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2018 DIGILAW 2192 (RAJ)

Ram Phool v. State of Rajasthan

2018-11-13

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Petitioner has preferred this revision petition aggrieved by order dated 12.04.2007 passed by Additional Sessions Judge (Fast Tract) No.1 Jaipur, District in Sessions Case No.67/2005 whereby application filed by the prosecution under Section 319 Cr.P.C., 1973 was allowed and Court has taken cognizance against the petitioner for offence under Sections 147, 148, 323, 325/149 and 307/149 IPC. 2. It is contended by counsel for the petitioner that in the FIR lodged by respondent No.2, police after due investigation submitted negative final report qua the petitioner. Thereafter Court took cognizance under Section 190 Cr.P.C., 1973 but after hearing the parties vide order dated 20.10.2005 discharged the petitioner. 3. It is contended that against the discharge order respondent No.2 preferred a revision before the High Court which was dismissed by the High Court. It is contended that respondent No.2 earlier also moved an application under Section 319 Cr.P.C., 1973 which was dismissed as withdrawn and the Court below did not have jurisdiction to entertain a second application under Section 319 Cr.P.C., 1973 as that would tantamount to reviewing the earlier order. 4. It is also contended that Section 319 Cr.P.C., 1973 is applicable only if persons is not an accused. It is argued that there being a specific bar under Sub Section 1 of Section 319 of proceedings against an accused Court below had erred in invoking the provisions of Section 319 Cr.P.C., 1973 5. It is also contended that petitioner is a teacher who was at Delhi which was established from his attendance-sheet. Considering the entire material police has submitted negative final report and after hearing the parties Court had discharged the petitioner which order was affirmed by the Revisional Court. 6. Counsel for complainant-respondent No.2 has opposed the revision petition. His contention is that Court is entitled to take cognizance against any person if from the material and evidence recorded during trail it is revealed that such person has committed an offence. It is also contended that from the record it is revealed that petitioner was medically examined and the document submitted by the petitioner with regard to his presence at Delhi are not genuine. It is also contended that there is enough material against the petitioner and the Court has not committed any material irregularity in taking cognizance against the petitioner. 7. It is contended that at the time revision petition was dismissed. It is also contended that there is enough material against the petitioner and the Court has not committed any material irregularity in taking cognizance against the petitioner. 7. It is contended that at the time revision petition was dismissed. Respondent was given liberty to more application under Section 319 Cr.P.C., 1973 at the appropriate juncture. 8. I have considered the contentions. Sub clause (1) of Section 319 reads as under:- "Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed." 9. From bare perusal of Sub Section (1) of Section 319 it is apparent that the powers can be exercised only against a person who is not an accused. In the present case in hand cognizance was taken against the petitioner and he was dealt with as an accused and after hearing the arguments he was discharged by the Court on 20.10.2005 which order was affirmed by the High Court while exercising revisional jurisdiction. 10. In Sohan Lal and Ors. v. State of Rajasthan (1990) 4 SCC 580 it was held that provisions of Section 319 cannot be invoked in relations to a persons who is an accused. The Apex Court observed that once a person is found to have been the accused in the case, he goes out of the reach of Section 319 Cr.P.C., 1973 This Court is also of the firm view that Section 319 cannot be invoked in relation to a person who is an accused in a case and who has been discharged by the Court. Court below has erred in invoking the provisions of Section 319 Cr.P.C., 1973 against the petitioner who already stands discharged by the trail Court and the order of which has been affirmed by the High Court. 11. Contention of counsel for the respondent that they have given liberty to move appropriate application at relevant time would not come in aid of the respondent has there is specific bar under Section 319 Cr.P.C., 1973 with relation to a person who is an accused. 12. In view of the above, the revision petition is allowed. 13. Order dated 12.04.2007 is quashed and set aside.