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2002 DIGILAW 472 (RAJ)

Banni v. State of Rajasthan

2002-02-22

ASHOK PARIHAR

body2002
JUDGMENT 1. - On a FIR being lodged, the police, after investigation, filed chargesheet against five persons namely; Banni a Banne Singh, Jagdish Padam, Hukam and Vijay, Banni @ Banne Singh was charged for the offence under sections 306, 498-A and 201 IPC, whereas, other accused were charged of or an offence under section 201 lPC only. 2. Subsequently, the complainant filed a complaint before the trial court on 17.2.2000 against four petitioners, alleging offence against them under sections 304-B, 306, 120-B and 201 [PC, on the ground that the police, while making the investigation, has not recorded the statements of material witnesses and even the statements recorded by the police, under section 161 Cr.P.C., have not been correctly recorded. 3. On receiving the complaint, the trial court recorded the statement of some of the witnesses produced on behalf of the complainant. Thereafter, the trial court came to the conclusion that, prima facie, a case for the offence under sections 306, 120-B, 498-A and 201 IPC is made out against the petitioners. While taking cognizance against the petitioner Nos. 2, 3 and 4 also, vide order dated 11.7.2000, the trial court issued summons for the petitioners Nos. 2 and 4. The order dated 11.7.2000, passed by the trial court, is under challenge in this revision petition. 4. Mr. S.S. Sunda, learned counsel for the petitioners, while heavily relying on the judgment of the Supreme Court in the case of " Kishore Singh v. State of Bihar" reported in 2001 CrLJ 123 and the judgment of this Court, in the case of " Sukhdas & ors. v. State of Rajasthan" reported in 2001 CrLR (Raj.) 364. , has submitted that the police, after investigation, once having submitted chargesheet against some accused, trial court has no jurisdiction to take cognizance against other accused against whom no charge sheet has been filed. The submission of Mr. Sunda has been that it is only under section 319 CrPC that the Sessions Court has the powers to issue process for other co-accused. 5. Mr. Biri Singh, learned counsel for the complainant, on the other side, while relying on the judgment of the Supreme Court in the case of " Rajinder Prasad v. Bashir & Ors." reported in 2001 (4) Crimes I (SC) and " Raghubans Dubey v. State of Bihar" reported in AIR 1967 SC 1167 . 5. Mr. Biri Singh, learned counsel for the complainant, on the other side, while relying on the judgment of the Supreme Court in the case of " Rajinder Prasad v. Bashir & Ors." reported in 2001 (4) Crimes I (SC) and " Raghubans Dubey v. State of Bihar" reported in AIR 1967 SC 1167 . , has submitted that the Magistrate has the powers to rave cognizance under section 190 CrPC after making preliminary inquiry under section 200 CrPC. 6. After having considered the submissions made by learned counsel for the parties, I have carefully gone through the material on record, the order impugned and also the judgments cited at the Bar. 7. Admittedly, the police, after investigation, filed chargesheet against five persons only. The accused-husband of the deceased was charged for the offence under sections 306, 498-A, and 201 IPC, whereas, other co-accused Vijay, Hukam, Padam and Jagdish were charged for the offence under section 201 IPC only. It was only on a complaint made by the complainant before the trial court, with certain allegations in regard to deficiencies made in the investigation, the trial court recorded the statements of some more witnesses. After considering the statements recorded by the trial court and coming to the conclusion that, prima facie, there is material for proceeding against other co-accused named in the complaint, the trial court took cognizance against the present petitioners vide the impugned order. 8. In my opinion, the trial court has not committed any error or illegality in the present matter so as to call for any interference of this court in this revision petition. The provisions of section 319 CrPC are entirely different and if can be made applicable in different context. In the present case. the trial court has only taken cognizance and, after the petitioners been produced before the trial court, the process of committing the case to the Court of Sessions is yet to be done under section 209 CrPC. 9. The judgments cited by the learned counsel for the parties are distinguishable in the facts and circumstances of the present case. 10. Accordingly, I find no merit in this revision petition and the same is dismissed. 11. While issuing summons by the order impugned in the present revision petition, the trial court has issued warrants of arrest for petitioners Nos. The judgments cited by the learned counsel for the parties are distinguishable in the facts and circumstances of the present case. 10. Accordingly, I find no merit in this revision petition and the same is dismissed. 11. While issuing summons by the order impugned in the present revision petition, the trial court has issued warrants of arrest for petitioners Nos. 2, 3 and 4 and the same could not be executed in view of the interim order passed by this Court. In the interest of justice, I now deem it proper to direct the petitioners Nos. 2, 3 and 4 to surrender before the trial court on 12.3.2002 and also file a proper application for bail, which may be decided by the court concerned in accordance with law. Till then. the arrest warrants issued against the above petitioners Nos. 2, 3 and 4 namely; Smt. Kamla wife of Jagdish, Smt. Jhunthi wife of Prakash and Jagdish son or Prakash respectively may not be executed. Copy of this order to sent to the trial court immediately.Revision dismissed. *******