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2001 DIGILAW 1342 (RAJ)

Atar Khan v. State of Rajasthan

2001-08-24

ASHOK PARIHAR

body2001
Honble PARIHAR, J.–A first information report came to be lodged at Police Station-Kishangarhbas, District-Alwar on 4.6.2000 at 10.05 A.M. by one Hulla for an incident alleged to have taken place on the same date at 6.00 A.M. It was alleged in the report that Deena, elder brother of the complainant, was assaulted by the persons named in the FIR resulting in death of the injured Deena on way to the hospital. (2). Though, number of persons were named in the FIR, however, the investigating agency, after investigation, submitted charge- sheet against only two persons namely; Juber Khan and Fajju and negative report was filed in respect of other persons named in the FIR. (3). After the case been committed to the Court of Additional Sessions Judge No. 1, Kishangarhbas, charges were framed against the two persons namely; Juber Khan and Fajju. After commencement of the trial, two eye witnesses were examined namely; PW-1 Hulla and PW-2 Sabuddin, After recording the evidence of above two witnesses, an application under Section 319 Cr.P.C. came to be filled by the complainant before the trial court. The trial court, after considering the entire material on record and hearing both the sides, came to the conclusion that, prima facie, a case under Sections 302, 324 and 323/34 IPC is made out against the accused petitioners also. Thus, vide order dated 29.3.2001, the trial court issued process against the accused petitioners and ordered for arrest of the accused petitioners. The order dated 29.3.2001 is under challenge in the present petition under Section 482 Cr.P.C. (4). This court, after hearing learned counsel for the accused- petitioners, called for the record of the case from the trial court vide order dated 18.5.2001 and also stayed operation of the impugned order dated 29.3.2001 passed by the trial court. (5). Mr. Bajwa, learned Senior Advocate appearing on behalf of the accused-petitioners, has submitted that after thorough investigation, the investigating agency has chosen to file challan against only two persons namely; Juber Khan and Fajju and a negative report in respect of accused petitioners. The complainant never submitted any protest petition against the negative report submitted against the accused petitioners before a competent court. It was only during the trial that an application under Section 319 Cr.P.C. was filed by the complainant. (6). While assailing the impugned order passed by the trial court, Mr. The complainant never submitted any protest petition against the negative report submitted against the accused petitioners before a competent court. It was only during the trial that an application under Section 319 Cr.P.C. was filed by the complainant. (6). While assailing the impugned order passed by the trial court, Mr. Bajwa very vehemently submitted that in such matters process should not have been issued by the trial court in a casual manner, when there was nothing on record to show the involvement of the accused-petitioners, moreso, when neither any protest petition was filed by the complainant against the negative report submitted by the investigating agency nor even remedy of filing criminal complaint was availed of by the complainant. (7). Mr. Bajwa relied on the judgments of the Supreme Court in the case of ``Municipal Corporation of Delhi vs. Ram Kishan Rohtagi & Ors. (1), ``M/s Pepsi Foods Ltd and another vs. Special Judicial Magistrate and Ors. (2), and ``Michael Micado vs. CBI (3). Mr. Bajwa has also submitted that in case this court maintains the impugned order passed by the trial court, then the non-bailable warrants issued against the accused petitioners may be converted into bailable warrants. (8). Mr. Jagdeep Dhankar, learned Sr. Advocate appearing on behalf of the complainant, on the other hand, has submitted that under Section 319 Cr.P.C., the court has enough powers to issue process even during the course of the trial. He has further submitted that it was only after considering the first information report, the statements recorded under Section 161 Cr.P.C. and further statements recorded by the trial court, that the impugned order has been passed by the trial court. Mr. Dhankar has relied upon the judgments of the Supreme Court in the case of ``Rakesh and another vs. State of Haryana (4), and ``Salauddin Abdulsamad Shaikh vs. State of Maharashtra (5). (9). After having considered the submissions made by learned counsel for the parties, I have carefully gone through the material on record as also the judgments cited at the Bar. (10). (9). After having considered the submissions made by learned counsel for the parties, I have carefully gone through the material on record as also the judgments cited at the Bar. (10). The Supreme Court in the case of Joginder Singh vs. State of Punjab (6), has observed as under:- ``A plain reading of Section 319(1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused. (11). In the subsequent judgment in case of Municipal Corporation of Delhi (supra), while referring to the above judgment in case of Joginder Singh (supra), the Supreme Court observed thus:- ``......, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence, the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. (12). In case of M/s Pepsi Foods Ltd (supra), the Supreme Court again observed that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof. (13). The Supreme Court again in case of Rakesh and Anr. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof. (13). The Supreme Court again in case of Rakesh and Anr. (supra) while considering earlier judgments on the powers of the Court under Section 319 Cr.P.C. held that once the Sessions Court is seized of the matter as a result of the committal order against some accused, the power under Section 319(1) Cr.P.C. can come into play and Court can add any person, not an accused before it, as an accused and direct him to be tried along with other accused. It has further been observed that the powers under Section 319 Cr.P.C. has to be sparingly used. (14). In view of legal position as emerges from the judgments cited above, each case has to be seen on its own facts and circumstances and also nature of allegations made in the complaint. In the present case, all the accused petitioners have been named in the FIR, their names also appear in the statements of two eye witnesses recorded under Section 161 Cr.P.C. as well as recorded by the trial court. After having carefully gone through the FIR, the statements recorded under Section 161 Cr.P.C. and also the statements recorded by the trial court of the two eye witnesses, since the trial court has considered not only the facts and circumstances of the case and material available on record but also the judgments cited by learned counsel for the parties, I find no reason to held the impugned order to be a non-speaking order or an order passed without application of mind. Since the trial court had the powers to issue process against the accused petitioners under Section 319 Cr.P.C., in the facts and circumstances of the present case, I find no ground for any interference of this court under Section 482 Cr.P.C. (15). This court, while calling the record of the trial court vide order dated 18.5.2001, has also stayed the operation of the order dated 29.3.2001 passed by the trial court. The office is directed to send back the record immediately to the trial court. The trial court is directed to proceed with the trial in accordance with law. This court, while calling the record of the trial court vide order dated 18.5.2001, has also stayed the operation of the order dated 29.3.2001 passed by the trial court. The office is directed to send back the record immediately to the trial court. The trial court is directed to proceed with the trial in accordance with law. The matter be listed before the trial court for further proceedings on 27.9.2001. (16). After filing of the present petition under Section 482 Cr.P.C., the petitioners had also filed a bail application under Section 438 Cr.P.C. before this court on 23.4.2001, bearing ``Atar Khan and ors vs. State of Rajasthan (7). The above bail application was also listed along with the present petition. (17). The Supreme Court, while dealing with the provisions of 438 Cr.P.C., in case of Salauddin Shaikh (supra), observed that anticipatory bail order should be of a limited duration only and, ordinarily, at the expiry of the duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it. The court further observed that, ordinarily, court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail. In the present case, since the warrants of arrest have also been issued against the accused petitioners, in the interest of justice, I deem it proper to direct the accused petitioners to surrender before the trial court on the next date i.e. 27.9.2001 and move a proper application for bail, which may be decided by the court concerned in accordance with law. Till next date fixed by this court, the arrest warrants issued against the accused petitioners may not be executed. (18). The present petition stands disposed of accordingly.