JUDGMENT 1. Both the criminal revision petitions arise of common order as also common questions of facts, hence same are being decided by this common order. 2. By filing revision petition No.814/04 the accused petitioners namely; Jagdish Lodha, Bhagchand Lodha and Janki Lal have challenged the order elated 26.8.2004 passed by Addl. Sessions Judge, Kekri District Ajmer (for short 'the trial Court') in Sessions Case No.3/2004, by which it took cognizance against the accused petitioners for the offence under sections 147, 148, 149, 302, 307, 323 and 120B Indian Penal Code and allowed the application of the prosecution moved under section 319 Cr.P.C and issued warrant of arrest for securing presence of accused petitioners. 3. By filing another revision petition bearing SB Criminal Revision Pet. 1082/2004, petitioner Smt. Sharda Tiwari , who is mother of deceased Pradeep Tiwari has challenged the order dated 26.8.2004 passed by Addl. Sessions Judge, Kekri District Ajmer (for short 'the trial Court') by which application filed under section 319 Criminal Procedure Code has been rejected against the non-petitioner No.2. 4. Brief facts of the case are that complainant Shyam Lal (PW2) submitted a written report at Police Station Kekri District Ajmer on 18.9.2003 at 9:00 PM showing the date of incident as on 18.9.2003 at 7.15 PM against one Rajpal and three other accused persons to this effect that today he alongwith one Pradeep Tiwari went to see the mine which is situated at Dekhedi. When they were looking after the mine, Rajpal s/o Jagdish Lodha who is son of neighbour of Pradeep Tiwari, was keeping watch on them. Alongwith Pradeep, Ramnarayan Lodha and Omprakash, several other persons were also working with them. After. completion of work they left the mine and proceeded to Kekri on a calibre motor-cycle. Motor-cycle was being driven by Mr. Pradeep and he was sitting on his back. When they reached Nai Kheda at about 7.15 PM one jeep came from infront side in a high speed and with intention to kill them, hit them after taking it on wrong side. Both of them fell down from the motor-cycle. 3-4 persons gotdown from the jeep and made a noise of 'maro-maro'. After hearing this noise they tried to run away then these persons cought hold of Mr. Pradeep and they tried to give beating to him by sharp-edged weapon. Both of them fell down from the motor-cycle. 3-4 persons gotdown from the jeep and made a noise of 'maro-maro'. After hearing this noise they tried to run away then these persons cought hold of Mr. Pradeep and they tried to give beating to him by sharp-edged weapon. He tried to identify these persons but he failed to identify because these persons had worn white colour clothes. Out of these persons one from the face was looking as Rajpal Lodha and remaining accused persons he could not identify because of fear. These persons rescued to him from the jeep but they failed. In front of mirror of the jeep S.K.M. was written. Thereafter, he made a telephonic call to Kuldeep Tiwari and waited on the road. After some time Kuldeep came on motor-cycle with one Mahaveer Prasad in a jeep. In jeep Hanuman Kumawat came at the back of Kuldeep. When they picked up Pradeep Tiwari and found Pradeep Tiwari as dead. A dispute regarding mine was already going on for a long time between Rajpal Lodha and Pradeep and cases are also going on between same. Certain other facts were also mentioned. 5. On the basis of this written report, the police registered an FIR No.330/2002 for the offence under sections 302, 323 read with section 34 Indian Penal Code against accused persons. 6. The police after investigation submitted challenge against accused Rajpal, Chhotu Lal, Pannalal and Bhanwar Lal for the offence under Sections 302, 307, 323, 34 Indian Penal Code in the Court of Addl. Chief Judicial Magistrate, Kekri, Rajpal for the offence under Sections 302, 307/34 and 323/34 Indian Penal Code and against accused Chottu Lal, Panna Lai and Bhanwar Lal for the offence under Sections 302/34, 307/34, 323/34 Indian Penal Code. 7. Before moving an application under Section 319 Criminal Procedure Code by the Addl. Public Prosecutor from the side of prosecution, statements of PW1 Dr. Rajendra Kumar Morya, PW2 Shyam Lal, PW3 Mahaveer Jain, PW4 Hanuman, PW5 Ramgopal Pathak, PW6 Dr. J.K. Jain, PW7 Salim and PW8 Om Prakash were recorded. 8. Immediately after recording statements of PW2 to PW7, Addl. Public Prosecutor moved an application under Section 319 Criminal Procedure Code stating therein that in this case Bhupendra Singh Shaktawat, Jagdish Lodha, Janki Lal Lodha and Bhag Chand Lodha are involved, thus, he prayed therein to take cognizance against him. 9. 8. Immediately after recording statements of PW2 to PW7, Addl. Public Prosecutor moved an application under Section 319 Criminal Procedure Code stating therein that in this case Bhupendra Singh Shaktawat, Jagdish Lodha, Janki Lal Lodha and Bhag Chand Lodha are involved, thus, he prayed therein to take cognizance against him. 9. The trial Court after hearing both the parties partly allowed the application moved by Addl. Public Prosecutor under Section 319 Criminal Procedure Code and took cognizance under Sections 147, 148, 149, 302, 307, 323 and 120B Indian Penal Code against accused Jagdish Lodha, Bhagchand Lodha and Janki Lal and dismissed the application in regard to Bhupendra Singh Pradhan to the extent of taking cognizance vide order dated 26.8.2004. 10. The accused petitioners (in Rev. No.814/2004) and petitioner Smt. Sharda Tiwari (in Rev. No.1082/2004) being aggrieved with the order dated 26.8.2004, have preferred two different petitions before this Court. 11. Mr. A.K. Gupta, counsel for accused petitioners namely; Jagdish Lodha, Bhagchand Lodha and Janki Lal submit that none of the accused- petitioners were named in the FIR. As per the FIR the complainant PW2 Shyam Lal is sole eye-witness of the occurrence. Before alleged incident no conspiracy was made by any of the accused petitioners. Thus, the trial court without appreciating the evidence of prosecution as indicated above, has Exceeded its jurisdiction and committed an illegality in taking cognizance against the accused petitioners. The trial Court has not properly considered the FIR, which is a vital and important document in this case. 12. No offence is made out against the accused petitioners under Section 120B Indian Penal Code because before lodging of the FIR, Kuldeep Tiwari, Mahaveer Prasad and Hanuman were present at that time but no such fact was disclosed by any person to show that any of the accused petitioners gave any threatening to Pradeep Tiwari in their presence. 13. Before passing order of cognizance against the accused petitioners, trial court has not gone through the statements of PW3 Mahaveer, PW4 Hanuman, PW5 Ram Gopal Pathak, PW7 Salim and PW8 Om Prakash. Thus, the trial court has committed an illegality and irregularity in passing the order impugned dated 26.8.2004 against accused petitioners Jagdish Lodha, Bhagchand Lodha and Janki Lal. 14. In support of his case Mr. Thus, the trial court has committed an illegality and irregularity in passing the order impugned dated 26.8.2004 against accused petitioners Jagdish Lodha, Bhagchand Lodha and Janki Lal. 14. In support of his case Mr. Gupta has placed reliance upon following Judgments : (1) Kailash V. State of Rajasthan & Anr., AIR 2008 SC 1564 ; (2) Municipal Corporation of Delhi Vs. Ram Kishore Rohtagi Others., AIR 1983 SC 67 (1) ; (3) Michael Machado & Anr. Vs. Central Bureau of Investigation Anr., AIR 2000 SC 1127 ; (4) Niranjan Surana & Anr. Vs. Smt. Salma & Ors., 2003 (2) Cr. L. R. (Raj.) 1416 ; (5) Tara Chand & Anr. Vs. State of Rajasthan., 2004 (2) RCC 807 ; (6) Kailash Dwivedi Vs. State of M.P. and another., (2005) 11 SCC 182 ; (7) Krishnapa Vs. State of Karnataka., AIR 2004 SC 4928 ; (8) Kavuluri Vivekananda Reddy & Another Vs. State of A.P. and another., (2006) 2 SCC (Cri.) 324 ; (9) Pratap Singh & Ors. Vs. State of Raj. & Ors., 2003 (2) RCC 786 ; (10) Mohd. Shafi Vs. Mohd. Rafiq & Anr., JT 2007 (5) SC 562 ; (11) Palanisamy Gounder & Anr. Vs. State represented by Inspector of Police., (2005) 12 SCC 327 ; (12) Guriya @ Tabassum Tauquir & Ors. Vs. State of Bihar and Anr., AIR 2008 SC 95 ; 15. Per contra Mr. B.N. Sandhu, Public Prosecutor assisted by Mr. Ravi Kasliwal, appearing for the complainant submits vehemently controverted the afore-mentioned submissions. 16. In criminal revision No.1082/2004, Mr. Kasliwal submits that the trial court while passing the order impugned dated 26.8.2004 in favour of non-petitioner No.2 has not properly considered the statements of PW3 Mahaveer Jain, PW4 Hanuman, PW5 Ramgopal Pathak and PW8 Om Prakash. Non-petitioner No.2 was main conspirator in murder of deceased Pradeep Tiwari. There is sufficient evidence against the non-petitioner No.2 for taking cognizance. Thus, trial Court has committed an illegality and irregularity in passing the order impugned. 17. Mr. Kasliwal, has placed reliance upon following Judgments:- (13) Rajendra Singh Vs. State of U.P. & Anr., (2007) 7 SCC 378 ; (14) Lok Ram Vs. Nihal Singh & Anr., 2006 Cr.L.R. SC 414 ; (15) Samalia & Ors. Vs. State of Rajasthan., 2007 WLC (Raj.) UC 763 ; (16) Mohd. Umar Bhai Vs. State of Rajasthan., 2008 WLC (Raj.) 39 ; and (17) Raj Kumar Vs. State of U.P. & Anr., (2007) 7 SCC 378 ; (14) Lok Ram Vs. Nihal Singh & Anr., 2006 Cr.L.R. SC 414 ; (15) Samalia & Ors. Vs. State of Rajasthan., 2007 WLC (Raj.) UC 763 ; (16) Mohd. Umar Bhai Vs. State of Rajasthan., 2008 WLC (Raj.) 39 ; and (17) Raj Kumar Vs. State Ors., 2008 WLC (Raj.) UC 752. 18. Much reliance has been placed by Mr. Kasliwal of para Nos. 6 to 11 (if the case of Lok Ram Vs. Nihal Singh & Ors. (supra), which are reproduced hereinbelow : "6. In Michael Machado and Anr. Vs. Central Bureau of Investigation and Anr., 2000 (3) SCC 262 construing the words "the Court may proceed against such person" in-Section 319 of the Code, this Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a consepctus 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, while examining an application under Section 319 of the Code, "has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. 7. The above principles were highlighted in Krishnappa Vs. State of Karnataka, 2004 (7) SCC 792 . 8. The scope and ambit of Section 319 of the Code have been elucidated in several decisions of this Court. In Joginder Singh and another Vs. State of Punjab and another, AIR 1979 SC 339 , it was observed : "6. 7. The above principles were highlighted in Krishnappa Vs. State of Karnataka, 2004 (7) SCC 792 . 8. The scope and ambit of Section 319 of the Code have been elucidated in several decisions of this Court. In Joginder Singh and another Vs. State of Punjab and another, AIR 1979 SC 339 , it was observed : "6. A plain reading of Section 319(1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried alongwith the other accused." It was further observed in paragraph 9 : "9. As regards the contention that the phrase 'any person not being the accused' occurred in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No.2 of the charge sheet, the contention has merely to be started to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provisions like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression." 9. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Ors., 1983 (1) SCC 2 , after referring to the decision in Joginder Singh's case (supra) it was observed : "19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them alongwith the other accused. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them alongwith the other accused. But, we would hasten to add that this is really an extra ordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the Court from exercising its discretion of it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it. 10. On the 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 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. 11. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and as such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary 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 that evidence of witnesses given in Court. Undisputedly, it is an extraordinary 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 that 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 taken so far as newly added accused is concerned." 19. He has further drawn attention of the Court to the provisions of Section 319 Criminal Procedure Code which runs 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. (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." 20. I have heard learned counsel for respective parties and carefully scanned the entire material available on record including the judgments cited by both the counsel appearing for the respective parties. 21. The judgments cited by the counsel for the accused petitioners are not at all relevant to the facts of the present case. 22. I have heard learned counsel for respective parties and carefully scanned the entire material available on record including the judgments cited by both the counsel appearing for the respective parties. 21. The judgments cited by the counsel for the accused petitioners are not at all relevant to the facts of the present case. 22. A bare perusal of the facts of the case, statements of prosecution witnesses recorded by the trial Court would reveal that trial Court has rightly passed the order dated 26.8.2004 because after recording statements of prosecution witnesses the Addl. Public Prosecutor moved an application under Section 319 Criminal Procedure Code for taking cognizance against them except Bhupendra Singh Pradan for the offence under Sections 147, 148, 149, 302, 307, 323, 120B Indian Penal Code. Statement of PW8 Om Prakash clearly reveals that Jagdish, Bhagchand, Rajpal, Jankilal along with 3-4 persons were giving beating to Pradeep Tiwari (since deceased uninterrputedly). The evidence of PW3 Mahaveer, PW4 Hanuman, PW5 Ram Gopal, PW7 Salim and PW8,.Om Prakash dearly reveal that Jagdish, Bhagchand, Rajpal, Jankilal along-with 3-4 persons gave threatening of killing to Pradeep Tiwari (since deceased) before one day of the date of alleged incident. Thus, no interference is required to be made in the order dated 26.8.2004 passed by Addl. Sessions Judge, Kekri (Ajmer). 23. In the result, both the criminal revision petitions i.e. petition No.814/2004 (filed by accused petitioners namely; Jagdish Lodha, Bhagchand Lodha and Janki Lal) and 1082/2004 (filed by petitioner Smt. Sharda Tiwari) are devoid of merits and stand rejected. The order dated 26.8.2004 passed by Addl. Sessions Judge, Kekri is maintained. The trial Court is directed to proceed in the matter in accordance with law. 24. The Deputy Registrar (judicial) is directed to send back record of the case forthwith for expeditious trial.Appeal dismissed. *******