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2019 DIGILAW 250 (RAJ)

Jagdish Ojha v. State of Rajasthan

2019-01-19

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this petition claiming following relief:- It is, therefore humbly prayed that this Misc. petition under section 482 Cr.P.C., 1973 of the petitioner may kindly be allowed and the impugned orders dated 7.6.2015 passed by Chief Judicial Magistrate, Bikaner in case NO. 527/2011 and order dated 2.5.2018 passed by Addl. District Sessions Judge No. 1, Bikaner in criminal revision No. 146/2017 may kindly be quashed and set aside. " 2. The facts noticed by this Court are that on 23.12.2003 complainant gave a Parcha Statement to SHO PS Nokha that while he was admitted in PBM Hospital, Bikaner on 23.12.2013 while he was getting his Jeep serviced then at about 4.35 pm one jeep bearing No. RJ 10 L828 came in which Modaram, Siwar, Ram Kishan, Lakhara, Pratap Lakhara, Om Ram Meghwal, Babulal Nai and Jagdish Ojha alongwith some other persons came and took him in their jeep and gave him beatings. The complainant received injuries including fractured leg. The bone of contention of the present case is that while invoking section 319 of CR.P.C., 1973 the learned court below has taken cognizance against the petitioner Jagdish Ojha. 3. Learned counsel for the petitioner submits that at this belated stage, the learned court below ought not to have taken the cognizance against the petitioner while exercising powers under Section 319 Cr.P.C., 1973 because the trial has commenced and as per the precedent law settled by Hon'ble Apex Court at such beleted stage power under Section 319 Cr.P.C., 1973 ought not to be exercised. 4. Learned counsel for the petitioner has referred to the judgment of Michael Machado and Anor v. Central Bureau of Investigation and anr. reported in 2000 CRL. L.J. 1706 , relevant paras are as under: - 11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction form the evidence already collected regarding two aspects. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction form the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could be as well be tried along with the already arraigned accused. 12. But even then, what is conferred on the court is only a discretion as could be discerned from the words " the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount o;f time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons. 13. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1 : ( AIR 1983 SC 67 : 1983 Cri LJ 159) this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the Court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the Court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned: "But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken'. 14. The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limp of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses. 14. The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limp of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses. Whole proceedings must be re commenced from the beginning of the trial, summon the witnesses once again and examine them and cross examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the court should refrain from adopting such a course of action. 5. Learned counsel for the petitioner also relied upon the judgment of this Court in the matter of Sattar v. State of Rajasthan passed in SBCR. Rev. Pet. No. 1940/2016 decided on 2.8.2017 whereby the Hon'ble Court held that using of powers under Section 319 Cr.P.C., 1973 is a extra ordinary power and sparingly used when compelling reasons are there. He further shown this Court the precedent law laid down by the Hon'ble Apex Court in Sarabjit Singh & Anr. v. State of Punjab & Anr. reported in 2009 CRI.L.J. 3978 whereby the Hon'ble Apex Court laid down law that without sufficient and cogent reasons available to the learned court below ipse dixit invocation of Section 319 was not justified. 6. Learned counsel submits that at this belated stage the invocation of Section 319 was contrary to law. Learned counsel for the respondent submits that the Constitution Bench of Apex Court in Hardeep Singh 2014 (3) SCC 92 has overruled Sarabjit Singh and opened the doors for reasonable intervention in Section 319. Learned counsel for the respondents shows that the petitioner had preferred a petition bearing SB Cr. Pet. No. 582/2006 in which the petitioner had sought intervention of this Court for invoking section 190 of the Cr.P.C., 1973 but that was disposed of by this Court on 18.8.2006 with a liberty to seek impleadment of Jagdish by filing an application under Section 319 Cr.P.C., 1973 at appropriate stage. 7. Pet. No. 582/2006 in which the petitioner had sought intervention of this Court for invoking section 190 of the Cr.P.C., 1973 but that was disposed of by this Court on 18.8.2006 with a liberty to seek impleadment of Jagdish by filing an application under Section 319 Cr.P.C., 1973 at appropriate stage. 7. Learned counsel for the respondents submits that after this since the respondent was not having any application raising the issue of impleading Jagdish for the evidence to be examined and moved another criminal petition being No. 2134/2016 which was decided on 29.8.2016 with a direction to the learned court below to expeditiously conduct the trial and complete the same within the period of one year. 8. Learned counsel for the respondents has drawn attention of this court to the following portion of the impugned order which reads as under :- 9. Learned counsel for the respondents submits that learned court below has applied its mind and after finding reason to be cogent and sufficient, invocation of Section 319 Cr.P.C., 1973 has been made. 10. After hearing learned counsel for the parties and perusing the record, this Court finds that though it is true that the power under Section 319 Cr.P.C., 1973 has to be cogently used only after the court below is more than prima facie satisfied that the case is made out. However, on the bare reading of the Cr.P.C. such powers under Section 319 Cr.P.C., 1973 has been provided to avoid any injustice to the parties and complete discretion has been given to the courts as to examine the issue at any stage and on proper witness and facts any such person may be impleaded as party. 11. We have seen the impugned orders and we find that the court has recorded from the first instance i.e. FIR itself that there was a specific allegation against the present petitioner Jagdish the injured witness/complainant witnesses consistently stated in the statement under Section 161 as well as on other evidence that Jagdish was involved in the act of giving beating to him. 12. 12. The learned court below has relied upon the statements under Section 161 Cr.P.C., 1973 of Jethu Singh, Badri Modi, Chandaram, Manphool etc.The court below has further relied upon the prosecution witness PW/1 Manphoolram, PW/2 Jethusingh, PW/3 Gorkharam, PW/5 Badrinarayan and PW/11 Ganeshlal and only after examining all the statement a complete analogy was confirmed against the present petitioner, therefore, impugned order is justified and no interference is call for. 13. The petition is dismissed.