Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 512 (RAJ)

Ranjeet Singh Barar S/o Shri Nakshatra Singh v. State of Rajasthan through, Its P. P.

2018-02-14

P.K.LOHRA

body2018
ORDER : 1. By the instant revision petition, petitioners have assailed order dated 10th of May 2017, passed by Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Cases), Sri Ganganagar (for short, learned trial Court). The learned trial Court, by the order impugned, accepted application of the respondent-complainant under Section 319 Cr.P.C. and issued bailable warrants against petitioners, as accused persons, for being tried together with other charge-sheeted accused persons. 2. The facts, in brief, giving rise to this revision petition are that complainant lodged FIR with Police Station, Ganganagar against 14 named accused besides 10-15 other persons attributing serious offences punishable under Sections 147, 148, 149, 307, 323, 336, 395 IPC and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the FIR, the petitioners were also specifically named by the complainant for attacking him well armed with lathis and hockeysticks etc. Police after investigation submitted charge-sheet against 8 persons viz. Jitender Singh alias Rinkle, Jasmeet Singh, Gurmeet Singh, Gurpreet Singh, Gurjinder Singh alias Pisti, Gurpinder Singh, Lucky Jangid and Gurcharan Singh while dropping all the petitioners. 3. Learned trial Court took cognizance against accused persons named in the charge-sheet, and thereafter, framed charges, and upon denial, they were put on trial. During trial, statements of complainant PW-1 Sukhwinder Singh were recorded and the examination-in-chief of PW-2 Virendra Singh took place. At this stage, the complainant submitted an application under Section 319 Cr.P.C. with positive assertion that all the petitioners are not only named in the FIR but from the evidence of complainant also their involvement in commission of offence is borne out, and therefore, all of them may be summoned for being tried as accused with other accused persons facing trial. The application is contested by the accused persons facing trial and in reply to the application it is averred on their behalf that during investigation no incriminating evidence is found against them and even from the statements of PW-1 & PW-2 no plausible ground is made out for taking cognizance against them. 4. Learned trial Court, after hearing the submissions made by rival parties, by the order impugned, accepted the application of complainant and issued process against petitioners for taking cognizance against them for the aforesaid offences. 5. Mr. 4. Learned trial Court, after hearing the submissions made by rival parties, by the order impugned, accepted the application of complainant and issued process against petitioners for taking cognizance against them for the aforesaid offences. 5. Mr. H.S. Sandhu, learned counsel for the petitioners, has strenuously urged that the order impugned is contrary to the settled principles of law inasmuch as there was no evidence much less tangible evidence against the petitioners for taking cognizance against them and summoning them as accused persons for being tried with other accused persons. Learned counsel submits that powers conferred on the Court under Section 319 Cr.P.C. are extraordinary and these powers are to be exercised with utmost caution very sparingly but learned trial Court has exercised said powers in a sweeping manner without examining the evidence and materials available on record. Mr. Sandhu, learned counsel, contends that while exercising powers under Section 319 Cr.P.C. Court is required to record its satisfaction that sufficient evidence is produced by the prosecution which would lead to conviction of the persons, who are sought to be added as accused persons. He further submits that as there is no such finding of the learned trial Court in the impugned order, same is per se vulnerable. It is also argued by learned counsel that no reasons are forthcoming from the impugned order, and therefore, same is not sustainable. 6. Per contra, learned Public Prosecutor has stoutly defended the impugned order. It is argued by learned Public Prosecutor that learned trial Court has examined the materials available on record, including the statements of two prosecution witnesses, and upon recording its satisfaction about availability of requisite incriminating material against the petitioners, has summoned them as additional accused persons. 7. Learned counsel for the complainant, while reiterating the arguments advanced by learned Public Prosecutor, submits that learned trial Court has rightly exercised its powers under Section 319 Cr.P.C. while passing the impugned order. Learned counsel for the complainant submits that all the petitioners are named in the FIR besides other accused persons who are charge-sheeted with a specific allegation that all of them in furtherance of common object well armed with lathis and hockey-sticks stormed into the room of complainant and gave him serious beatings. Learned counsel for the complainant submits that all the petitioners are named in the FIR besides other accused persons who are charge-sheeted with a specific allegation that all of them in furtherance of common object well armed with lathis and hockey-sticks stormed into the room of complainant and gave him serious beatings. It is also argued by learned counsel for the complainant that the allegations made in the FIR are reiterated by the complainant in his statements recorded before the Court by naming all the accused persons for commission of offences. It is with all these arguments, learned counsel for the complainant submits that there is no illegality or impropriety in the impugned order warranting interference by this Court. 8. I have heard learned counsel for the parties and perused the materials available on record including the statements recorded during trial. 9. A bare reading of the FIR makes it abundantly clear that culmination of FIR was an unsavory incident, which occurred in an educational institution, a post graduation degree college at Sri Ganganagar, and, in the scuffle, students and some teachers allegedly manhandled the Principal of institution. The FIR, as such, was lodged by the Principal of institution naming several accused persons including the petitioners. While it is true that after investigation police submitted charge-sheet against 8 accused persons and dropped present petitioners, but then, the question, which has cropped up in the matter, is whether there was prima facie evidence against the petitioners for taking cognizance against them and summoning them as accused persons for being tried with other accused persons already charge-sheeted. Learned trial Court has discussed the matter threadbare for recording its affirmative finding and has also spelt out reasons for exercising extraordinary powers under Section 319 Cr.P.C. Be that as it may, the Court also feels that impugned order is to be examined on the touchstone of available material and the nature of powers vested with the Court under Section 319 Cr.P.C. 10. At the outset, it may be observed that complainant has named all the petitioners in the FIR for attacking him with other accused persons in furtherance of common object and this positive assertion of the complainant is also clearly discernible from his statement recorded during trial as PW-1. At the outset, it may be observed that complainant has named all the petitioners in the FIR for attacking him with other accused persons in furtherance of common object and this positive assertion of the complainant is also clearly discernible from his statement recorded during trial as PW-1. True it is that power under Section 319 Cr.P.C. is to be exercised sparingly, but then, while exercising such powers, the Court is only required to see as to whether accused summoned will in all likelihood be convicted. Therefore, satisfaction of the Court, while exercising powers under Section 319 Cr.P.C. is akin to the power, which the Court is required to exercise at the time of framing charge. Undeniably, at this stage, the Court is not required to record its satisfaction that the evidence of prosecution would lead to the conviction of summoned accused-petitioners. 11. The Law Commission, in its 41st Report, recommended a comprehensive provision to summon or add a person not appearing in Court despite there being evidence indicating prima facie case against him for commission of offence. The Law Commission made endeavour to introduce Section 319(1) Cr.P.C. with laudable object precisely for the reason that Section 351 of the Code of Criminal Procedure, 1898 is silent on this vital issue. Therefore, the aforesaid words, “any person not being the accused”, engrafted under Section 319 Cr.P.C. cannot be construed narrowly. Its expansive meaning and constructive and proposive interpretation is necessary to advance cause of justice. 12. A Constitution Bench of the Supreme Court in Hardeep Singh vs. State of Punjab and Others, 2014 Cr.L.R. (SC) 310 has observed that Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur. The Court held: “Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. The Court discussed the power under Section 319 Cr.P.C. threadbare and summed up its conclusions as follows: “110. We accordingly sum up our conclusions as follows: Question Nos. 1 & III Q.1 What is the stage at which power under Section 319 Code of Criminal Procedure can be exercised? We accordingly sum up our conclusions as follows: Question Nos. 1 & III Q.1 What is the stage at which power under Section 319 Code of Criminal Procedure can be exercised? AND Q. III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. Section 319 Cr.P.C. significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C. and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the Court after the trial commences, for the exercise of power under Section 319 Cr.P.C. and also to add an accused whose name has been shown in Column 2 of the charge-sheet. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Question No. II Q. II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question No. IV Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial-therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question No. V Q. V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. The matters be placed before the appropriate Bench for final disposal in accordance with law explained hereinabove.” 13. In Hardei vs. State of U.P. 2016 Cr.L.R. (SC) 365, in almost identical circumstances, Supreme Court has observed that non sending of a suspect to face trial by the police does not affect the power of trial Court under Section 319 Cr.P.C. The Court held: “It is well accepted in criminal jurisprudence that F.I.R. may not contain all the details of the occurrence or even the names of all the accused. It is not expected to be an encyclopedia even of facts already known. There are varieties of crimes and by their very nature, details of some crimes can be unfolded only by a detailed and expert investigation. This is more true in crimes involving conspiracy, economic offences or cases not founded on eye-witness accounts. The fact that Police chose not to send up a suspect to face trial does not affect power of the Trial Court under Section 319 of the Cr.P.C. to summon such a person on account of evidence recorded during trial. This is the factual scenario in the case at hand also.” 14. A learned Single Judge of this Court in Shakuntala and Another vs. State of Rajasthan and Another, 2016 (1) Cr.L.J. (Raj.) 302, upon considering specific allegation in the FIR against an individual, declined to interfere with the order of the trial Court taking cognizance and summoning him as an additional accused under Section 319 Cr.P.C. The Court held: “It is not disputed that the complainant, attributed specific allegation against the present petitioners in the F.I.R. as well as in her statement recorded during investigation. The Investigating Officer has given no significant reasons for leaving out the name of the present petitioners from the array of accused while filing the charge-sheet. Thus, in the opinion of this Court, the Trial Judge was absolutely justified in summoning the present petitioners to face trial along with the chargesheeted accused. The impugned orders do not suffer from any illegality, irregularity or perversity so as to call for any interference in the inherent powers of this Court under Section 482 Cr.P.C.” 15. The order of coordinate Bench dated 8th of February 2018 passed in Subhash vs. State and Others, S.B. Criminal Revision No. 841/16, cited by learned counsel for the petitioners, is clearly distinguishable on the facts and circumstances of the instant case as in that case the complainant did not name the respondents as assailants in his statements under Section 161 Cr.P.C. and from the evidence of other witnesses it was clear that the respondents had no connection with the crime. 16. In view of foregoing discussion and relying on the legal precedents, I am unable to find any illegality or impropriety in the order impugned warranting interference in exercise of revisional jurisdiction. 17. Consequently, revision petition fails and the same is hereby dismissed.