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2019 DIGILAW 301 (RAJ)

Mubin v. State of Rajasthan, Thr P. P.

2019-01-24

PANKAJ BHANDARI

body2019
JUDGMENT : Pankaj Bhandari, J. Petitioners have preferred this revision petition aggrieved by judgment dated 12.02.2018 to the extent Court has allowed the application under Section 319 Cr.P.C. and has directed that petitioners be put to trial and be summoned by arrest warrants. 2. It is contended by counsel for the petitioners that initially police did not submit charge-sheet against the petitioners. An application was filed under Section 193 Cr.P.c., which was dismissed on 21.02.2017, thereafter, while dealing with the application under Section 319 Cr.P.C., Court kept the application pending for deciding at the time of final decision as there was a direction of the Apex Court to decide the session case within a period of one year. It is also contended that the Court finally concluded the trial on 12.02.2018 and in the impugned judgment allowed the application under Section 319 Cr.P.C. and has decided the proceedings against the petitioners and for that purpose, Court has directed issuance of warrants of arrest. 3. It is further contended that as many as thirteen persons were named in the F.I.R. including the present petitioners, except for the statement of Akhtar who is complainant and other witnesses have alleged that stones were pelted. It is also contended that the police accepted alibi of Mubin and there was no justification for the Court below to have proceeded against Mubin. It is also contended that for proceedings under Section 319 Cr.P.C., the prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. It is an extraordinary power which is to be exercised. 4. Counsel for the petitioners has placed reliance on Brijendra Singh & Ors. Vs. State of Rajasthan, (2017) CrLR 465. 5. Counsel for the complainant and learned Public Prosecutor have opposed the revision petition. Their contention is that petitioners were named in the F.I.R. There was no document for the Court below to accept the plea of alibi of Mubin. It is also contended that all the witnesses have named and have shown the presence of petitioners at the place of occurrence and the evidence produced if remains unrebutted, the petitioners would stand convicted. 6. I have considered the contentions. 7. The Apex Court in "Brijendra Singh & Ors. Vs. State of Rajasthan" (supra) was dealing with the case where plea of alibi was raised by the accused. 6. I have considered the contentions. 7. The Apex Court in "Brijendra Singh & Ors. Vs. State of Rajasthan" (supra) was dealing with the case where plea of alibi was raised by the accused. The documentary evidence established the plea of alibi. In facts and circumstances of that case, the Court held that the trial Court was duty bound to look into the documents while forming prima facie opinion 8. The Apex Court referred to the judgment of the Constitution Bench in the case of Hardeep Singh Vs. State of Punjab & Ors., (2014) 2 SCC(Cri) 86. The reliance of which is produced as under:- "Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of crossexamination, it requires much stronger evidence than mere probability of his complicity. The test that has 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 absence of such satisfaction, the court should refrain from exercising power under Section 319. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused." 9. It is true that the test which is to be applied is more than prima facie case as exercisable at the time of framing of charge, but it is equally true that the evidence produced before the Court, if remains unrebutted, would lead to conviction than in such cases, the power under Section 319 Cr.P.C. should be exercised. 10. In the present case in hand, petitioners are named in the F.I.R. All the witnesses have shown their presence and injuries are also assigned to them, hence to the extent Court has taken cognizance under Section 319 Cr.P.C., I do not find any impropriety. 10. In the present case in hand, petitioners are named in the F.I.R. All the witnesses have shown their presence and injuries are also assigned to them, hence to the extent Court has taken cognizance under Section 319 Cr.P.C., I do not find any impropriety. As far as summoning the petitioners by arrest warrants is concerned, the Apex Court in Vikas Kumar vs. state of Rajasthan, (2014) 3 SCC 321 has held that in the case where negative final report has been furnished, Court should not summon the petitioner by arrest warrant. In view of the above, revision petition is partly allowed. 11. The criminal revision is, accordingly, partly allowed. While upholding the order qua the present petitioner, whereby the Court has taken cognizance under Section 319 Cr.P.C., petitioners are directed to appear before the Court below and submit bail bonds as deemed proper by the Court below within one month of the passing of the order. 12. Stay application and pending interim applications stand disposed of.