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2011 DIGILAW 1725 (RAJ)

Gopi Ram v. State

2011-08-16

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—In this revision petition filed under Section 397 read with Section 401 Cr.P.C., the petitioner has prayed for quashing the order dated 25.9.99 passed by Addl. District and Sessions Judge, Raisinghnagar in Criminal Case No. 43/1996 whereby cognizance was taken against the petitioner on the basis of charge-sheet before commencement of trial. 2. According to the facts of the case, in FIR No. 1/1996 registered at Police Station Srivijaynagar under Sections 147, 148, 149, 307, 392 and 120-B I.P.C. after investigation, challan was filed against accused Uda Ram, Dilip Kumar, Shiv Kumar and Badri under Sections 147, 148, 149, 307, 395 and 120-B I.P.C. but investigation against the petitioner was kept pending under Section 173(8) Cr.P.C. 3. After filing challan, for the reason that offence was exclusively triable by Sessions Court, therefore, learned Magistrate committed the case to the Court of Addl. District and Sessions Judge, Raisinghnagar and after committal of the case, charges were framed against accused persons Uda Ram, Dilip Kumar, Shiv Kumar and Badri. During pendency of trial against above mentioned four accused persons, the complainant Arjun Chand filed an application on 21.1.1997 for taking cognizance against the petitioner also before recording prosecution evidence. Learned trial Court took cognizance against the petitioner on the basis of the evidence upon which challan was filed against co-accused while keeping investigation pending against the petitioner under Section 173(8) Cr.P.C. 4. In this revision petition, the petitioner has challenged the order dated 25.9.1999 whereby cognizance was taken against him upon application filed by the complainant. 5. The main ground of petitioner is that once investigation was kept pending under Section 173(8) Cr.P.C. for ascertaining the involvement of petitioner in the case, then, obviously learned trial Judge was not required to exercise its power to take cognizance against the petitioner upon the application filed by the complainant because the so called application was in the shape of protest petition, therefore, it is not permissible in law for the trial Court to take cognizance before the stage of Section 319 Cr.P.C. comes. 6. On 5.11.99, this revision petition was listed in the Court and Coordinate Bench of this Court passed an order for summoning the record of the case while issuing notice. 7. In pursuance of the aforesaid order, record was summoned and the matter was listed in the Court on 25.7.2000. 6. On 5.11.99, this revision petition was listed in the Court and Coordinate Bench of this Court passed an order for summoning the record of the case while issuing notice. 7. In pursuance of the aforesaid order, record was summoned and the matter was listed in the Court on 25.7.2000. On that day, after hearing both the parties, this revision petition was admitted and following order was passed on that day: "Heard. Admit. Notice need not be issued as the respondent is already represented. Effect and operation of the order dated 25.9.1999 is stayed. Record of the trial Court be sent forth-with with the direction that trial Court may proceed against accused persons against whom it has already proceeded. It is made clear that if any case is made out, the Court will be free to take steps under Section 319 Cr.P.C." 8. Upon perusal of the aforesaid order, it is abundantly clear that a liberty was given to the prosecution to take steps under Section 319 Cr.P.C. after recording prosecution evidence in the trial. 9. Today, this matter is listed in the Court and upon ascertaining the status of the original case No. 43/1996, it is informed that case No. 43/1996 (19/2002) has already been decided vide judgment dated 20.9.2002 by the trial Court, meaning thereby, the liberty given by this Court vide order dated 25.7.2000 to take steps under Section 319 Cr.P.C. was not availed by the prosecution. Therefore, it is obvious that no material evidence came on record in the trial for taking cognizance against the petitioner for which he was to be tried along with main accused. 10. In my opinion, when investigation against the petitioner was kept pending under Section 173(8) Cr.P.C., then, there was no liberty left with the trial Court to take cognizance on the basis of the charge-sheet filed against other co-accused persons. 11. For the reason that main case has already been decided by the trial Court vide judgment dated 20.9.2002 and all other accused persons have been acquitted from the charges leveled against them, I am of the opinion that cognizance taken against the petitioner by the trial Court upon the application filed by the complainant is not sustainable in eye of law. 12. Accordingly, this revision petition is allowed. The impugned order dated 25.9.1999 by Addl. 12. Accordingly, this revision petition is allowed. The impugned order dated 25.9.1999 by Addl. District and Sessions Judge, Raisinghnagar in Criminal Case No. 43/1996 is hereby quashed and set aside.