Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 120 (JK)

Rakesh Kumari v. Balwan Singh

2010-03-08

J.P.SINGH

body2010
1. One Kundan Lal was killed on March 08, 2006 near Ban Ganga, Katra, Jammu. Dis-satisfied with the arrest of only two persons as against seven stated to have been nominated by the petitioner, his mother, as the assailants, she approached this Court by her Writ Petition seeking investigation into her sons Murder by the Central Bureau of Investigation or any other independent Investigating Agency. 2. The judgment delivered by the Writ Court was modified by a Letters Patent Bench of this Court directing re-investigation into the petitioners sons murder by the Crime Branch of the State Government. The re-investigation carried out, however, reiterated involvement of only two persons. 3. During the currency of the trial before learned Sessions Judge, Reasi, the prosecution moved an application seeking impleadment of Balwan Singh, Sohan Singh, Suram Singh, Vijay Singh and Narinder Singh, who had been named as assailants by the petitioner Rakesh Kumari and her daughter Neeru Devi in their deposition in the Court. 4. Rejection of the States Application by the Trial Court has landed the petitioner again in this Court, where through this Criminal Revision, she seeks setting aside of the Trial Courts order of January 01, 2009. 5. I have considered the submissions of learned counsel for the parties and gone through the records. 6. Learned Sessions Judge has rejected the States plea for impleadment of persons other than those put up for Trial, on two grounds viz (1) The States request was pre-mature and (2) the statements of the petitioner and her daughter Neeru Devi, were not sufficient enough to justify impleadment of persons other than those put up for trial in the case. 7. While holding that the statements of the petitioner and her daughter Neeru Devi were not sufficient to justify impleadment, the trial Court has referred to various aspects of the case to support its conclusion. 7. While holding that the statements of the petitioner and her daughter Neeru Devi were not sufficient to justify impleadment, the trial Court has referred to various aspects of the case to support its conclusion. Statement made by the petitioner, which was sought to be supported by her daughters statement has been found prima facie insufficient to justify impleadment in view of the shortcomings noticed in the statements including those of petitioners admission of nominating only two/three persons as assailants, when she had informed the Superintendent of Police, immediately after the occurrence, on phone, and the statement of Neeru Devi where, during her cross-examination she had hinted at her reaching the place of occurrence along with her mother when Kundan Lals dead body was lying near the wash room at the place of occurrence. 8. Before dealing with the issue projected by Ms. Seema Sharma at the hearing of this Petition to urge that the Trial Court had misread and misconstrued the petitioners statement besides committing an error of law in rejecting the States prayer for impleadment, regard needs to be had to the power of the Court to implead persons other than those put up for trial in the Court as contemplated by Section 351 of the Code of Criminal Procedure, Svt. 1989. 9. It would be profitable in this respect to refer to what was held by their Lordships of Honble Supreme Court of India in Kailash v. State of Rajasthan & anr., reported as 2008 AIR SCW 1717, where dwelling on a similar provision in the Central Code of Criminal Procedure, 1973, their Lordships held as follows:- "A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are "it appears from the evidence" "any person" "has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. The key words in this Section are "it appears from the evidence" "any person" "has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the Court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands. 10. In a reported decision in Mohd. Shafi v. Mohd.Rafiq & Anr. {JT 2007 (5) SC 562}, to which one of us (Sinha,J.) was a party, this Court had observed in para 7 as under:- "Before, thus, a trial Court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the Court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the Court must arrive at its satisfaction in this behalf." 11. In the above case this Court referred to the decision reported in Municipal Corporation of Delhi v. Ram Krishan Rohtagi & ors. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the Court must arrive at its satisfaction in this behalf." 11. In the above case this Court referred to the decision reported in Municipal Corporation of Delhi v. Ram Krishan Rohtagi & ors. [(1983) 1 SCC 1] and highlighted the following remarks made in para 19 therein which are to the following effect: "19 But, we would hasten to add that this is really an extraordinary 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***.." 12. It was further stated in para 13: "It is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence." 11. In Krishnappa v. State of Karnataka [(2004) 7 SCC 792] this Court, while relying on another reported decision in Michael Machado v. Central Bureau of Investigation [(2000) 3 SCC 262] went on to hold that the power under Section 319, Cr.P.C. 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. The Court further observed: "a judicial exercise is called for, keeping in conspectus of the case, including the stage at which the trial has already proceeded with the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence***" 13. The Court further observed: "The Court, while examining an application under Section 319 Cr.P.C., has also to bear in mind that there is no compelling duty on the court to proceed against other persons. The Court further observed: "The Court, while examining an application under Section 319 Cr.P.C., has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 Cr.P.C., all relevant factors, including the one 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." 14. Petitioners counsels plea that the trial Court had misconstrued and misquoted the statements of the petitioner and her daughter is not borne out from the records. 15. The findings recorded by the Trial Court in coming to the conclusion that impleadment of persons other than those put up for trial was not warranted, too does not justify interference in view of cogent reasons given by it in support therefor and the legal position referred to hereinabove. 16. The Trial Court was required to assess whole of the prosecution case as it stood produced before the Court at the time of consideration of the States request for impleadment and not a part thereof in isolation as suggested by the petitioners learned counsel, which it has done rightly in the present case. 17. For all what has been said above, the approach adopted by the trial Court in rejecting States Application being pre-mature and leaving the issue open for its re-consideration when some other evidence was brought on records by the prosecution, does not justify interference in Revision, additionally because, the order passed by the trial Court deferring consideration of the issue till other prosecution evidence was recorded, was interlocutory and not open to Revision, in terms of Section 435 (4-A) of the Code of Criminal Procedure. 18. No ground for interference with the order impugned in the Revision Petition has, thus, been made out. 19. This Revision Petition is, accordingly, dismissed. 20. Bail Application No.86/2009 shall, accordingly, stand disposed of as infructuous.