Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 1825 (RAJ)

Tulcha Ram Alias Tulsiram v. Bhojaram

2004-12-22

H.R.PANWAR

body2004
Judgment H.R. Panwar, J.-By the instant Criminal Revision Petition under Section 397/401 Criminal Procedure Code (for short the Code hereinafter) the petitioner who is complainant has challenged the order dated 15.02.2003 passed by the Additional Sessions Judge (Fast Track), Bikaner (for short the trial Court hereinafter) in Sessions Case No. 194/2001 whereby the trial Court dismissed the application filed by the petitioner under Section 319 of the Code. 2. I have heard learned Counsel for the petitioner as well as the Public Prosecutor and the Counsel appearing for the contesting respondents No. 1 to 6. Perused the order impugned and challan papers as well as the statement of witnesses recorded by the trial Court during the trial of the case. 3. On 31.08.1997, the police registered a criminal report on the basis of Parcha Bayan Exhibit P-1 of the petitioner and investigated the matter. After investigation police filed challan against the respondents No. 1 to 6 for the offences under Sections 148, 307, 323, 324 and Section 326 read with Section 149, IPC. Respondents No. 1 to 6 were put to trial in Sessions Case No. 194/2001. Vide order dated 20.08.2004 the trial Court acquitted accused respondents No. 1 to 6. However, while the trial was going on, petitioner filed an application under Section 319 of the Code on 111.2002. The trial Court rejected the said application vide order impugned dated 15.02.2003 on merits as well as on the ground of delay. The petitioner appeared before the trial Court as prosecution witness No. 1 and made his statement on 12.03.2001. Thereafter, the matter was adjourned to 29.08.2001, 210.2001, 112.2001, 06.02.2002, 13.03.2002, 24.04.2002, 28.05.2002, 09.07.2002, 14.08.2002, 11.09.2002, 21.09.2002, 010.2002, 110.2002 and 110.2002. For all these dates, the prosecution did not seek impleadment of the additional accused sought to be tried alongwith the accused facing trial. However, the complainant filed an application seeking impleadment of additional accused after a lapse of about 2 years form the date of examination of the petitioner himself on the strength that he has named some other persons in the FIR and in his statement before the Court. According to the petitioner, in addition to respondents No. 1 to 6, who were challaned by the police, he also sought impleadment of Bhanwarlal, Chokharam, Rugharam, Mohanlal, Ramnarayan and Sitaram as accused to be tried with the respondents No. 1 to 6. 4. According to the petitioner, in addition to respondents No. 1 to 6, who were challaned by the police, he also sought impleadment of Bhanwarlal, Chokharam, Rugharam, Mohanlal, Ramnarayan and Sitaram as accused to be tried with the respondents No. 1 to 6. 4. In the instant petition, the petitioner has not impleaded Bhanwarlal, Chokharam, Rugharam, Mohanlal, Ramnarayan and Sitaram as party respondents though the order impugned dated 15.02.2003 stands in their favour. 5. It is contended by the learned Counsel for the petitioner that after filing of the application under Section 319 of the Code by the petitioner, the trial Court, on appreciation of the evidence produced before it, acquitted the accused who were challaned by the police viz., respondents No. 1 to 6 herein of the offences they were charged with and therefore, though the persons sought to be impleaded as accused cannot be tried with those who have been challaned, but still they can be impleaded as accused and a separate trial can be held for them. 6. Learned Counsel appearing for the respondents No. 1 to 6 submits that so far as the respondents No. 1 to 6 are concerned, they have been already been acquitted and there being no sufficient material before the trial Court including the statement of the petitioner worth reliance on the basis of which the petitioner may claim any chance of conviction of the persons sought to be newly impleaded. 7. In the first information report lodged by the petitioner, the petitioner named as many as 10 persons as assailants, out of which, 6 persons were challaned i.e., respondents No. 1 to 6. However, petitioner in his statement under Section 161, CrPC, named 9 persons as accused and in the statement before the Court he named 12 persons as assailants. The other witnesses produced by the prosecution viz., PW.-2 Bhanwarlal stated before the Court that there were 12 persons who were assailants. In his earlier statement Exhibit D-3 he stated that there were 14 persons. PW.3 Magharam stated that there were 13 persons who were assailants, whereas in his previous statement Exhibit D-11 he stated that there were 14 persons. Thus, the petitioner and other witnesses produced by the prosecution are not consistent as to the number of persons who assaulted the petitioner. There are serious contradictions in the statement of the petitioner and two other alleged eye-witnesses. Thus, the petitioner and other witnesses produced by the prosecution are not consistent as to the number of persons who assaulted the petitioner. There are serious contradictions in the statement of the petitioner and two other alleged eye-witnesses. Thus, from the close scrutiny of evidence produced by the petitioner before the trial Court and sought to be produced, it cannot be said that there is reasonable prospect for conviction of the persons sought to be impleaded. 8. The power under Section 319 of the Code is discretionary power of the trial Court and therefore, the discretion exercised by the trial Court cannot be lightly interfered with unless it is shown that the order refusing to implead the persons as accused has been made mechanically or is arbitrary or perverse. 9. In the instant case, the trial Court has taken into account every aspect and the entire material placed before it and more particularly the chance of conviction of the persons sought to be impleaded as accused and finding the case of complainant/prosecution full of contradictions on the material point and the fact that the petitioner, after having got examined himself , waited for about two years to move the application for impleading other persons as accused who have not been challaned by the police and allowed the prosecution to examine almost all witnesses. 10. In Michael Machado & Anr. vs. Central Bureau of Investigation & Anr., reported in 2000 (3) SCC 262 , the Honble Supreme Court held that power under Section 319 of the Code is discretionary and should be exercised only to achieve criminal justice and that the Court should turn against another person whenever it comes across evidence connecting that other person also with the offence. It was further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has already proceeded and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court while examining an application under Section 319, CrPC, has also to bear in mind that there is no compelling duty of the Court to proceed against other persons. The Court while examining an application under Section 319, CrPC, has also to bear in mind that there is no compelling duty of the Court to proceed against other persons. In a nut shell, it means that for exercise of discretion under Section 319, CrPC, all relevant factors including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. 11. In Krishnappa vs. State of Karnataka, reported in 2004 AIR SCW 4809, the Honble Supreme Court while examining the case on identical facts and applying the test of the ratio laid down in Michael Machado (Supra) held that the trial Magistrate is right in rejecting the application. In the case before Honble Supreme Court in Krishnappa (Supra) the incident was of the year 1993 and 17 witnesses had been examined. The statement of the accused under Section 313, CrPC, had also been recorded. The role attributed to the persons sought to be impleaded was of instigation. In that case, the trial Magistrate dismissed the application filed under Section 319 of the Code. However, on revision to the High Court, the order of Magistrate was set aside. The order of the High Court was carried to Apex Court and the Apex Court set aside the order of the High Court and restored the order of Magistrate by which the application seeking implicating the persons sought to be added as accused was rejected. 12. The Honble Supreme Court in Michael Machado (Supra) held that the power conferred on the Court under Section 319, CrPC, is only a discretion as could be discerned from the words "the Court may proceed against such person". It 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 for the offence concerned, the Court should refrain from adopting such a course of action. Thus, it is clear that before the Court exercises the power conferred under Section 319, CrPC, it 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 for the offence concerned. 13. Thus, it is clear that before the Court exercises the power conferred under Section 319, CrPC, it 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 for the offence concerned. 13. The power under Section 401, CrPC, is to be exercised to correct miscarriage of justice. However, it depends upon the facts and circumstances of each case whether or not there is justification to exercise such discretionary power. In Jagnnath Choudhary vs. Ramayan Singh, 2002 (5) SCC 659, the Honble Apex Court held that the object of revisional jurisdiction, as envisaged under Section 401, CrPC, is to confer upon superior criminal Courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and on the other hand in some undeserved hardship to the individuals. Where the Court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned Judgment and order, the revision cannot succeed. The jurisdictional sweep of the process of the High Court under the provisions of Section 401, CrPC, is very much circumscribed. 14. This is a revision by complainant. In Harihar Chakravarty vs. State of West Bengal, AIR 1954 SC 266 , the Honble Supreme Court held that the revisional jurisdiction of the High Court is not to be lightly exercised when it is invoked by a private complainant. 15. Section 319 of the Code provides that 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 together with the accused, the Court may proceed against such person for offences which appears to have committed by him. Thus, it is clear that at the stage in the course of any inquiry into, or trial of , an offence, the Court would consider whether such person, not being an accused, has committed an offence and could be tried together with accused who is already facing trial before the Court. Thus, it is clear that at the stage in the course of any inquiry into, or trial of , an offence, the Court would consider whether such person, not being an accused, has committed an offence and could be tried together with accused who is already facing trial before the Court. Sub-section (4) of Section 319 of the Code provides that where the Court proceeds against any person under Sub-section (1) then the proceeding in respect of such persons shall be commenced afresh, and the witnesses re-heard. Thus, it is clear that if a person is arraigned as an accused, a de novo trial has to be held. 16. From the plain reading of Section 319 of the Code it is clear that at the stage in the course of any inquiry into, or trial of an offence, if it appears from the evidence that any person not being accused has committed an offence for which such person could be tried together with the accused, the Court may proceed against such person for offences which he appears to have committed. 17. In the instant case, the petitioner seeks impleadment of some other persons as accused on the basis of his own statement which was recorded on 12.03.2001. The prosecution did not think it proper to implicate some other persons keeping in view the material contradictions in the statement of the petitioner before the Court and his previous statement and Parcha Bayan as also contradictions in the statement of other witnesses. It was open for the petitioner to have moved the application soon after his statement was recorded yet the petitioner waited for a period of almost 2 years and moved such application when the trial of the accused, who were challaned by the police, was leading to the end. Even from the evidence on the basis of which the persons sought to be impleaded as accused, there is hardly any hope or reasonable prospect of conviction of the persons sought to be newly added and arraigned as accused. The respondents No. 1 to 6 who were challaned and tried by the trial Court have been acquitted by the trial Court by a well reasoned Judgment . The respondents No. 1 to 6 who were challaned and tried by the trial Court have been acquitted by the trial Court by a well reasoned Judgment . In this view of the matter, in the instant case, even if according to the petitioner the persons named in the application other than those challaned, if impleaded and arraigned as accused, there is hardly any chance of their conviction and, therefore, in my view the trial Court was justified in refusing to implead them as accused. 18. In view of the aforesaid discussion, I do not find any merit in the revision petition and the same is dismissed accordingly.