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2016 DIGILAW 1376 (RAJ)

Tiloka Ram S/o Prabhu Ram v. State of Rajasthan

2016-09-21

GOVERDHAN BARDHAR

body2016
JUDGMENT : Goverdhan Bardhar, J. The instant revision petition has been filed by the petitioners under Section 397 read with Section 401 Cr.P.C against the order dated 22-07-2015 passed by the learned Addl. Sessions Judge, Balotra, whereby he allowed the application under Section 319 Cr.P.C filed by the respondent No. 2 and ordered to take cognizance for the offence under Sections 143 & 436 IPC against the petitioners. 2. Learned counsel for the petitioners argued that the learned trial Court while allowing the application under Section 319 Cr.P.C has not considered the fact that in this matter S.B. Cr. Misc. Petition No. 1667/2010 was decided by this Court on 01-08-2012 and the order of taking cognizance against the accused/petitioners was quashed. Counsel for the petitioners further argued that power under Section 319 Cr.P.C can be exercised only if the Court is satisfied that the accused-petitioners summoned will in all likelihood be convicted, there is no material available on record to connect with the alleged offences. It is further argued that independent witnesses Arjun Singh and Chhogaji have specifically stated in their statements that the respondent No. 2 has lodged the complaint due to animosity because the petitioner Tiloka Ram and complainant Mohabbat Singh having dispute of plot. Counsel further argued that the learned trial Court without considering the fact that this Court has already discharged the petitioners from the alleged offences but the learned trial Court merely relying upon the statements of the complainant and interested witness his nephew Ratan Singh, has taken cognizance for offences under Section 319 Cr.P.C vide order impugned dated 22.07.2015, which is not sustainable in the eye of law. 3. On the other hand, learned counsel for the respondents supports the impugned order dated 22-07-2015 passed by the learned trial Court. 4. I have heard the counsel for the parties and perused the impugned order dated 22-07-2015 passed by the learned trial court and also gone through the material available on record. 5. This Court while deciding the Criminal Misc. Petition No. 1667/2010 has quashed the order dated 07-08-2009 for taking cognizance against the accused-petitioners namely Nagu Ram, Tiloka Ram, Hari Ram, Hasta Ram and Bhopa Ram. 5. This Court while deciding the Criminal Misc. Petition No. 1667/2010 has quashed the order dated 07-08-2009 for taking cognizance against the accused-petitioners namely Nagu Ram, Tiloka Ram, Hari Ram, Hasta Ram and Bhopa Ram. In support of his contentions, learned counsel for the petitioners has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Hardeep Singh v. State of Punjab & Ors., reported in 2014 Cr.L.R (SC) 310. In the matter of Hardeep Singh (Supra) Hon'ble Apex Court in para No. 98 & 99 has observed as under:- 98. Power under Section 319 Cr.P.C is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner." 99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the Court not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilty of the accused. 6. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilty of the accused. 6. In view of above, the impugned order dated 22-07-2015 is hereby set-aside and the revision petition is allowed with the direction to the learned trial Court to decide the application under Section 319 Cr.P.C afresh in the light of judgment passed by the Hon'ble Supreme Court in case of Hardeep Singh (Supra). Revision allowed-impugned order set aside.