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2006 DIGILAW 2360 (RAJ)

Hemlal v. State of Rajasthan

2006-07-27

HARBANS LAL

body2006
Judgment Harbans Lal, J.-This revision petition has been filed by Hemlal, the complainant-petitioner under Section 397/401, CrPC against the order 28.03.2006 passed by the learned Additional Sessions Judge, Malpura in Sessions Case No. 18/2003 rejecting his application under Section 319, CrPC for arraigning Bhag Chand and Prahlad as additional accused. 2. Briefly stated, the relevant facts leading to filing of this revision petition and necessary for its disposal are that the complainant-petitioner lodged an FIR No. 149/2003 at P.S. Todaraisingh on 28.06.2003 to the effect that Bhag Chand and Prahlad alongwith Non-petitioner Nos. 2 to 4 assaulted the complainant-party as a result of which Ladu received injuries to which he later succumbed. The case was initially registered for the offences under Sections 147, 148, 149, 341, 323, 307 and 379, IPC and after the death of Ladu, offence under Section 302, IPC was also added. After investigation, a charge-sheet was filed on 24.09.2003 against Non-petitioner Nos. 2 to 4 and no charge-sheet was filed against Bhag Chand and Prahlad. The case was committed to the Court of Sessions from where it was transferred to the learned Court below. After hearing learned Counsel for the parties and on the basis of the materials produced with the charge-sheet under Section 173(2), CrPC the charges were framed against the accused Non-petitioner Nos. 2 to 4. The prosecution examined 41 witnesses including Hemlal PW.12, Shanker PW.29, Ramesh PW.30, Hari Ram PW.31 and Ram Singh PW.32. Thereafter, the accused were examined under Section 313, CrPC. They examined three witnesses in their defence. Learned Court below started hearing arguments on 21.03.2006. It was thereafter that on 25.03.2006, an application under Section 319, CrPC was filed by and on behalf of complainant-petitioner for arraigning accused Bhag Chand and Prahlad as additional accused persons. The accused Non-petitioner Nos. 2 to 4 filed a detailed reply to the application on 27.03.2006. The trial Court after hearing both the sides and taking into consideration the stage of the trial, the delay in making the application and the guidelines laid down in this behalf , dismissed the application on 28.03.2006. Hence, this revision. 3. The accused Non-petitioner Nos. 2 to 4 filed a detailed reply to the application on 27.03.2006. The trial Court after hearing both the sides and taking into consideration the stage of the trial, the delay in making the application and the guidelines laid down in this behalf , dismissed the application on 28.03.2006. Hence, this revision. 3. Learned Counsel for the petitioners has contended that the trial Court has committed jurisdictional error in rejecting the application under Section 319, CrPC on the ground of delay whereas such an application can be filed at any stage and can be allowed if it appears from the evidence that has been led in the case that any person other than the accused persons who are facing trial has committed any offence for which such person can also be tried together with the accused. Learned trial Court has refused to proceed against Bhag Chand and Prahlad for the reason that there is little likelihood of their being convicted after the trial. Learned Counsel has submitted that Shanker PW.29 and Ramesh PW.30 are eye witnesses who have mentioned the names of Bhag Chand and Prahlad and their role in the occurrence in their statements under Section 161, CrPC as well as in their evidence in Court. Their evidence stands corroborated by the medical evidence also. 4. Learned Public Prosecutor as well as learned Counsel for the accused Non-petitioner Nos. 2 to 4 have tried to support the order impugned. They have submitted that Hemlal PW.12 has stated that his brother deceased Ladu had told him that Narain, Prahlad beat him with chain and Gandasi on his head. Bhag Chand struck him with a stick on his hands. Shanker PW.29 has not stated that Prahlad struck Ladu on his head with Gandasi. He has rather stated that Narain was having Gandasi. Ramesh PW.30 has also stated that Narain had a Gandasi and others had sticks. According to him, Narain gave a blow on the ear of Ladu. His ear was cut and Narain then gave a blow on his head. On the one hand he has stated that both Narain and Prahlad had Gandasis but lateron he has stated that Prahlad had a lathi. According to him, Narain gave a blow on the ear of Ladu. His ear was cut and Narain then gave a blow on his head. On the one hand he has stated that both Narain and Prahlad had Gandasis but lateron he has stated that Prahlad had a lathi. They have, therefore, urged that the learned Court below has rightly come to the conclusion that there was no reasonable prospect of these persons namely, Bhag Chand and Prahlad being convicted at the trial in view of the contradictory and highly discrepant statements of the witnesses as shown by them. 5. It is no doubt true as held in Smt. Rukhsana Khatoon vs. Sakhawat Hussain & Ors., AIR 2002 SC 2342 , that the persons named as accused in FIR but not charge-sheeted can be summoned and arraigned as accused under Section 319, CrPC particularly when the evidence of the prosecution witnesses corroborates the role of these persons in the alleged incident. It is also held in Municipal Corpn. of Delhi vs. Ram Kishan Rohtagi, 1983 (1) SCC 67, that Section 319, CrPC gives ample power to any Court to take cognizance and add any person not being an accused before it and try him alongwith other accused, if there appears during the trial sufficient evidence indicating his involvement in the offence. This power is an extraordinary power of the Court and should be used very sparingly. Their lordships of the Supreme Court have held in the case of Michael Machado vs. Central Bureau of Investigation, 2000 CrLJ 1706 , that the Court must have reasonable satisfaction from the evidence already collected that a person who is sought to be arraigned as additional accused has committed the offence alleged and such person can be tried alongwith already arraigned accused. It has further been held that the power conferred on the Court under Section 319, CrPC is only a discretion as is evident from the use of the words "the Court may proceed against such person". It has been observed as under:- "The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another also with the offence. It has been observed as under:- "The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another also with the offence. 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 person. 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." 6. In the instant case, learned trial Court has considered the matter in proper perspective keeping in view the nature of evidence that has come on record against Bhag Chand and Prahlad as also the settled legal position in this behalf for the exercise of extraordinary power conferred on the Court under Section 319, CrPC. 7. I do not find any error, illegality or impropriety in the order impugned. No case for interference in the order passed by the learned trial Court seems to be called for, Justified and warranted in the face of the evidence on record as well as settled legal position and the guidelines laid down by the Honble Apex Court. 8. Consequently, this revision petition being devoid of merit and substance deserves to be and is hereby dismissed.