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2016 DIGILAW 969 (RAJ)

Rajneesh v. State of Rajasthan

2016-07-11

PRASHANT KUMAR AGARWAL

body2016
ORDER : Mr. Prashant Kumar Agarwal, J. Heard learned counsel for the parties. 2. The accused-petitioner has filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the order dated 28.5.2015 passed by the Additional Sessions Judge, Jhunjhunu in Sessions Case No.8/2014 whereby the learned trial Court exercising its power conferred upon it under Section 319 Cr.P.C. took cognizance against the petitioner for offences under Sections 341, 323, 323/34, 325, 325/34, 302 and 302/34 IPC and summoned him by way of warrant of arrest. 3. Brief relevant facts for the disposal of this petition are that FIR No.402/2013 came to be registered on 4.12.2013 at Police Station Navalgarh (District Jhunjhunu) for offences under Sections 341, 323, 323/34 IPC against petitioner and some other persons and after investigation charge-sheet for offences under Section 302, 341, 325/34 IPC was filed against one Shri Norang Ram, Nanu Devi and Shri Om Prakash but charge-sheet was not filed against petitioner. During the course of trial of the accused against whom charge-sheet was filed statements of as many as 10 prosecution witnesses were recorded. At this stage an application under Section 319 Cr.P.C. was filed on behalf of the prosecution with a prayer that from the evidence produced during trial involvement of the petitioner in the incident is made out and, therefore, cognizance may also be taken against him and he may be summoned through warrant of arrest. Reply to the application was filed by the accused who were already facing trial and the learned trial Court after hearing the parties passed the impugned order in the manner already stated. Feeling aggrieved, the petitioner is before this Court by way of this revision petition. 4. It was submitted by the learned counsel for the petitioner that from the material available on record, it is revealed that after thoroughly considering the evidence collected during investigation involvement of the petitioner was not found in any manner in the incident and, therefore, charge-sheet was not filed against him. It was further submitted that no steps were taken by the prosecution or the complainant at the stage of Section 190 Cr.P.C. for taking cognizance against the petitioner and thereafter there is no substantial change in the facts and circumstances of the case so as to exercise its jurisdiction under Section 319 Cr.P.C. by the trial Court. It was further submitted that no steps were taken by the prosecution or the complainant at the stage of Section 190 Cr.P.C. for taking cognizance against the petitioner and thereafter there is no substantial change in the facts and circumstances of the case so as to exercise its jurisdiction under Section 319 Cr.P.C. by the trial Court. It was also submitted that even from the evidence so far produced during the course of trial it cannot be said that the petitioner was involved in the incident in any manner and there is likelihood of conviction of the petitioner if he is tried for the offences for which cognizance has been taken against him. It is well settled legal position that under Section 319 Cr.P.C. a person can be summoned as an accused only when Court finds that evidence on record is such which would reasonably lead to conviction of the person sought to be summoned, but in the present case the aforesaid requirement is not fulfilled at all. It was also contended that if by any reason the Court does not deem it proper to interfere in the impugned order, then an order converting the arrest warrant issued by the Court below into bailable warrant may be passed as it is well settled legal position that attendance of an accused before the Court may be secured at the initial stage by summons or at the most bailable warrant and not directly by a warrant of arrest. 5. In support of his submissions, learned counsel for the petitioner relied upon the cases of Vikas Kumar v. State of Rajasthan & Anr. (S.B. Criminal Misc.Petition No.3183/2013) decided on 02.09.2014, Rajol & ors. v. State of U.P. & Anr. reported in 2010 (5) ADJ 628 , Brindaban Das & Ors. v. State of West Bengal reported in 2990 (3) SCC 329, Michael Machado & Anr. v. CBI & Anr. reported in 2000 (3) SCC 262 , Mohd.Shafi v. Mohd.Rafiq & Anr. reported in 2007 (14) SCC 544, Krishnappa v. State of Karnataka reported in 2004 (7) SCC 792 , Suresh Kumar v. State of Rajasthan & Anr. reported in 2011 (4) RLW 3081 and Sarabjit Singh & Anr. v. State of Punjab & Anr. reported in 2009 (8) JT 73 . 6. reported in 2007 (14) SCC 544, Krishnappa v. State of Karnataka reported in 2004 (7) SCC 792 , Suresh Kumar v. State of Rajasthan & Anr. reported in 2011 (4) RLW 3081 and Sarabjit Singh & Anr. v. State of Punjab & Anr. reported in 2009 (8) JT 73 . 6. On the other hand, learned Public Prosecutor vehemently submitted that not only in the statements of the eye-witnesses recorded during trial but also from the evidence of other witnesses it is clear that present petitioner was also involved in the incident and his specific role has also been made out from the evidence so far recorded. It was also submitted that learned Court below has rightly exercised its discretion in respect of the petitioner and the statements of prosecution witnesses so far recorded during trial cannot be doubted at this stage of the proceedings merely by the reason that they happens to be family members of the deceased more particularly in view of the fact that one of the witness sustained injuries in the same incident. It was further submitted that at the time of consideration under Section 319 Cr.P.C. detailed appreciation and evaluation of the evidence is not required. So far as summoning of the petitioner by way of arrest warrant is concerned, it was submitted that in a case in which an innocent person has been murdered, the Court below has deemed it proper to summon the petitioner by arrest warrant, interference by this Court is not warranted. 7. On consideration of submissions made on behalf of the respective parties and the material made available on record including the evidence collected during investigation in the form of copy of the charge-sheet and the statements of prosecution witnesses so far recorded during the course of trial and more particularly looking to the reasons recorded by the trial Court in support of the impugned order, I do not find any illegality, perversity or impropriety in the same requiring interference by this Court. Perusal of impugned order reveals that it has been passed after considering the evidence produced by the prosecution during trial and the role attributed to the petitioner in the incident. Perusal of impugned order reveals that it has been passed after considering the evidence produced by the prosecution during trial and the role attributed to the petitioner in the incident. So far as this submission of the learned counsel for the petitioner that at the first instance warrant of arrest should not have been issued for the attendance of the petitioner before the trial Court is concerned, Hon'ble Supreme Court even in the case of Inder Mohan Goswamy v. State of Uttaranchal reported in AIR 2008 SC 251 has held that there can not be any straight jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. Thus, if a person is accused of an offence of a heinous nature, the Court may at the first instance also issue warrant of arrest for his attendance. In the present case, apart from others cognizance for offence under Section 302 and 302/34 IPC has also been taken and in such circumstances, it cannot be said that the trial Court has wrongly exercised its discretion more particularly in view of the fact that despite the impugned order was passed on 28.5.2015, the petitioner has failed to appear before the trial Court. Consequently, the revision petition being devoid of any substance is, hereby, dismissed. The stay application also stands dismissed.