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2001 DIGILAW 1595 (RAJ)

Harlal v. State of Rajasthan

2001-10-01

H.R.PANWAR

body2001
JUDGMENT 1. - This Criminal misc. petition Is directed against the order dated 7.9.2001 passed by Additional Sessions Judge (Fast Track), Jodhpur, in Sessions Case No. 86/2001, State v. Pepa Ram , whereby an application filed under section 319 Cr.P.C. by the State was dismissed. 2. On an F.I.R. lodged by the petitioner at Police Station, Osian, police investigated Crime Report No. 123 dated 13.8.2000 and filed a final report (charge-sheet) for offences under section 302 I.P.C. and under section 9/51 Wild Life Protection Act and under section 3/25 (i) (b) (a) of Arms Act against the accused Pepa Ram in the Court of Civil Judge (Junior Division) and Judicial Magistrate, First Class, Osian, which was committed to the Court of Sessions Judge, Jodhpur for trial. The learned Sessions Judge, Jodhpur, transferred the case to Additional Sessions Judge (Fast Track), Jodhpur for trial. 3. During the trial of Sessions Case No. 86/2001, the trial court recorded statements of P.W. 1 Harlal, P.W. 2 Bharmal Ram & P.W. 3 Bagdu Ram. It is a State case and the State is prosecuting the case through its Additional Public Prosecutor. The petitioner i.e. the complainant, who lodged the F.I.R., has challenged the order impugned dated 7.9.2001 passed by the learned trial court dismissing the application filed by the State under section 319 Cr.P.C. 4. I have heard the learned counsel for the petitioner. Perused the order Impugned and the relevant record filed by the petitioner and the relevant material. 5. It is contended by the learned counsel for the petitioner that the trial court was in error in not impleading Mool Singh Bhaga Ram, Chautha Ram, Mishri Lai and Dungar Ram as accused. 6. The police after investigation filed the charge sheet against the accused Pepa Ram. The investigation conducted by the police and the statements of the witnesses recorded by the police under section 161 Cr.P.C., reveal that offences under the aforesaid sections were prima facie made out against the accused Pepa Ram, who has been challenged and put to trial by the learned trial court. There was no material before the police to connect any person other than the accused Pepa Ram, who is presently facing the trial of the case. There was no material before the police to connect any person other than the accused Pepa Ram, who is presently facing the trial of the case. It is only for the first time that the aforesaid witnesses namely, P.W. 1 Harlal, P.W. 2 Bharrnal Ram and P.W. 3 Bagdu Ram have tried to implicate the persons other than the accused challaned by the police. The learned trial Judge has considered the entire material on record and reached to the conclusion that prima facie no offence is made out against the person sought to be arraigned as accused by the petitioner. 7. The petitioner, who is said to be an eye witness of the occurrence, lodged the F.I.R. soon after the occurrence at Police Station, Osian, district Jodhpur. The version given in the F.I.R. is reproduced here, which is as under " rgjhjh fjiksVZ Jh gjyky S/o Qwlkjke tkfr fo'ukbZ mez 45 lky] is'kk&[ksrh] fuoklh&b'k[kkyksa dh <+k.kh psjkbZ us ?kVukLFky 'kksHkkorksa dh <+k.kh ij is'k dh o ethn nfj;kQr ij crk;k fd ?kVuk ds le; f'kdkjh isikjke fgj.k dks xksyh ekjdj vius dU/ks ij ysdj Hkkxk vkSj mlds ihNs xaxkjke] eSa] cxMwjke o Hkkjey jke Hkkx lcls vkxs xaxkjke f'kdkjh isijke dk ihNk dj jgk Fkk muds ihNs eSa rFkk esjs ihNs cxMwjke o lcls ihNs Hkkjey jke Hkkx jgs FksA iqyflag dh <+k.kh ds ikl f'kdkjh us fgj.k dks vius dU/ks ls uhps j[k fn;k vkSj dgk fd esjs ikl esa vkvksxs rks eSa vki ds mij xksyh ekj nwWaxkA rks xaxkjke us dgk fd eq>s rks fgj.k dks cpkuk gSA eq>s rks ekjuk gh gSA rks f'kdkjh isikjke us djhc 6&7 QqV njh ls xaxkjke ds xksyh ekj nh ftlls og ekSds ij gh [kRe gks x;kA rks eSaus o esjs HkkbZ;ksa us ogka ls Hkkxdj viuh tku cpkbZ o xkWao ds eqf[k;ku dks gknls dh lwpuk nhA " 8. From the version given in. the F.I.R. by the petitioner and the statements of Bharmal Ram and Bagdu Ram recorded by the police We, 161 Cr.PC., no role has been assigned to the persons sought to be arraigned as accused at the stage of trial of the case. From the entire material, it is revealed that it was the accused Pepa Ram, who is said to have committed the offence and none else. From the entire material, it is revealed that it was the accused Pepa Ram, who is said to have committed the offence and none else. It appears that the petitioner and two other persons have tried to implicate some more persons during the course of trial, which appears to be over implication. 9. The State has not challenged the order impugned, which was passed by the trial court on the application moved by the State. Section 319 Cr.PC. confers power to proceed against other persons appearing to be guilty of offence Section 319 Cr.PC. reads as under : "319. Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard. (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry of trial was commenced." 10. For invoking this section, the condition precedent is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who Is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arrainged. The power conferred on the court is discretionary as could be gathered from the words "the Court may proceed against such person" and the discretionary power so conferred on the Court should be exercised only to achieve the criminal justice. The power conferred on the court is discretionary as could be gathered from the words "the Court may proceed against such person" and the discretionary power so conferred on the Court should be exercised only to achieve the criminal justice. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., (1983) 1 SCC 1 , the Hon'ble Supreme Court observed as under : "But we would hasten to add that this is really an extra-ordinary 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." 11. In Michael Machado & Anr. v. Central Bureau of Investigation & A1ru, 2000 Crl. R. (SC) 265 , the Hon'ble Supreme court held as under : "The basic requirements of invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is no arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It Is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused." 12. The Hon'ble Supreme Court held that the power conferred on the Court under section 319 Cr.PC. is only a discretion as could be discerned for the words "the Court may proceed against such person." The discretionary power so conferred should be exercised only to achieve criminal justice. It was further held that unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought.accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action. (Emphasis supplied). It was further held that unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought.accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action. (Emphasis supplied). Thus, it is clear that before Court exercises the power conferred under section 319 Cr.P.C., the Court is required to satisfy that there is a reasonable prospect of the case as against the person sought to be arraigned as accused ending in conviction of the offence concerned. In the instant case, the learned trial court has elaborately considered the entire material placed before it including the version given by the petitioner in the F.I.R. and - reached to the conclusion that it is not a fit case where the discretion conferred under section 3.19 Cr.PC. should be exercised to achieve criminal justice. In my considered opinion, the view taken by the learned trial court cannot be said to be perverse or erroneous. The learned trial court has rightly refused to exercise the discretion vested in it. More so, it is a State case and the State is not aggrieved by the order of the trial court. The trial before a Court of Sessions is to be conducted by a Public Prosecutor. Section 225 Cr.PC. clearly provides that in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. The case is pending before the Additional Sessions Judge as the offence is triable by a court of Session. In Shiv Kumar v. Hukam Chand & Anr., 1999 Cr.L.R. (SC) 689 , the Hon'ble Supreme Court held as under : "From the scheme of the Code of legislative intention is manifestly clear that prosecution in a sessions Court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to be fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor." 13. Their Lordships further held that the only other liberty which the counsel engaged by a private party can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the Court permits him to do so. 14. In Thakur Ram and others v. The State of Bihar, AIR 1966 SC 911 , the Hon'ble Supreme Court held as under: "In a case which has proceeded on a police report a private party has really no locus standi. No doubt, the terms of S. 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not be irrelevant to bear in mind the fact that the Court's jurisdiction was invoked by a private party. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exception, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book." 15. In Harihar Chakravarty v. The State of West Bengal, AIR 1954 SC 266 , the Hon'ble Supreme Court held that revisional jurisdiction of the High Court is not to be lightly exercised when it is invoked by a private complainant. 16. It is settled law that the inherent power of the Court under section 482 Cr.PC. should be very sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of process of court, if such power is not exercised. In State of Bihar v. Rajendra Agrawalla, 1996 SCC (Cri) 628 , the Hon'ble Supreme Court held that the inherent power of the Court under section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. In the instant case, from the order impugned, it cannot be said that it would result in manifest injustice or abuse of process of the court. In my considered opinion, it is not a fit case which needs to be interfered under section 482 Cr.P.C.Consequently, I find no merit in this petition and it is hereby dismissed.Petition dismissed. *******