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Rajasthan High Court · body

2019 DIGILAW 1417 (RAJ)

Ganga Ram v. State of Rajasthan, Through PP

2019-05-09

MANOJ KUMAR GARG

body2019
JUDGMENT 1. Heard the learned counsels for the parties. 2. Instant criminal misc petition has been filed by the petitioner feeling aggrieved by the order dated 29.10.2018 passed by learned Additional Special Judge SC/ST (Prevention of Atrocities Act) Cases, Merta [hereinafter referred to as revisional Court] dated 29.10.2018 whereby, the learned Special Judge dismissed the revision petition filed by the petitioners and affirmed the order dated 10.07.2018 passed by learned Additional Chief Judicial Magistrate, Degana [hereinafter referred to as trial court] whereby, the learned Magistrate allowed the application under Section 319 Cr.P.C. and took cognizance against the petitioners for offence under Section 147, 341, 323, 325/149 IPC. 3. Learned counsel for the petitioner submits that after registration of FIR, a thorough investigation was conducted and police submitted Final report in respect of present petitioners. Later on, after recording of evidence, the complainant filed an application under Section 319 Cr.P.C which was dismissed by the trial court vide order dated 15.11.2014. The complainant then filed a revision petition before the revisional Court which was allowed by the revisional Court vide order dated 03.06.2016 and a direction was issued to the trial court to take cognizance against the petitioners. 4. Feeling aggrieved by the order passed by the revisional Court, petitioners preferred revision petition before this Court which was registered as S.B. Criminal Revision Petition No. 775/2016. The said revision petition was disposed of vide order dated 27.03.2017 and the matter was remanded to the trial court to pass a fresh order in the light of judgment in the case of Hardeep Singh v. State of Punjab reported in (2014) 1 Supreme 132 . In pursuance of order passed by this court, the learned trial court passed a fresh order dated 10.07.2018 taking cognizance against the petitioners for offence under Section 147, 341, 323, 325/149 IPC. A revision petition was filed by the petitioners against the order dated 10.07.2018 which came to be dismissed by the revisional court vide order dated 29.10.2018. Hence, this misc. petition. 5. Learned counsel for the petitioners submits that the learned trial court has committed an error in allowing the application under Section 319 Cr.P.C inasmuch as there is no material to establish the fact that petitioners in any manner committed the crime as alleged by the prosecution. Hence, this misc. petition. 5. Learned counsel for the petitioners submits that the learned trial court has committed an error in allowing the application under Section 319 Cr.P.C inasmuch as there is no material to establish the fact that petitioners in any manner committed the crime as alleged by the prosecution. It is argued that there are material contradictions and omissions in the statement of prosecution witnesses inasmuch as independent witnesses PW/1 Heera Ram and PW/2 Chandra Ram have not supported the prosecution story and have been declared hostile. It is further submitted that at such a belated stage, the complainant had filed the application under Section 319 Cr.P.C which is not liable to be entertained. The investigating officer did not find involvement of the petitioners in the crime and therefore, the prosecution is trying to falsely implicate the petitioners. 6. Per contra, learned Public Prosecutor and learned counsel for the respondent has supported the orders impugned and it is submitted that the learned trial court has allowed the application on the basis of statement of witnesses as the name of the petitioners find right from the beginning in the FIR as well as in the statement recorded by the police under Section 161 Cr.P.C but the police without assigning any reason, exonerated the petitioners. Thereafter, in the statements of eye witnesses namely PW/3 Baldev Ram, PW/4 bhinya Ram, PW/5 Deva Ram, PW/6 Mohan Singh and PW/7 Gopal Ram who is complainant injured, specifically name the present petitioners and specific role has been assigned to the present petitioners, therefore, the order impugned allowing the application under Section 319 Cr.P.C is justified and does not call for any interference. 7. I have considered the rival submissions and carefully considered the material placed on record. 8. The FIR was lodged by PW/7 Gopal Ram who specifically mention the name of present petitioners and specific role was assigned to them. Similarly, in the statement under Section 161 Cr.P.C. names of petitioners were mentioned by the witnesses but the police without assigning any cogent reason, submitted a Final Report in this case. 8. The FIR was lodged by PW/7 Gopal Ram who specifically mention the name of present petitioners and specific role was assigned to them. Similarly, in the statement under Section 161 Cr.P.C. names of petitioners were mentioned by the witnesses but the police without assigning any cogent reason, submitted a Final Report in this case. Thereafter in Court, PW/3 Baldev Ram, PW/4 bhinya Ram, PW/5 Deva Ram, PW/6 Mohan Singh named the present petitioners and PW/7 Gopal Ram who is complainant injured, specifically states that the petitioner Ganga Ram fired from his gun but the palletes did not hit him and thereafter, all the accused started beating him. Asha Ram inflicted injury by iron rod on his right leg. Bhanwara Ram inflicted injury on his left leg, Shwaran Ram caused injury on his back and Arjun Ram inflicted injury on his right hand. Thus from the statement of the injured PW/7 Gopal Ram as well as the injury report in which number of injuries were found on the body of PW/7 Gopal Ram, it is clear that the learned trial court has rightly taken cognizance against the petitioners for offences under Section 147, 341, 323, 325/149 IPC. 9. The constitutional Bench of Honble Supreme Court in the case of Hardeep Singh v. State of Punjab reported in (2014) 1 Crl.L.R (SC) 310 while discussing the powers of the Court concurred with the view taken in the case of Dharam Pal v. State of Haryana reported in (2014) 3 SCC 306 concluded as under: "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? AND Q. III Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure 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 Pals 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. A. In Dharam Pals 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 Code of Criminal Procedure and the Sessions Judge need not wait till evidence under Section 319 Code of Criminal Procedure becomes available for summoning an additional accused. Section 319 Code of Criminal Procedure, 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 Code of Criminal Procedure; and under Section 398 Code of Criminal Procedure are species of the inquiry contemplated by Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure, and also to add an accused whose name has been shown in Column 2 of the chargesheet. In view of the above position the word evidence in Section 319 Code of Criminal Procedure 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) Code of Criminal Procedure 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 Code of Criminal Procedure a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Code of Criminal Procedure 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 Code of Criminal Procedure to arraign an accused? Question No. IV Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Code of Criminal Procedure to arraign an accused? Whether the power under Section 319(1) Code of Criminal Procedure 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) Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure has to be complied with before he can be summoned afresh." 10. Recently, the co-ordinate Bench of this Court while dealing with the scope of Section 319 Cr.P.C in the case of Bhuri Singh Lodha v. State of Rajasthan through P.P. & Ors. reported in 2019 (2) Cr.L.R (Raj.) 571 held as under:- "I have considered the contentions and have perused the Charge-sheet as well as the statement of the witnesses recorded before the Court. reported in 2019 (2) Cr.L.R (Raj.) 571 held as under:- "I have considered the contentions and have perused the Charge-sheet as well as the statement of the witnesses recorded before the Court. Name of respondent is appearing in the FIR, which was lodged immediately after the incident. Overt act has been assigned to Respondent Nos. 2, 3, 5 & 6 in the statement recorded by the Police under Section 161 Cr.P.C. The allegation of causing injury to the deceased is also assigned to Respondent Nos. 2 & 3. In the Court statement also, Bhuri Singh has deposed that Respondent Nos. 2 & 3 caused injury to the deceased. Injured have also given statement that injury was caused to them by Non- Petitioner Nos. 6 & 9. When the name of respondent is appearing in the FIR, which was lodged immediately after the incident and their name is also appearing in the statement recorded under Section 161 of Cr.P.C., as also statement made before the Court, their evidence if remains unrebutted would surely lead to their conviction. Hence, the Court below has erred in not correctly interpreting the Judgment of Full Bench of the Apex Court in "Hardeep Singh v. State of Punjab & Ors. (Supra). The language used by the Apex Court in the Judgment is that test 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 facts of this case, the evidence that has been adduced if goes unrebutted would lead to conviction. Hence, trial Court has erred in rejecting the application under Section 319 of Cr.P.C. and the matter requires to be remanded back to the Court below for deciding the application under Section 319 of Cr.P.C. afresh in light of the Judgment of Apex Court." 11. In light of the above proposition of law, if we examine the present case in the light of the evidence recorded so also the injury report, it cannot be said that the trial court has committed any error in allowing the application under Section 319 Cr.P.C. and taking cognizance against the petitioners for the offences under Section 147, 341, 323, 325/149 IPC. The misc. petition being bereft of any merit is hereby dismissed. Stay petition also stands dismissed.