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2011 DIGILAW 1501 (RAJ)

Mahesh Kumar Soni v. Ram Swaroop

2011-07-27

MEENA V.GOMBER

body2011
JUDGMENT : 1. - The petitioner-complainant has filed this petition under Section 482 Criminal Procedure Code against the order dated 18.06.2011 passed by learned Addl. Sessions Judge No. 1, Sikar in criminal revision petition No. 127/2010 (13/2010) whereby the order dated 02.06.2010 passed by learned Judicial Magistrate. Sikar in criminal case No. 197/2008 rejecting the application filed under Section 319 Criminal Procedure Code for taking cognizance against the accused was upheld.Heard on admission. 2. Brief facts relevant for the purpose of disposal of this petition are that the petitioner lodged an FIR hearing No. 414/08 against seven named persons for offence under Sees. 143, 323, 341 and 382 Indian Penal Code at P.S. Raghunathgarh. Distt. Sikar. The police after investigation of the case submitted charge- sheet against five persons and left two named respondents i.e. Ram Swaroop and Ashok Kumar. 3. The trial commenced against five persons and six witnesses were examined. It is thereafter that an application under Section 319 Criminal Procedure Code seeking cognizance against the respondent Nos. 1 & 2 was filed. 4. The learned trial court. vide order dated 02.06.2010, dismissed the application on the ground that there was no direct, clear and cogent evidence to proceed further against respondent Nos. 1 & 2 and that there were material contradictions and improvement in the statements of prosecution witnesses given before the police and later on in the Court. 5. Placing reliance on the Hon'ble Apex Court's judgment in the matter of Micheal Macado v. CBI, 2000 Cr.L.R. (SC) 265. the learned Magistrate concluded that since there was no direct evidence, therefore, there was no ground to proceed against respondent Nos. 1 & 2 under Section 319 Criminal Procedure Code. 6. As against this, the petitioner filed a revision petition and the learned revisional court passed a detailed order discussing the entire evidence and upheld the order of the Magistrate. 7. I have gone through the case law cited by the petitioner and also relied upon by the learned Trial Court. 8. 6. As against this, the petitioner filed a revision petition and the learned revisional court passed a detailed order discussing the entire evidence and upheld the order of the Magistrate. 7. I have gone through the case law cited by the petitioner and also relied upon by the learned Trial Court. 8. The provision of Section 319 Criminal Procedure Code gives power to the court to proceed against other persons appearing to be guilty of offence during the course of trial or inquiry of an offence, if 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. The primary object of Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. 9. The common thread in most matters where the use of discretion is in issue is that in the exercise of such discretion in each case has to be considered on its own set of facts and circumstances. In matters relating to invocation of powers under Section 319, the court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Criminal Procedure Code entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial. the Trial Court has to exercise such discretion with great care and perspicacity. The Hon'ble Apex Court has expressed its views in majority of decisions on the point that power under Section 319 Criminal Procedure Code is to be invoked not as a matter of course but in circumstances where the invocation of such power is imperative to meet the ends of justice. The Hon'ble Apex court in the case of Brindaban Das & Ors. v. State of West Bengal, reported in : 2009 (2) RLW 1727 (SC) held in para Nos. 19 & 20 as under : "19. The Hon'ble Apex court in the case of Brindaban Das & Ors. v. State of West Bengal, reported in : 2009 (2) RLW 1727 (SC) held in para Nos. 19 & 20 as under : "19. The fulcrum on which the invocation of Section 319 Criminal Procedure Code rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned. 20. In the instant case on the quality of the evidence adduced by the prosecution as far as the appellants are concerned, it is difficult to hold with any amount of certainty that the same would in all probability secure a conviction against the appellants. The evidence which seeks to connect the appellants with the commission of the offence are hearsay in nature. Section 319 Criminal Procedure Code contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but is sufficient for the purpose of convicting the person to whom summons is issued. The law in this regard was explained in Ram Kishan Rastogi's case (supra) and as pointed out by Mr. Ghosh, consistently followed thereafter, except for the note of discord struck in Rajender Singh's case (supra). It is only logical that there must he substantive evidence against a person in order to summon him for trial, although, he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction." 10. In view of principle of, law laid down by Hon'ble Apex court. the evidence of the witnesses recording during the trial has rightly been not taken to be sufficient for proceeding further against the respondents. 11. In the facts & circumstances of the case, I do not find any error in the said judgment of trial court. Accordingly this petition being devoid of merit deserves to be dismissed and is hereby, dismissed.Stay petition also stands dismissed.Petition dismissed. *******