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2005 DIGILAW 956 (RAJ)

Sardar Mal v. State of Rajasthan

2005-04-01

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant revision petition under Section 397/401, CrPC, complainant-petitioner has challenged the order dated 012.2004 passed by the Additional Chief Judicial Magistrate, Bali (for short, "the trial Court" hereinafter) in Criminal Original Case No. 648/2002, by which the trial Court dismissed the application under Section 190, CrPC filed by the petitioner-complainant for impleading other persons named in the FIR as accused any try them alongwith the accused already challenged by the police. 2. The facts of the case, in a nut shell, are that on 02.01.2002, a complaint was filed by the petitioner-complainant before the trial Court to the effect that certain persons hatched a criminal conspiracy and prepared forged documents with in intention to devour the land belonging to the complainant. On this, the trial Court sent the complaint under Section 156 (3), CrPC to the police for investigation. Police registered the FIR on the basis of the complaint. After investigation, the police filed challan against accused Narain Lal, Bhawani Shankar and Dinesh Kumar on 012.2002 but left out other persons named in the complaint. On this, the trial Court took cognizance against these three accused. On 12.03.2004, the complainant-petitioner filed an application under Section 190 CrPC for arraigning other persons named in the FIR as accused alongwith these three accused. The trial Court, vide impugned order dated 012.2004, dismissed the said application holding that the cognizance against the left-out persons can be taken only under Section 319, CrPC after recording the statement of witnesses. Hence, this criminal revision. 3. I have heard learned Counsel for the petitioner-complainant and the Public Prosecutor for the State. 4. Learned Counsel for the complainant-petitioner, placing reliance on the decision of the Honble Supreme Court in M/s. SWIL Ltd. vs. State of Delhi & Ors., 2001 CrLJ 4173 , has contended that there is no bar under Section 190, CrPC that once the process is issued, the Magistrate cannot issue process on the next date against other persons named out in the FIR. His further contention is that the those persons are mentioned in the FIR and there are statement of witnesses recorded by the police which involve them in the commission of the crime and as such the impugned order is liable to be set-aside. 5. His further contention is that the those persons are mentioned in the FIR and there are statement of witnesses recorded by the police which involve them in the commission of the crime and as such the impugned order is liable to be set-aside. 5. In the instant case, the complaint was filed on 05.01.2002 and after investigation, the police filed challan against accused Narain Lal, Bhawani Shankar and Dinesh Kumar and left out the other persons named in the FIR. The trial Court took cognizance against these three persons on 012.2002 and issued process. After lapse of 1¼ years, the complainant-petitioner filed the application under Section 190, CrPC. In M/s. SWIL Ltd., the application under Section 190, CrPC was filed on the next date of posting of the case wherein in the instant case, such application has been filed after about 1¼ years of taking cognizance. During this period, trial of those three accused challaned by the police had proceeded. Therefore, the decision in M/s. SWIL Ltd.s case (Supra) has no application to the facts of the instant case. 6. Section 319, CrPC 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 the offence which he appears to have committed. 7. Therefore, it is clear that once the power under Section 190, CrPC has been exercised by taking cognizance and issuing process, further cognizance can be taken under Section 319, CrPC at any stage if from the evidence led by the prosecution it appears that any person not being the accused has committed any offence for which such person could be tried together with the accused already facing trial. In this view of the matter, the trial Court was justified in dismissing the application under Section 190, CrPC filed by the complainant-petitioner on the ground that it was pre-mature. In the circumstances, therefore, I do not find any error or illegality in the impugned order which may require interference. 8. Consequently, the revision petition lacks merit and it is dismissed accordingly.