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2007 DIGILAW 481 (RAJ)

Jafar Mohd. Shah v. State of Rajasthan

2007-03-02

GOPAL KRISHAN VYAS

body2007
Judgment Gopal Krishan Vyas, J.-By the present petition, the petitioner complainant seeks to challenge order dated 210.2005 passed by learned Additional Sessions Judge (Fast Track) No. 1, Bikaner (hereinafter, the trial Court) in Sessions Case No. 88 of 2003 whereby the trial Court has rejected the application filed by the complainant through the Public Prosecutor with the prayer for taking cognizance against Non-petitioner No. 2. 2. It is submitted by learned Counsel for the petitioner that FIR was registered before the Police Station Kotgate on the basis of statement of Hasan Shah, Advocate. In his statement, late Hasan Shah alleged that on 31.08.2000 at 11.30 A.M. he alongwith Jafar Shah, Amir Shah and Rehmat Ali was going towards BJP office and when they reached at the office of the BJP, at that time, Liyakat Shah, Latif Shah, Arshad Shah and 3-4 other persons armed with guns and other weapons surrounded them. It was alleged by late Hasan Shah that Amin Shah was having a pistol with him and the assailant party, in order to kill him, started firing as a result of which he received injuries on the right side of his chest; thereafter, when his companions raised hue and cry, the assailants ran away on motor-cycle and in jeep. Late Hasan Shah disclosed in the complaint that there was previous enmity between the assailants and him and they had made two attempts on his life earlier also which were unsuccessful and litigation was going in between the parties. It is submitted by the learned Counsel for the petitioner that Hasan Shah was taken to hospital where he was treated, however, he expired while still under treatment. It is submitted that after usual investigation, challan was filed and although there being specific mention and injury attributed to non-petitioner Amin Shah, though charge-sheet was filed against four persons but how the investigating agency omitted to file charge-sheet against Non-petitioner No. 2 it is best known to them although he was named by them. After filing of the challan, the case was committed to the Court of sessions and came to be tried by Additional Sessions Judge (Fast Track) No. 1, Bikaner. After framing of the charge, the trial commenced. 3. It is disclosed in the petition that during trial Jafar Shah was examined as PW. After filing of the challan, the case was committed to the Court of sessions and came to be tried by Additional Sessions Judge (Fast Track) No. 1, Bikaner. After framing of the charge, the trial commenced. 3. It is disclosed in the petition that during trial Jafar Shah was examined as PW. 10 and, after his examination-in-chief , an application was moved under Section 319, Criminal Procedure Code for taking cognizance against Amin Shah as there was material available on record which disclosed his involvement in the offence. However, the trial Court vide the impugned order dated 210.2005 rejected the application filed under Section 319, Criminal Procedure Code. 4. It is contended by learned Counsel for the petitioner that the trial Court has erred in minutely discussing the evidence at the time of deciding application under Section 319, Criminal Procedure Code which is unwarranted whereas, at the stage, the Court ought only to see whether from the evidence available on record prima facie case of involvement of such person is made out for his trial alongwith the accused in the case. He argues that the appreciation of the evidence by the Court below in the manner as deciding the case finally is grossly erroneous and illegal at the stage of deciding application under Section 319, Criminal Procedure Code. Learned Counsel for the petitioner urged that the trial Court has failed to consider the dying declaration in which the name of Non-petitioner No. 2 categorically mentioned by late Hasan Shah and specific role is attributed to him in the assault. According to him, when the statement of PW. 10 Jafar Ali was recorded the learned trial Court was under obligation to consider this aspect of the matter. He contends that the trial Court has ignored the evidence against the non-petitioner and dealt with entirely irrelevant aspects while deciding the application under Section 319, Criminal Procedure Code. It is also contended by learned Counsel for the petitioner that certain discrepancies which did not directly have any bearing on the question have been taken into account by the trial Court vide the impugned order for rejecting the application which is grossly erroneous. It is also contended by learned Counsel for the petitioner that certain discrepancies which did not directly have any bearing on the question have been taken into account by the trial Court vide the impugned order for rejecting the application which is grossly erroneous. It is pointed out by the learned Counsel that in Para 20 of the impugned order the trial Court has stated that : It is contended by learned Counsel for the petitioner that the trial Court has committed grave illegality while concluding that at the stage the application is not maintainable. Learned Counsel for the petitioner relied upon Judgment of the Supreme Court, reported in the case of Rukhsana Khatoon vs. Sakhawat Hussain & Ors., 2004 SCC (Cr) 1153. 5. In the said reported Judgment , the Supreme Court has categorically held as under : "Hence, it is difficult to accept the contention of the learned Counsel for the appellants that the term "evidence" as used in Section 319 of the Criminal Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. The section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. The word "evidence" occurring in Sub-section (1) is used in a comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that the person not arraigned before it is involved in the commission of the crime". Learned Counsel for the petitioner argues that cognizance can be taken even on the basis of examination-in-chief , therefore, the finding of the trial Court that application is erroneous and the same can only be entertained after recording examination-in-chief and cross-examination both is contrary to law. Learned Counsel for the petitioner argues that cognizance can be taken even on the basis of examination-in-chief , therefore, the finding of the trial Court that application is erroneous and the same can only be entertained after recording examination-in-chief and cross-examination both is contrary to law. Learned Counsel for the petitioner lastly contended that perusal of the impugned order goes to show that the trial Court arrived at the finding and considered the entire evidence which is not permissible under the law at the stage of consideration of the application under Section 319, Criminal Procedure Code. 6. Per contra, learned Counsel for the Non-petitioner No. 2 Shri N.K. Bohra stated that the petitioner is not entitled to get any relief in this revision petition because the dying declaration was very much on record at the time of filing the charge-sheet. He contends that no such question was even at the time of filing challan nor the application was moved at the time of framing the charge against the accused persons. Learned Counsel for the no-petitioner vehemently contended that the trial Court has rightly considered all aspects of the matter. It is argued that the trial Court has categorically found that there is no evidence on record upon which it can be said that ultimately the person against whom cognizance is sought to be taken could be convicted. According to him, therefore, the application has been rightly rejected by the trial Court. 7. I have perused the impugned order as well as statement of Hasan Shah. Obviously name of non-petitioner Amin Shah is very much there in the statement of late Hasan Shah and learned Counsel for the Non-petitioner No. 2 does not deny that name of Amin Shah is there in the dying declaration of late Hasan Shah. It is true that at the time of deciding application under Section 319, Criminal Procedure Code only the material on record can be seen and if prima facie case appears to be peeping through the evidence suggesting involvement of such person sought to be tried together with the accused then cognizance is required to be taken. At the stage, it is not required to weigh the merit of the evidence to finally conclude whether such person against whom cognizance is sought to be taken will face conviction or not. At the stage, it is not required to weigh the merit of the evidence to finally conclude whether such person against whom cognizance is sought to be taken will face conviction or not. Such a consideration of the evidence in its deeper aspects is prejudicial to the trial and, therefore, the Apex Court has considered and observed that the term "evidence" occurring in Sub-section (1) is used in a comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that the person not arraigned before it is involved in the commission of the crime. 8. Upon perusal of the order impugned it appears that the trial Court has considered the entire evidence as if it was deciding the case finally against Amin Shah. In my opinion, at the time of deciding application under Section 319, Criminal Procedure Code, the power is vested in the Court to enable it to take cognizance against such person as well who has hitherto not been arraigned before it and in the opinion of the Court such person too may be tried together with the persons already facing the trial for commission of the offence. In other words, the defence of such accused need not, at the stage, be taken into account for finding whether cognizance so taken against such person would ultimately result in conviction. The evidence only requires to be weighed for arriving at a judicious presumption that such person is also involved in the commission of the crime and he may also be tried together at the trial for commission of the crime and he may also be tried together at the trial for commission of the offence. It is true that as per the Judgment of the Supreme Court in the case of Michael Machado & Anr. vs. Central Bureau of Investigation & Anr., 2000 Cr LR 265 (SC), held that before Court exercises the power conferred under Section 319 Criminal Procedure Code the Court is required to satisfy that there is a reasonable prospect of the case as against the person sought to be arraigned as accused ending in conviction for the offence concerned. vs. Central Bureau of Investigation & Anr., 2000 Cr LR 265 (SC), held that before Court exercises the power conferred under Section 319 Criminal Procedure Code the Court is required to satisfy that there is a reasonable prospect of the case as against the person sought to be arraigned as accused ending in conviction for the offence concerned. But, in the case on hand, the learned trial Court has rejected the application while treating the application as not maintainable and so also while finding that application was prepared on 20.11.2004, the date on which examination-in-chief of PW. 10 Jafar was recorded. It may be observed that while deciding the application under Section 319, Criminal Procedure Code the material on record is required to be seen and there is no question of hearing the person sought to be arraigned at the stage. In the circumstances, the trial Court was not expected to hear arguments of the parties, at the stage, giving opportunity of advancing defence. Such a measure is not contemplated by the provision of Section 319, Criminal Procedure Code. 9. In these circumstances, the learned trial Court has erred in law while deciding the application under Section 319, Criminal Procedure Code. Consequently, this revision petition is allowed. The impugned order dated 210.2005 is quashed and set aside. The case is remitted to the trial Court to decide the application afresh after taking into account dying declaration of late Hasan Shah, Exhibit P. 19 and the record of the case including statement of Jafar Shah, PW. 10 and other witnesses as per the Judgment of the Apex Court expeditiously, preferably within one month. Record of the trial Court be sent back forthwith.