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2013 DIGILAW 1726 (RAJ)

Kamlesh v. State of Raj.

2013-09-25

ATUL KUMAR JAIN

body2013
JUDGMENT Hon'ble JAIN, J.—This criminal revision petition had been filed by accused Kamlesh S/o Hanuman Prasad and his sister Kusum daughter of Hanuman Prasad against the order dated 26.9.2011 which was passed in Sessions Case Nl.59/2011 (State vs. Hanuman Prasad etc.) by Sessions Judge, Pali whereby application of complainant Shyam Singh Rajput, Advocate filed under Section 319, Cr.P.C. was accepted by that court and both the accused persons were called to face the trial along with other accused-persons who were already facing trial under Section 307 IPC etc. 2. At the stage of admission, final arguments on merits had been heard by me in this case by consent of both the parties. 3. It is an admitted position that in the trial, nineteen prosecution witnesses have been already been examined and then after six witnesses on behalf of the defence have also been examined in the trial Court. The case is at the fag end and the trial Court has fixed the file for final arguments. 4. Name of Smt. Kusum has not been mentioned in the FIR as well as in the statement recorded under Section 161 Cr.P.C. of complainant Shyam Singh, Advocate, so on that count alone, Smt. Kusum is entitled to get an order in her favour in this matter from this Court. So far as another accused Kamlesh is concerned, the trial Court had taken cognizance against him after examination of seventeen witnesses. In my opinion, at that belated stage, cognizance should not have been taken by the trial Court because cognizance at this belated stage means de novo trial of other three accused persons who are facing trial since last about seven years. This fact also cannot be overlooked if the order taking cognizance against Kamlesh S/o Hanuman Prasad is upheld by this Court at this stage, then all the nineteen witnesses of the prosecution and all the six witnesses of defence will have to be called again for their re-examination. This de novo trial will frustrate the whole cause of justice in the case in the trial Court. 5. The learned Advocate for the accused petitioners has taken support from the following rulings: (1) Michael Machado & Anr. vs. CBI and Anr., AIR 2000 SC 1127 (2) Geeta Devi Smt. & Anr. vs. State & Anr., 2006(1) Cr.L.R. (Raj.) 124. This de novo trial will frustrate the whole cause of justice in the case in the trial Court. 5. The learned Advocate for the accused petitioners has taken support from the following rulings: (1) Michael Machado & Anr. vs. CBI and Anr., AIR 2000 SC 1127 (2) Geeta Devi Smt. & Anr. vs. State & Anr., 2006(1) Cr.L.R. (Raj.) 124. On the other hand, the complainant relies upon the following rulings: (1) Lok Ram vs. Nihal Singh and Anr. (2006) 10 SCC 192 = RLW 2006(3) SC 2126. I have gone through the aforesaid rulings. I have perused the papers submitted by the parties in this case. I have perused the statements of all the witnesses also in this case. 6. In Michael Machado's case (supra) it has been held that suspicion alone will not be sufficient to hold that there is reasonable prospects of conviction of the appellant of the offence allegedly committed by him. It was hld by the Hon'ble Supreme Court in this case that unless the court is hopeful that there is reasonable prospects of the case as against a newly arrayed accused ending in conviction of the offence concerned, they would say that the court should refrain from adopting such a course of action. It was also held in this case that power under Section 319, Cr.P.C. to take cognizance against a person who was not charge-sheeted by the police, 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 persons against whom action has not been taken by the police. It was not held in this case that the proceedings in respect of newly added person will have to be commenced afresh and the witnesses will have to be re-examined and the whole proceedings will have to be re-commenced from the beginning of the trial so if the witnesses already examined are in quite large number then the court must seriously consider whether the objects sought to be achieved by exercise under Section 319, Cr.P.C. is worth wasting the whole labour already undertaken. 7. 7. In Lal Suraj vs. State of Jharkhand, 2009 Cr.L.R. (SC) 1, it was held that charge may be framed on the basis of strong suspicion but a person cannot be summoned under Section 319, Cr.P.C. only on the basis of strong suspicion and something more is required if the Court wants to take cognizance under Section 319, Cr.P.C. 8. In Kailash vs. State of Rajasthan, 2008-08 (Suppl.) Cr.L.R. (SC) 539 and in Municipal Corporation, New Delhi vs. Ram Krishna Rohtagi, (1983) 1 SCC 1 , it was held that before taking cognizance under Section 319, Cr.P.C. the court must arrive at the satisfaction of there existing of possibility that the accused so summoned in all likelihood would be convicted. 9. In the present case, about twenty five witnesses have already been examined by both the parties. The complainant had been sleeping for his rights till late. Had he been alert and had he filed an application under Section 319, Cr.P.C. soon after the examination of the complainant Shyam Singh then the possibility could have been there that the Court would have taken cognizance against Kamlesh but at this late stage taking cognizance against accused-petitioner Kamlesh under any sections of the Indian Penal Code will be a wastage of time and labour of the court and it will cause serious prejudice to three other accused-persons and twenty five witnesses who have already been examined by the trial Court. 10. In the circumstances, no case is made out for taking cognizance under Section 319, Cr.P.C. against the accused-petitioners Kamlesh S/o Hanuman Prasad as well as against Smt. Kusum. In the circumstances of the case, the impugned order dated 26.9.2011 passed by Sessions Judge, Pali in Sessions Case No.59/2011 does not appear to be justified at all which is hereby quashed. It is also pertinent to mention here that in the impugned order, the trial court had taken cognizance under Sections 319, Cr.P.C. against two accused-persons but it had not been mentioned in the impugned order that for what offence cognizance was taken by that Court. It is also pertinent to mention here that a strong objection was taken by the complainant non-petitioner No.2 in this case that both the accused-persons had been absconding in the trial since the date when the cognizance was taken against them by the trial Court, so their petition should have been dismissed only on this ground. It is also pertinent to mention here that a strong objection was taken by the complainant non-petitioner No.2 in this case that both the accused-persons had been absconding in the trial since the date when the cognizance was taken against them by the trial Court, so their petition should have been dismissed only on this ground. Since the impugned order has not been found justified by this Court, so in this case, we are not going to decide any question raised by the complainant that should this petition have been dismissed only on the ground of abscondence of the accused-petitioners in the trial Court. 11. Hence the revision petition filed by the petitioners is accepted as indicated above. Stay petition also stands disposed of. A copy of this order be sent to the trial Court immediately and the trial Court is hereby ordered to decide this case which has become six years old by the earliest.