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2018 DIGILAW 162 (RAJ)

Meera v. State of Rajasthan

2018-01-12

SANDEEP MEHTA

body2018
JUDGMENT Sandeep Mehta, J —The instant revision is directed against the order dated 2.7.2016 passed by the learned Additional Sessions Judge No.4, Bikaner in Sessions Case No.57/2016 whereby, the learned trial Judge accepted the application filed by the respondent No.2 complainant under Section 193 I.P.C. and directed summoning of the petitioners as additional accused in the case to face trial with the charge-sheeted accused. 2. Facts in brief are that the respondent No.2 filed an F.I.R. at the P.S. Bajju on 28.4.2014 alleging inter-alia that the petitioners alongwith the charge-sheeted accused Keshara Ram, Dharampal, Shrawan, Khetpal, Meera and Rameshwari assaulted the first informant's uncle's son Bhinya Ram, Arjun Ram and aunt Meera while they were working in their fields, with dangerous weapons and caused them innumerable injuries. The Investigating Officer, after concluding investigation, filed a charge-sheet only against Keshara Ram, Dharampal, Shrawan and Khetpal and the present petitioners who were named in the F.I.R. were left out from the array of accused. The Investigating Officer filed a charge-sheet against the above named four male assailants in the court of the learned Judicial Magistrate, Kolayat on 26.11.2014 and on the very same day, the trial court took cognizance against those accused persons for the offence under Section 307, 341, 323, 324, 325 and 326 read with 34 I.P.C. and committed the case to the court of the Sessions Judge concerned for trial. Admittedly, the complainant had not been intimated of the partial charge-sheet and thus, no sooner the case was received in the court of the learned Additional Sessions Judge, he moved an application under Section 193 Cr.P.C. in that court with a prayer for summoning the petitioners whosenames had been left out by the Police from the list of charge-sheeted accused. The accused petitioners have approached this Court by way of the instant revision to challenge the order passed by the learned Additional Sessions Judge, while exercising powers under Section 193 Cr.P.C. 3. Shri R.S.Choudhary, learned counsel representing the petitioners vehemently urged that the implication of these two ladies as additional accused in the case, is absolutely unwarranted and unjustified. The Investigating Officer, assigned detailed and cogent reasons for excluding the names of the petitioners from the array of accused. Shri R.S.Choudhary, learned counsel representing the petitioners vehemently urged that the implication of these two ladies as additional accused in the case, is absolutely unwarranted and unjustified. The Investigating Officer, assigned detailed and cogent reasons for excluding the names of the petitioners from the array of accused. The learned Magistrate had taken active cognizance of the offences against the charge-sheeted accused and as such, Shri Choudhary by referring to this Court's judgment in the case of Shodan Singh & Ors. Vs. State of Rajasthan , (2017) 2 RajLW 1565 (Raj.) urged that the impugned order is bad in the eye of law and cannot be sustained. 4. Per contra, Shri Saini learned counsel representing the respondent No.2 complainant vehemently opposed the submissions advanced by Shri Choudhary and urged that on a perusal of the Magistrate's order taking cognizance, it is apparent that there was no active application of mind by the learned Magistrate while taking cognizance because the said order is a formal order of cognizance on the charge-sheet filed by the Police. 5. He further urged that the complainant had not been informed of the partial charge-sheet and thus, there was no occasion for the learned Magistrate to have actively applied mind to the Police papers so as to assess whether the left out accused should be proceeded with or not. Thus, as per him, the concept of active/passive cognizance as laid down by coordinate Bench of this Court in the case of Shodan Singh would not come to the aid of the petitioners. Rather, as per him, it is a case wherein, the Police unjustifiedly left out the named persons from the array of accused while filing charge-sheet which was submitted without intimating the complainant. The complainant, on coming to know of the partial charge-sheet and exclusion of the names of the petitioners from the array of accused, filed an application for summoning the petitioners as additional accused before the 6. Learned Additional Sessions Judge, who exercised powers conferred upon it under Section 193 Cr.P.C. in light of the decision rendered by Constitutional Bench of Hon'ble Supreme Court in the case of Dharampal Vs. State of Haryana , (1999) 4 RCR(Cri) 600 and directed summoning of the petitioners as additional accused in the case to face trial with the chargesheeted accused by a well reasoned order. He thus craved dismissal of the revision. 7. State of Haryana , (1999) 4 RCR(Cri) 600 and directed summoning of the petitioners as additional accused in the case to face trial with the chargesheeted accused by a well reasoned order. He thus craved dismissal of the revision. 7. I have appreciated the arguments advanced by learned counsel for the parties and have gone through the impugned orders as well as the material placed on record. 8. Ex-Facie, this Court is of the firm opinion that the argument advanced by Shri Choudhary that the facts do not warrant summoning of the petitioners to face trial as additional accused in the case is also unworthy of acceptance for the simple reason that the first informant as well as the injured witness Bhinya Ram, Meera and Arjun have categorically stated that both the petitioners were armed with lathis and that they too jointly assaulted the injured persons with the charge-sheeted accused. The said allegation is duly corroborated from the injury reports of the three injured who were found suffering numerous blunt weapon injuries some of which are also grievous in nature. 9. The position of law as well as facts clearly goes against the plea putforth by the petitioners in this revision that they could not have been summoned to face trial as additional accused in the case. Since, the petitioners are named in the F.I.R. and the statements of the injured eye-witnesses and are assigned active participation in the assault, the learned Additional Sessions Judge, was perfectly justified in directing that they too should be summoned in the case as additional accused to face trial with those who had been charge-sheeted by the Police. 10. So far as the ratio of Shodan Singh's judgment is concerned, the same has no application to the facts of the case at hand because no active application of mind is shown in the order taking cognizance passed by the Magistrate, which is a formal order passed on a partial charge-sheet submitted by the Police. 11. Thus, there was no hindrance on the power of the committal court to invoke the procedure of Section 193 Cr.P.C. and direct summoning of the present petitioners as additional accused in the case in light of the Supreme Court decision in the case of Dharampal . 12. 11. Thus, there was no hindrance on the power of the committal court to invoke the procedure of Section 193 Cr.P.C. and direct summoning of the present petitioners as additional accused in the case in light of the Supreme Court decision in the case of Dharampal . 12. In view of the above discussion, I find no illegality, irregularity or shortcoming in the impugned order so as to warrant interference therein. 13. Accordingly, the revision is dismissed as being devoid of merit. However, considering the aspect that the trial court has issued bailable warrants against the petitioners, it is hereby directed that, upon the petitioners appearing before the trial court on or before 15.2.2018 and furnishing bail bonds to its satisfaction, they shall be enlarged on bail. Needless to say that the petitioners shall be at liberty to raise all their objections before the trial court at the appropriate stage.