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2008 DIGILAW 183 (RAJ)

Girraj v. State of Rajasthan

2008-01-22

NARENDRA KUMAR JAIN

body2008
ORDER Heard learned counsel for the parties. 2. The point involved in the present revision petition is, "whether the trial Court has jurisdiction to take cognizance under Section 319, Cr. P.C., against the persons, who have not been made accused in the charge-sheet, on the basis of materials contained in the charge-sheet and/or before adducing any prosecution evidence during trial of the case". 3. Briefly, stated the facts of the case are that on 12-11-1995, the complainant Ramniwas son of Lala Meena, lodged FIR at Police Station, Lakheri, District Bundi against five accused-persons, namely; Girraj, Ramswaroop, Pushp Chand, Shoji and Ratan Lal i.e. FIR No. 202/1995 under Sections 147, 341 and 323, IPC. During investigation, the injured Ramniwas succumbed to the injuries and the offence was converted into the offence under Section 302, IPC. After completion of investigation of the case, the Police filed a charge-sheet against two accused-persons namely; Shoji alias Surajmal and Ramswaroop son of Dhanna for the offence under Section 302/ 34, IPC. The case was committed to the Court of Sessions Judge, which was transferred for trial to the Court of Additional District and Sessions Judge, Bundi. 4. The trial Court treated the First Information Report, lodged by the deceased Ramniwas, as dyeing declaration, wherein there were allegations against three more accused-persons also namely; Girraj, Ratan Lal and Pushp Chand, took cognizace against them vide order dated 6-9-1996 and summoned them through the non-bailable warrants. 5. The said order taking cognizance was challenged by all the five accused-persons before this Court in S.B. Criminal Revision Petition No. 463/1996. This Court vide order dated 18-2-1998 disposed off the revision petition with a liberty to the accused-persons to move an application for review of the order dated 6-9-1996 in the trial Court in view of the judgment of the Hon'ble Supreme Court in the case of K. M. Mathew v. State of Kerala, reported in AIR 1992 SC 2206 : (1992 Cri LJ 3779). 6. Subsequently, an application was moved on behalf of the petitioners viz. Girraj, Ratan Lal and Pushp Chand before the trial Court to review the order dated 6-9-1996. The said application for review was dismissed by the trial Court vide order dated 11-7-2001, which has been impugned in this revision petition. 7. 6. Subsequently, an application was moved on behalf of the petitioners viz. Girraj, Ratan Lal and Pushp Chand before the trial Court to review the order dated 6-9-1996. The said application for review was dismissed by the trial Court vide order dated 11-7-2001, which has been impugned in this revision petition. 7. Learned counsel for the petitioners contended that the trial Court committed an illegality in taking cognizance against the present three petitioners at the stage of framing of charges, the trial Court had jurisdiction to consider the request for taking cognizance only after recording the statement of some prosecution witnesses, therefore, the said order is without jurisdiction and the same is liable to be set aside. He further contended that on earlier occasion this Court vide its order dated 18-2-1998 gave a liberty to the petitioners to file a review petition before the trial Court itself to review the order dated 6-9-1996 taking cognizance against the petitioners and in pursuance of that liberty an application was moved by them, but the trial Court vide impugned order dated 11-7-2001 rejected the same on the ground that in case the order dated 6-9-1996 is set aside, then it will amount to review of that order, whereas the trial Court has got no powers of review. He, therefore, contended that the impugned order passed by the trial Court is liable to be set aside. 8. Learned Public Prosecutor for the State as well as the learned counsel for the complainant, both supported the impugned judgment passed by the trial Court and contended that after granting liberty to the accused-persons by this Court on 18-2-1998. the application was not moved immediately, but the same was moved on 24-2-2001, therefore, the trial Court rejected the review application filed by the petitioners, not only on the ground that the trial Court has no jurisdiction to review the order, but also on the ground that the application was not moved for about three-years. Therefore, they contended that there is no merit in this revision petition and the same is liable to be dismissed by this Court. 9. I have considered the submissions of the learned counsel for the parties and examined the impugned order as well as the record of the trial Court, which was summoned. 10. Therefore, they contended that there is no merit in this revision petition and the same is liable to be dismissed by this Court. 9. I have considered the submissions of the learned counsel for the parties and examined the impugned order as well as the record of the trial Court, which was summoned. 10. So far as the facts of the case are concerned, there is no dispute in between the parties that the police filed a charge-sheet against two persons, namely; Shoji alias Surajmal and Ramswaroop only. The concerned Magistrate committed the case for trial to the Court of Sessions Judge, who transferred the same for trial to the Court of Additional Sessions Judge. The case was fixed for framing of charges against the accused-persons. The trial Court framed charge against two accused-persons on 6-9-1996 under Section 302/149, IPC and on the same day passed an order to register the case against three accused-petitioners and summoned them for framing charge through non-bailable warrants. No prosecution witnesses had been examined before passing the impugned order dated 6-9-1996. It is an admitted case of the parties that the trial Court took cognizance against the present petitioners vide order dated 6-9-1996 on the basis of materials contained in charge-sheet. 11. So far the position of law is concerned, it is clear that the trial Court has jurisdiction to take cognizance during trial of the case, against other persons under Section 319, Cr. P.C., if some evidence comes on record to proceed against them. 12. For ready reference, Section 319, Cr. P.C. is reproduced, as under : 319. Power to proceed against other persons appearing to be guilty of offence. - (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. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then - (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard. (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 13. The words used in Section 319, Cr. P.C. "from the evidence" has been inter-pretated by the Hon'ble Supreme Court in the case of Lok Ram v. Nihal Singh, reported in (2006) 10 SCC 192 : (2006 Cri LJ 2366), wherein it is held that the word "evidence" in Section 319, Cr. P.C. contemplates the evidence of witnesses given in Court. The trial Court can take such a step to add such person as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. 14. Paras 10 and 11 of the Judgment of the Hon'ble Supreme Court in the case of Lok Ram v. Nihal Singh (2006 Cri LJ 2366) (supra) are reproduced, as under : 10. On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. The trial Court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of material available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision in Sohan Lal v. State of Rajasthan, (1990) 4 SCC 580 : (1990 Cri LJ 2302), the position of an accused who has been discharged stands on a different footing." 11. Power under Section 319, of the Code can be exercised by the Court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extra-ordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates the evidence of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned." 15. In view of the judgment of the Hon'ble Supreme Court, as referred above, it is clear that the trial Court has jurisdiction to take cognizance against other persons, but the same cannot be taken on the basis of materials available in the charge-sheet or the case diary and the same can be taken only on the basis of evidence adduced before it during trial of the case. 16. 16. Learned counsel for the parties do not dispute that the impugned order taking cognizance dated 6-9-1996 was passed on the basis of materials available in the charge-sheet and not on the basis of evidence adduced before the trial Court. In these circumstances, the present case is fully covered by the judgment of the Hon'ble Supreme Court in the case of Lok Ram v. Nihal Singh (2006 Cri LJ 2366) (supra) and the impugned order passed by the trial Court is liable to be set aside. 17. Consequently, the revision petition is allowed. The impugned orders dated 11-7-2001 and dated 6-9-1996 passed by the trial Court are set aside. 18. However, it will be open for the trial Court to pass a fresh order taking cognizance under Section 319, Cr. P.C., in case he finds any materials or evidence adduced before it by prosecution, during trial of the case to proceed against these persons. Petition allowed.