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2006 DIGILAW 2114 (RAJ)

Sita Ram v. State

2006-07-04

HARBANS LAL

body2006
Honble HARBANS LAL, J.–The instant petition under Section 482 Cr.P.C. is directed against the order dated 21.1.2006 passed by the learned Addl. Sessions Judge, Dausa in Criminal Revision Petition No. 40/2005 whereby the revision petition of the accused petitioner against the order dated 23.3.2005 passed by the learned Addl. Chief Judicial Magistrate, Bandikui has been allowed. (2). The relevant facts are that the petitioner made a report at Police Station Bandikui against accused respondents and the co- accused persons. An FIR being No. 462/2003 came to be registered on its basis for the offences under Sections 447, 323, 341 and 325 I.P.C. After investigation challan was filled against co- accused persons viz. Om Prakash, Munni Devi, Manohar Lal and Mukesh under Sections 341, 323, 447 and 325 I.P.C. No challan was filed against Davendra and Naval. After recording of the statements of seven witnesses, the learned APP filed an application under Section319 Cr.P.C. In reply, the accused non- petitioners submitted that co-accused persons have been wrongly implicated. Their involvement in the alleged offences is not proved from the statements recorded under Section 161 Cr.P.C. There are serious contradictions in the statements regarding their involvement in the occurrence. After hearing both the parties, the learned Magistrate accepted the application under Section 319 Cr.P.C. and by his order dated 23.3.2005 took cognizance against non-petitioners Davendra and Naval non- petitioner Nos. 2 and 3 filed a revision which came to be decided by the learned Addl. District & Sessions Judge, Bandikui by his order dated 21.1.2006. The revision was allowed and the order passed by the learned court below dated 23.3.2005 was quashed. Hence, this petition by the petitioner-complainant. (3). Learned counsel for the petitioner-complainant has contended that the impugned order dated 21.1.2006 being based on surmises and conjectures is illegal and contrary to the law and the facts on record which has resulted into failure of justice. According to him, the names of Naval and Davendra indicating their involvement in the occurrence are clearly mentioned in the FIR along with other accused persons who have been sent up for trial. The witnesses have also supported the FIR in their statements recorded in the court and have proved their participation in the alleged incident. The learned court below has illegally and without jurisdiction embarked upon the appreciation of evidence in its revisional jurisdiction which is not permissible at this stage. The witnesses have also supported the FIR in their statements recorded in the court and have proved their participation in the alleged incident. The learned court below has illegally and without jurisdiction embarked upon the appreciation of evidence in its revisional jurisdiction which is not permissible at this stage. The revisional court cannot and ought not to interfere lightly with the discretion of the trial court. (4). Relying upon Smt. Rukhsana Khatoon vs. Sakhawat Hussain & Ors. AIR 2002 SC 2342 , it is contended by him that the persons named in the FIR as accused, but not charge-sheeted can be summoned and arraigned as additional accused under Section 319 Cr.P.C. particularly when the evidence of the prosecution witnesses corroborates the role of these persons in the alleged incident. (5). In the above case, application under Section 319 Cr.P.C. was made stating that the names of four accused persons find mention in the FIR and the evidence of PW-1 Mohd. Alam and PW-2 Kamal Singh corroborates the role of those persons. The learned Sessions Judge allowed the application and ordered summoning of the above four accused persons to stand trial for the offences under Sections 147, 148, 149 and 302 IPC, but the High Court set aside the said order by holding that Section 319 Cr.P.C. cannot be invoked by the court when the persons mentioned in the FIR are not charge-sheeted. On the matter being taken to the Apex Court, it was held that the impugned order was on the face of it illegal and against the provisions of Section 319 Cr.P.C. Accordingly, the same was set aside and the order of the learned trial court was upheld. (6). It is further contended that the learned revisional court has allowed the revision petition simply for the reason that the application under Section 319 Cr.P.C. was belated in as much as most of the material witnesses had already been examined. It was also submitted that there was no compelling duty of the court to proceed against other persons who were not charge-sheeted. (7). Learned PP for the State has supported the case of the complainant-petitioner. However, learned counsel for non- petitioner Nos. 2 and 3 has seriously contested the contentions of the learned counsel for the petitioner. It was also submitted that there was no compelling duty of the court to proceed against other persons who were not charge-sheeted. (7). Learned PP for the State has supported the case of the complainant-petitioner. However, learned counsel for non- petitioner Nos. 2 and 3 has seriously contested the contentions of the learned counsel for the petitioner. He has submitted that the names of these accused persons are not corroborated by the prosecution witnesses in their statements recorded under Section 161 Cr.P.C. and there are glaring contradictions in the evidence of the prosecution witnesses and their police statements. (8). I have carefully considered the rival submissions made at the bar and have perused the record as well as the impugned orders. (9). The names of these non-petitioners indicating their participation in the alleged incident is mentioned in the FIR Ex.P-1. Sitaram PW-1, Smt. Satto PW-2, Dwarka Prasad PW-3, Mahesh PW-5, Smt. Kishni PW-6 and Pooran PW-7 have all corroborated the FIR and have shown the participation of non-petitioner Nos. 2 and 3 in the alleged occurrence. (10). Considering the evidence that had come on record, learned trial court vide his order dated 23.3.2005 allowed the application under Section 319 Cr.P.C. filed by the learned APP and ordered summoning of non-petitioner Nos. 2 and 3 to face trial alongwith accused persons already facing trial. The order of the learned trial court appears to have been based on a proper appreciation of evidence on record and keeping in view the guidelines laid down in this behalf for the judicial exercise of discretion under Section 319 Cr.P.C. But the learned revisional court has embarked upon a detailed appreciation of evidence on record and considering the fact that some of the witnesses in their statements recorded under Section 161 Cr.P.C. had not named these non-petitioners whereas they have named them and shown their participation in the alleged occurrence in their statements recorded during the trial, set aside the order of the trial court. It further appears that the revisional court has done so considering the application under Section 319 Cr.P.C. to be highly belated. (11). It further appears that the revisional court has done so considering the application under Section 319 Cr.P.C. to be highly belated. (11). Section 319 of the Code of Criminal Procedure, 1973 reads as below: "319(1) 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. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid . . . " (12). A perusal of this provision shows that the discretionary power has been conferred on the Court to summon any person as an accused provided it is satisfied that the evidence or circumstances of the case disclose that a person, not brought up for trial should be arraigned as an accused and must be made to face the trial. This power can be exercised at any stage of the proceedings. (13). It has been held by the Honble Apex Court in Shashikant Singh vs. Tarkeshwar Singh and anr. - (2002)5 SCC 738 that trial of newly added accused on conclusion of main trial can be held. Requirement under sub-section (1) of Section 319 Cr.P.C. that person summoned could be tried together with the accused is directory whereas requirement under sub-section (4) of Section 319 Cr.P.C. regarding de novo trial of such person is mandatory. (14). In view of the law propounded by the Honble Apex Court in the aforesaid case, the view expressed by this court in Samartha Ram vs. State of Rajasthan & Ors. RLW 2002(2) Raj. 1328, Chittar and ors. vs. State of Rajasthan - 1998 RCC 89 and Panchu Lal vs. State of Rajasthan - RLW 1998(3) Raj. 1992 stands impliedly over ruled. (15). It is true that the Apex Court in Michael Machado and anr. vs. Central Bureau of Investigation & anr. - 2000 Cr.L.J. 1706 (SC) has observed that the power under Section 319 Cr.P.C. is discretionary and 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 Cr.L.J. 1706 (SC) has observed that the power under Section 319 Cr.P.C. is discretionary and 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. It was further held that the 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. The court has also to bear in mind while examining an application under Section 319 Cr.P.C. that there is no compelling duty of the court to proceed against other persons. If there is prima facie case and there is reasonable prospect of conviction of the persons being arraigned as additional accused for the alleged offences, the court may arraign and summon such persons as additional accused to face the trial along with accused already facing trial if the trial is still pending and in case trial has already concluded, such persons may be tried separately as has been held in the case of Shashikant Singh vs. Tarkeshwar Singh & anr. (supra). (16). It has been observed in Harihar Chakravarty vs. State of West Bengal - AIR 1954 SC 266 that the revisional jurisdiction is not to be lightly exercised when it is invoked by a private complainant. (17). While dealing with the scope and object of the revisional jurisdiction, the Apex Court has observed in Jagannath Choudhary vs. Ramayan Singh - 2002(5) SCC 659 that the object of conferring upon superior criminal courts revisional jurisdiction is just as 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 of apparent harshness of treatment which has resulted in some undeserved hardship to the individuals. (18). In view of the fore-going discussion, it is thus plain that the learned revisional court has embarked upon the appreciation of evidence at the stage of examining and deciding the application under Section 319 Cr.P.C. which is not permissible under the law. The court has to see only a prima facie case against the non-petitioners on the basis of the evidence on record. The court has to see only a prima facie case against the non-petitioners on the basis of the evidence on record. It may not be out of place to state here that even uncrossed statement of witnesses is evidence which can be looked into while deciding the application under Section 319 Cr.P.C. Although, material witnesses have already been examined in this case by the trial court, but that by itself cannot be allowed to over weigh the positive evidence that has come on record against the non-petitioner Nos. 2 and 3 in this case. It cannot be said with certainty at this stage that there is no reasonable prospect of conviction of non-petitioner Nos. 2 and 3. (19). In this view of the matter, therefore, the order of the learned Addl. Sessions Judge is not sustainable and deserves to be set aside. (20). In the result, this petition is allowed and the order of the learned Addl. Sessions Judge dated 21.1.2006 is set aside and that of the trial court is restored. The trial court is directed to proceed in accordance with the aforesaid order and the observations made herein.