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2005 DIGILAW 2997 (RAJ)

Ram Niwas v. State of Rajasthan

2005-11-16

R.S.CHAUHAN

body2005
Judgment R.S. Chauhan, J.- The petitioner has challenged the order dated 29.05.2003 passed by the learned Additional Sessions Judge (Fast Track) No. 2, Sikar, camp at Neem-ka-Thana, whereby an application moved by the petitioner under Section 319, CrPC has been dismissed. 2. Brief facts of the case are that on 02.09.1996 at about 6.30 PM, when complainants wife was going, she was attacked by Kishori, Jagdish, Sarjit and Sheo Narayan. Because of this attack, his wife became unconscious. The complainants mother, who was walking behind his wife, was also assaulted. Subsequently, his father rushed to their rescue; his father was surrounded and assaulted by Ram Singh, Ram Kishore, Jagdish and other accused persons mentioned above. Subsequently, his father expired. On the basis of this report a formal FIR No. 101/1996 was registered for the offence under Sections 147, 148, 149, 323 and 302, IPC. However, after investigation while challan was submitted against other accused persons, no challan was submitted against the present respondent Nos. 2-6. During the course of trial, evidence started coming in about the involvement of these five persons in the alleged crime. Therefore, the complainant moved an application under Section 319, CrPC. But the learned Additional Sessions Judge dismissed the said application vide order dated 29.05.2003. Hence, this petition before us. 3. Shri Anoop Dhand, learned Counsel for the petitioner has argued that in the testimony of Ram Niwas (PW. 2) Ramesh Kumar (PW. 7), Kanesh (PW. 8), Bhagwati (PW. 12), Kailash (PW. 13), Ramji Lal (PW. 15) and Sumitra (PW. 17), there is sufficient evidence to point to the involvement of respondents No. 2 to 6 in the alleged offences. Consequently, he has argued that the learned Judge has erred in critically analysing the evidence at the stage of taking cognizance under Section 319, CrPC and in rejecting the said application. The learned trial Judge has, clearly, over-stepped the jurisdiction vested in him. Therefore, the impugned order should be quashed and set aside. 4. Shri Gaurav Anand, learned Counsel for respondents No. 5 and 6, has argued that the testimony of these witnesses is belied by the Injury Report as according to witnesses Santosh and Lali are alleged to have assaulted the deceased with Lathi on his feet. However, according to the Injury Report, there is no injury by a blunt weapon on the feet of the deceased. However, according to the Injury Report, there is no injury by a blunt weapon on the feet of the deceased. Therefore, there is a clear cut contradiction between the ocular and the medical evidence. According to him, thus, there is not even a prima facie case against Santosh and Lali. Therefore, the impugned order should not be disturbed. 5. We have heard both the learned Counsels for the parties as well as the learned Public Prosecutor for the State of Rajasthan. 6. The very ambit of Section 319, CrPC is to empower the trial Court to take cognizance against those persons who are alleged to have been involved in an offence, but who have not been arrayed as accused by the investigating agency while filing the charge-sheet. Section 319, CrPC comes not effect once the evidence comes trickling in during the course of trial against the alleged offender. In case there is prima facie case against the alleged offenders, the Court should take cognizance against them. At the juncture of taking cognizance the Court should not critically analyse the evidence. For the purpose of taking cognizance, the existence of a prima facie case is sufficient. It is only at a later stage that the trial Court is called upon to appreciate the evidence in proper perspective. Moreover, the duty of the Court is not only to protect the innocent, but also to punish the guilty. In case the jurisdiction under Section 319, CrPC is not exercised properly by the trial Court, chances are that those who are alleged in the offence might go scott free. The society cannot be exposed to the dangers created by those who take law in their own hands. 7. Considering the fact that the large number of witnesses have deposed against the respondents No. 2 to 6, a prima facie case does exist against them for their involvement in the alleged offence. Thus, in our opinion, the learned Magistrate should have exercised the jurisdiction vested in him under Section 319, CrPC. 8. 7. Considering the fact that the large number of witnesses have deposed against the respondents No. 2 to 6, a prima facie case does exist against them for their involvement in the alleged offence. Thus, in our opinion, the learned Magistrate should have exercised the jurisdiction vested in him under Section 319, CrPC. 8. We allow this petition and direct the learned Additional Sessions Judge to rehear the arguments of the learned Counsel for the petitioner and the learned Counsel for the State and pass the necessary orders in accordance with Section 319, CrPC within a period of two weeks from the date of the receipt of the certified copy of this order and to expeditiously complete the trial as the trial has been hanging fire since 1996.