECT.
OVER ONE AND HALF YEARS HAD SINCE BEEN PASSED AFTER THE HC DIRECTIVE. WITHOUT DISPOSING THE CASE HE HAD MADE ONE NEW PERSON AS AN ACCUSED BEFORE FRAMING THE CHARGES. IN THE MEAN TIME THE CASE WAS TRANSFERED TO NEW JUDGE A YEAR BACK DUR TO INCLUSION ON SOME MORE SPL.JUDGES AND NEW JUDGE HAS NOT EVEN SEEN THE FILE EXCEPT BY ADJOURNING THRISE SO FAR.
SHALL BE GLAD TO HAVE YOUR VALUABLE SUGGESTION ON HOW TO PERSUE THE CASE ALONG WITH THE POINT WISE REPLY SEEKED.