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2019 DIGILAW 826 (RAJ)

Bhuri Singh v. State of Rajasthan

2019-03-12

PANKAJ BHANDARI

body2019
JUDGMENT Pankaj Bhandari, J. - Complainant-petitioner has preferred this Revision Petition aggrieved by Order dated 22.08.2016 passed by Additional Session Judge No. 2, Bayana, District Bharatpur, whereby application filed on behalf of the prosecution under Section 319 Cr.P.C. was rejected. 2. It is contended by counsel for the petitioner that Non-Petitioner No. 2 to 10 are named in the FIR as well as in the statement of witnesses recorded under Section 161 of Cr.P.C. Their names also appear in the statement of witnesses recorded before the Court. It is contended that in the statement of witnesses overt act has also been assigned to non-petitioner Nos. 2, 3, 6 and 9. 3. It is contended that the Court below wrongly interpreted the Judgment of Apex Court in "Hardeep Singh v. State of Punjab & Ors. (2014) 3 SCC 92 " and came to the conclusion that the evidence adduced on behalf of the prosecution if remains unrebutted would not lead to the conviction of the non-petitioner and on this ground, the application was rejected. 4. It is contended that the question which was referred to the Larger Bench of the Apex Court and the answer was:- "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? Ans: 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. "Thus, we hold that only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, 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". 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". The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of 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. 5. It is contended that the Court below interpreting the Judgment of Apex Court came to the conclusion that the evidence adduced on behalf of the prosecution even if it goes unrebutted would not lead to conviction of the non-petitioner and accordingly dismissed the application. 6. Counsel for the accused-respondents has opposed the Revision Petition. His contention is that no overt act is assigned to the petitioner in the FIR and statement recorded under Section 161 of Cr.P.C. The allegations were leveled against as many as seventy to eighty persons, out of which only thirteen were charge-sheeted. Court below has not committed any error in dismissing the application under Section 319 of Cr.P.C. 7. Counsel for the accused-respondents has placed reliance on "2013 CRI.L.J. 4666 Sunita Agarwal v. State of Rajasthan & Ors". , "2013 CRI.L.J. 1646 Mir Mohd. Asfia v. Mir Mohd. Ismail & Ors". , Judgment of this Court in "S.B. Criminal Revision Petition No. 1218/2018 Anil Sogani & Anr. v. State of Rajasthan & Anr". , Judgment of Apex Court in "Criminal Appeal No. 1349/2018 (arising out of SLP (Crl.) No. 6392/2018) Labhuji Amratji Thakor & Ors. v. State of Gujarat & Ors". , decided on 13.11.2018. 8. 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. 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. 9. 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. 10. The Revision Petition is accordingly allowed. The matter is remanded back to the Court below for deciding the application under Section 319 Cr.P.C. afresh in light of the Judgment of the Apex Court. 11. Stay application stands disposed.