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2005 DIGILAW 2456 (RAJ)

Geeta Devi v. State of Rajasthan

2005-09-15

R.S.CHAUHAN

body2005
Judgment R.S. Chauhan, J.-The petitioners are challenging the order dated 210.2002 passed by the learned Additional Sessions Judge (Fast Track), Sri Ganganagar whereby he had allowed the revision petition and had quashed and set aside the order dated 27.04.2002 passed by the Civil Judge (J.D.) and Judicial Magistrate, First Class, Sadulsahar. 2. Once the evidence started trickling in against the present petitioners during the course of a trial, the non-petitioner No. 2 Dara Ram, the complainant in the criminal case, filed an application under Section 319, CrPC before the Civil Judge (J.D.) and Judicial Magistrate, First Class, Sadulsahar, inter alia praying that cognizance should be taken against the present petitioners. However, vide order dated 27.04.2002 the learned Magistrate was pleased to dismiss the said application. Thereafter, Dara Ram filed a revision petition before the Additional Sessions Judge challenging the order dated 27.04.2002. Vide order dated 210.2002, the learned Additional Sessions Judge was pleased to accept the revision petition and was pleased to direct the learned Magistrate to take cognizance against the present petitioners under Section 319, CrPC. Since, the present petitioners are aggrieved by the order dated 210.2002 passed by the learned Judge, they have filed the present miscellaneous petition before us. 3. The brief facts of the case are that on 09.03.2001, Dara Ram, the non-petitioner No. 2 before us, had filed a FIR wherein he had claimed that there were certain differences between him and his neighbour, Milkhi Ram. Whenever a "Jagran" or loudspeaker was used by him at night, Milkhi Ram and Ghasi Ram had opposed the said "Jagran". The animosity further deepend during the election when the complainant refused to cast vote in favour of Ghasi Ram. He further alleged that on the date of incident, when he was taking the soil out of his plot, Milkhi Ram came in a drunken condition and started shouting at the complainants brother Mohan. Milkhi Ram also called his son Rajesh, who came out of his house carrying a "lathi" in his hand. He alleged that Milkhi Ram and Rajesh both caught hold of his brother and assaulted him. In order to rescue Mohan, their mother, Vidhya Devi, rushed to the spot. He further claimed that Geeta Devi and Kamla Devi carrying sticks in their hands, reached the spot and assaulted his mother Vidhya Devi. He alleged that Milkhi Ram and Rajesh both caught hold of his brother and assaulted him. In order to rescue Mohan, their mother, Vidhya Devi, rushed to the spot. He further claimed that Geeta Devi and Kamla Devi carrying sticks in their hands, reached the spot and assaulted his mother Vidhya Devi. He further alleged that the gold ornaments worn by his mother were taken away by one Ajay Kumar. Because of the assault on his mother, she became unconscious and fell down. Subsequently, all the accused persons ran away from the scene of the crime. 4. On the basis of the said report, the police registered a formal FIR against six accused persons. However, after a thorough investigation, the police submitted the challan only against four accused persons, but did not submit any challan against the present petitioners. 5. During the course of the trial, the prosecution examined Dara Ram PW. 1, Mohan Lal PW. 2 and Vidhya Devi PW. 3. Therafter, Dara Ram filed an application under Section 319, CrPC. However, vide order dated 27.04.2002, the learned Magistrate dismissed the said application. 6. As stated above, vide order dated 210.2002, the Additional Sessions Judge was pleased to allow the revision petition and was pleased to direct the learned Magistrate to take cognizance against the present petitioners under Section 319, CrPC. 7. Since, the petitioners are aggrieved by the order dated 210.2002, they have filed the present miscellaneous petitioner before us. 8. Mr. Niranjan Singh, the Counsel for the petitioner conceded that Section 319, CrPC certainly empowers the Magistrate to take cognizance against those persons who have not been challened, but against whom evidence has been collected during the course of the trial. However, he contended that such a vast power should be exercised sparingly and only in appropriate cases. He further submitted that the trial is almost at an end as all the eight witnesses have been examined and the case is now posted for final arguments. In case, cognizance were taken against the present petitioners, at such a belated stage, it would entail a de novo trial. All the witnesses would have to be recalled, re-examined and the evidence would have to be reappreciated all over again. He further contended that the injured Vidhya Devi did not reveal in her statement under Section 161, CrPC about the involvement of the present petitioners in assaulting her. All the witnesses would have to be recalled, re-examined and the evidence would have to be reappreciated all over again. He further contended that the injured Vidhya Devi did not reveal in her statement under Section 161, CrPC about the involvement of the present petitioners in assaulting her. Thus, the said revelation, in the Court, is nothing but an improvement. According to him, the learned Judge has not appreciated these points and has erred in passing the impugned Judgment . 9. Mr. B.S. Sandhu, the learned Counsel for the complainant-non-petitioner No. 2, has aruged that the guilty must be punished at all cost. Since, the petitioner were named in the FIR, since they have been named by Dara Ram in his testimony and by injured Vidhya Devi in her statement, therefore, nothwithstanding the fact that the trial is almost complete, cognizance should be taken against the present petitioners, Hence, he has supported the impugned order passed by the learned Judge. 10. Section 319, CrPC reads as below: -"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 persons 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 the offence which he appears to have committed. .(2) Wheresuch 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) .(a) the proceedings in respect of such person shall be commenced afresh, and the witneses re-heard; .(b) subject to the provisions of Clause (b), 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 or trial was commenced." 10. Undoubtedly, the said section bestows a vast power upon the trial Court to take cognizance against those, against whom a challan has not been submitted by the police but, evidence has come during the trial about their involvement in the alleged crime. However, as the power is a vast one, it should be exercised sparingly and under exceptional circumstances. The use of the word "the Court may proceed against such person" clearly indicates that a discretionary power has been vested. It is not a legal duty that the Court must exercise the power in all cases. Thus, the discretion should be exercised judiciously while taking holistic view of the case. A wiff of suspicion should not trigger the trial Court to take cognizance against the alleged offenders. In fact, the trial Court should consider the nature of the offence, the quality of evidence against the alleged offenders, which have been collected during the trial, the stage of the trial, the reasonable possibility of the conviction of the alleged offenders, the time which has been spent in collecting the evidence and the time which would require to recommence and complete a de novo trial. Taking cognizance under Section 319 CrPC is not a knee-jerk reaction, but demands a careful weighing of the conflicting interests. On the one hand, the interest of the society to punish the alleged offenders; on the other hand, the interest of the accused for a speedy trial, and the interest of individuals for protection against needless harassment. The commencement of a de novo trial is not a formality to be observed. The trial Court is expected to apply its mind to these conflicting interest and then to decide whether cognizance should be taken or not against the alleged offenders. 11. The Honble Supreme Court in the case of Michael Machado & Anr. vs. Central Bureau of Investigation & Anr., 2000 CrLR. (SC) 265, has observed that the "discretionary power conferred by Section 319, CrPC should be exercised only to achieve the criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. vs. Central Bureau of Investigation & Anr., 2000 CrLR. (SC) 265, has observed that the "discretionary power conferred by Section 319, CrPC should be exercised only to achieve the criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons....The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. 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."Similar view has been expressed recently by the Honble Supreme Court in the case of Krishnappa vs. State of Karnataka, 2004 (7) SCC 792 . 12. In the instant case, the trial Court has reached the penultimate act of hearing the final argument and delivering the Judgment . All the eight witnesses have been examined and cross-examined. Their evidence is already on record. Interestingly, Vidhya Devi in her statement under Section 161 does not say a word about being assaulted by the present petitioners. In case, she were assaulted by the present petitioners, she would have told the Investigating Officer after the incident. Her silence on this particular point is conspicuous. Their evidence is already on record. Interestingly, Vidhya Devi in her statement under Section 161 does not say a word about being assaulted by the present petitioners. In case, she were assaulted by the present petitioners, she would have told the Investigating Officer after the incident. Her silence on this particular point is conspicuous. Since, Dara Ram, the complainant clearly admits that there is animosity between him and the accused persons, the possibility of roping in of innocent family members, cannot be ruled out. Thus, at best there is a suspicion but not a reasonable belief that the present petitioners were involved in the alleged offence. But, as stated above, mere suspicion should not trigger of an order of cognizance. 13. Without expressing any opinion about the merits of the case, we are of the view that the learned Sessions Judge has erred in not considering the fact that the criminal machinery was started on 09.03.2001 with the lodging of the FIR ; the criminal trial, after a prolonged course of four years, is virtually at an end. The commencement of a de novo trial would unnecessarily prolong a trial for offence under Sections 341, 323 and 324/34, IPC. The learned Sessions Judge has also ignored the guidelines laid down by the Honble Supreme Court in the abovementioned cases. Therefore, the order dated 210.2002 is not legally sustainable. The said order is hereby quashed and set aside. The order dated 27.04.2002 is confirmed. Since, the case has been hanging fire for the last five years, we direct the trial Magistrate to proceed with the trial expeditiously. However, it is clarified that our observations should not affect the merits of the trial. With these observations, the petition is allowed.