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2019 DIGILAW 65 (RAJ)

Anil Sogani v. State of Rajasthan

2019-01-04

PANKAJ BHANDARI

body2019
JUDGMENT Pankaj Bhandari, J. - Petitioners have preferred this revision petition aggrieved by order dated 17.11.2012 passed by Special Judge, SC/ST (Prevention of Atrocities Cases), Jhalawar, whereby the court below has taken cognizance against the petitioners for offence under Section 306 read with Section 120B of IPC and section 3(2)(5) of the SC/ST Act, while allowing the application under section 319 of Cr.P.C., 1973 2. It is contended by counsel for the petitioners that petitioners were not named in the FIR. Police after due investigation submitted charge-sheet against Jagdish & Kiran, wife of the deceased. An application was filed by the learned Public Prosecutor under section 319 of Cr.P.C., 1973 and the court below has allowed the application and issued warrant of arrest against the petitioners. It is contended that the evidence adduced before the court below was only to the extent that petitioners were having relations with wife of the deceased. There was no evidence with regard to petitioners having met the deceased or instigating the deceased to commit suicide. 3. Counsel for the petitioners has placed reliance on " Sarabjit Singh & Anr. vs. State of Punjab & Anr. AIR 2009 SC 2792 , Brijendra Singh & Ors. vs. State of Rajasthan AIR 2017 SC 2839 and Labhuji Amratji Thakor & Ors. vs. State of Gujarat & Ors. 2018 (15) SCALE 39 " 4. Counsel for the complainant has opposed the revision petition. His contention is that the case of petitioner is similar to that of Jagdish. PW-4,5,6,9 & 10 have stated that petitioners visited the house where the wife of deceased Kiran was residing, and the deceased was under depression because of his wife having illicit relations with the petitioner and Jagdish. It is also contended that court below has not committed any error in taking cognizance as from the evidence adduced before the court, it was clear that petitioners were having illicit relations with wife of the deceased and the deceased committed suicide due to that reason. 5. Learned Public Prosecutor has also opposed the revision petition. 6. I have considered the contentions. 7. PW-6 Ramesh Meena is the complainant, who has lodged the FIR. He has admitted in his cross-examination that he has not named the petitioners in the FIR and he has not even leveled any allegations against the petitioners. 5. Learned Public Prosecutor has also opposed the revision petition. 6. I have considered the contentions. 7. PW-6 Ramesh Meena is the complainant, who has lodged the FIR. He has admitted in his cross-examination that he has not named the petitioners in the FIR and he has not even leveled any allegations against the petitioners. In his statement recorded under section 161 of Cr.P.C., 1973 he has stated that the deceased had not told him anything about his wife having relations with the petitioners and it is only when he read news in the newspaper, he named the petitioners. PW-4 Ram Singh has merely stated before the court that petitioners used to visit Kiran and for that reason, the owner of the house got his house vacated. He has not stated anything with regard to petitioners having illicit relations with Kiran. PW-5 Hitesh Kumar has deposed before the court that the wife of the deceased was of a loose character and she was having relations with the petitioners and one Jagdish. In his cross-examination in chief, he has stated that deceased visited him on Dussehra festival and told him about threat to his life from Jagdish and the present petitioners. Further in cross-examination, the witness has stated the fact that deceased visited him on Dussehra festival and informed the police about threat to life but the same was not recorded in Ex-D2 and the statement recorded under section 161 of Cr.P.C., 1973 PW-9 & PW-10 have also deposed that the deceased informed the witness that his wife was having illicit relations with petitioners and Jagdish. Statement of PW-1 Mahesh Kumar, who is the owner of the house, where the deceased committed suicide has deposed that deceased and Kiran were not having any dispute. A day prior to the commission of suicide, deceased along with his wife went to the Dussehra festival. Similar is the statement of Rajesh Bai, wife of the land lord. 8. Apex Court in "Sarabjit Singh & Anr. v. State of Punjag & Anr. (Supra)" while dealing with the provisions of section 319 of Cr.P.C., 1973 has held that for exercising the powers under Section 319 of the Code has provides that such an extraordinary case has to be made out. 8. Apex Court in "Sarabjit Singh & Anr. v. State of Punjag & Anr. (Supra)" while dealing with the provisions of section 319 of Cr.P.C., 1973 has held that for exercising the powers under Section 319 of the Code has provides that such an extraordinary case has to be made out. The nature of the evidence should be such which would make out grounds for exercise of extraordinary powers and the materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. Apex Court in "Brijendra Singh & Ors. v. State of Rajasthan (Supra)" has held that power of under section 319 of Cr.P.C., 1973 is a discretionary and an extraordinary power which has to be exercised sparingly and should not be exercised because the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. Apex Court in "Labhuji Amratji Thakor & Ors. v. State of Gujarat & Ors. (Supra)" placing reliance in " Hardeep Singh vs. State of Punjab & Ors. 2014 (3) SCC 92 " has reproduced page-105 and the Judgment of the Constitution Bench Judgment in Hardeep Singh (Supra), I deem it proper to quote para No.105:- "Power under section 319 Code of Criminal Procedure, 1973 is a discretionary and extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner". 9. Apex Court however observed that merely because any person is not named in the F.I.R. or the charge-sheet, does not mean that whenever a statement is recorded before the Court and name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C., 1973 10. 9. Apex Court however observed that merely because any person is not named in the F.I.R. or the charge-sheet, does not mean that whenever a statement is recorded before the Court and name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C., 1973 10. Reverting back to the case in hand, in light of the Judgment of the Apex Court, the courts are required to see whether the evidence adduced is sufficient to proceed against a person who is not named as an accused. In the present case in hand, complainant himself has stated that from the reading of the newspaper, it came to his notice that the petitioners were having relations with wife of the deceased. Other witness has also stated that petitioners were visiting wife of the deceased. There is no evidence namesake to the fact that the deceased was further instigated by the petitioners. Further, there is no evidence with regard to commission of an offence under Section SC/ST Act. There is no witness who has seen the petitioners visiting wife of the deceased. There are no mobile details which point out towards the petitioners contacting with deceased or his wife. To my mind, there is no strong and cogent evidence, so as to take cognizance under section 319 of Cr.P.C., 1973 In view of the fact that police has submitted charge-sheet against the present petitioners and the evidence adduced is not cogent and sufficient to proceed against the petitioners, the revision petition deserves to be allowed. 11. Consequently, the revision petition is allowed. The impugned order vide which the court has taken cognizance against the petitioners is quashed and set aside. 12. Stay application also stands disposed.