Rajasthan High Court - Jaipur
Jal Singh vs State Of Rajasthan And Anr on 10 April, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. CRIMINAL REVISION PETITION NO. 48/2010 JAL SINGH VS. STATE OF RAJASTHAN & ANOTHER. DATE OF ORDER : 10.04.2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II Mr. Pankaj Gupta, for the petitioner.
Mr. N.R. Saran, Public Prosecutor, for Respondent No. 1-State.
Mr. Anurag Sharma, for Respondent No. 2.
Heard learned counsel for the petitioner, learned Public prosecutor as well as learned Counsel for Respondent No. 2/complainant.
2. This revision petition under Section 397 read with Section 401 Cr.P.C. has been filed against the order dated 06.01.2010 passed by Additional Sessions Judge(Fast Track), Mahwa, District Dausa (hereinafter referred to as 'the Trial Court') in Sessions Case No. 42/2008(24/2005), State Vs. Ramkishan & Ors, whereby the Trial Court has issued process against the petitioner, while invoking its power under Section 319 Cr.P.C. for offences under Sections 148, 307, 325, 323/34 IPC and ordered to summon the petitioner by non-bailable warrant.
3. The concise facts of the case are that on 17.03.2013 at about 9.00 PM Jaisingh and Lekhraj went for Holika Dahan and they were attacked by accused Jagdish, Lakhan Singh, Jalsingh, Karan Singh, Banne Singh, Ramkishan who were armed with Dharia, Farsa and Axe. Jal Singh inflicted a blow by Dharia at left side of head of Jaisiram due to which blood started to flow. Ramkishan inflicted blow by lathi on his eyes. Lakhan Singh inflicted blow by Dharia on Lekhraj head. Jagdish also inflicted blow on the person of Lekhraj and he also took Rs. 1500/- from his pocket. Banne Singh and Karan Singh also gave beatings to them. An FIR No. 87/2003 was registered at Police Station Mahwa and investigation started. After investigation, charge sheet was filed against Ramkishan, Banne Singh, Karan Singh, Lakhan Singh under Sections 341, 323, 325, 307 IPC and the case was committed to the Court of Sessions Judge, Dausa from where the case was transferred to Additional Sessions Judge(Fast Track) Bandikui and thereafter, the case was again transferred to the Court of Additional Sessions Judge Camp Mahwa. Ultimately, the case was transferred to the Trial Court. The Trial Court framed charges against accused persons Lakhan Singh, Ram Kishan, Banne Singh and Karan Singh under Sections 307 or 307/34, 323 or 323/34 IPC. Prosecution examined nine witnesses. At that stage, an application under Section 319 Cr.P.C. was filed by the complainant Bhagwat Singh through Public Prosecutor for summoning Jal Singh and Jagdish Singh as additional accused. Learned Trial Court after hearing the arguments allowed the application vide impugned order dated 06.01.2010 and the present petitioner was ordered to be added as additional accused and summoned through non-bailable warrant. Application to the extent of calling Jagdish as additional accused has been dismissed by the Trial Court. Being aggrieved by the impugned order dated 06.01.2010 passed by learned Trial Court, the accused-petitioner has preferred this revision petition.
4. Learned counsel for the accused-petitioners vehemently contended that impugned order passed by the learned Trial Court is patently illegal, improper, unjust and not sustainable, being contrary to the facts and material available on record. Learned Trial Court has invoked the power under Section 319 Cr.P.C. without appreciating the evidence to the extent that there is any hopeful chance for conviction of petitioner. It is further contended that the learned Trial Court has failed to appreciate the facts of the case particularly the certificate issued by Captain Officer Commanding rear wherein it has been specifically mentioned that due to outstanding performance in cross country, five days casual leave from 18.03.2003 to 22.03.2003 was granted to the petitioner and in pursuance to leave order the petitioner left his unit location i.e. Jammu on 17.03.2003 at 16.30 hrs by Pooja Express and as per version of complainant or admitted case of prosecution incident took place on 17.03.2003 at 9.00 PM. So, it is impossible that the petitioner could be available in village and participated in occurrence. Thus, the impugned order passed by the Trial Court is bad in law, hence, liable to be quashed and set aside. Learned counsel for the petitioner submitted that the learned Trial Court wrongly relied upon the testimonies of P.W.1 Samay Singh, P.W.2 Roop Singh, P.W.3 Hukum Singh, P.W.5 Pooran, P.W.6 Lekhraj and P.W.7 Jai Singh and erred in discarding the leave certificate dated 14.05.2005 and the testimonies of the above witnesses suffer from severe contradictions and omissions. It is further contended that the learned Trial Court wrongly discarded the leave certificate which is a official/public document and it need not be proved and required any corroboration. Therefore, the impugned order dated 06.01.2010 passed by the learned Trial Court deserves to be quashed and set aside. Learned counsel for the petitioner, in support of his arguments, placed reliance on the decisions rendered by the Hon'ble Supreme Court in the case of Kailash V. State of Rajasthan and Anr., AIR 2008 SC 1564; Sarabjit Singh and Anr. Vs. State of Punjab and Anr., AIR 2009 SC 2792; Guriya @ Tabassum Tauquir and Ors. Vs. State of Bihar & Anr. AIR 2008 SC 95; Mohd. Shafi v. Mohd. Rafiq and Anr., AIR 2007 SC 1899(1); Michael Machado and another vs. Central Bureau of Investigation and another, AIR 2000 SC 1127(1).
5. Lastly, learned counsel for the petitioner contended that while issuing process, learned Trial Court has issued non-bailable warrant against the petitioner. According to him, at the first instance, learned Trial Court should have issued summons or bailable warrant whereas in the present case, the learned Trial Court has issued arrest warrant against the petitioner, therefore, warrant of arrest may be converted into bailable warrant. In order to substantiate his contentions, he has relied upon the judgment rendered by this Court in the case of Prakash Chandra & Ors. Vs. State of Rajasthan & Anr., 2013(1) Cr.L.R.(Raj.) 106.
6. Learned Public Prosecutor as well as learned counsel for Respondent No. 2/complainant-injured supported the order passed by the Trial Court and vehemently submitted that learned Trial Court has rightly passed the impugned order. There is sufficient evidence and compelling reasons for exercise of powers under Section 319 Cr.P.C. and learned Trial Court has rightly summoned the petitioner as accused in this case. Learned counsel for Respondent No. 2/complainant has also contended that since the case is for offence under Section 307 IPC, the learned Trial Court was certainly justified in issuing arrest warrant against the petitioner. Learned counsel for Respondent No. 2 further contended that entertainment of plea of alibi cannot be raised at this stage. The accused can prove the said plea by leading evidence during trial. This Court cannot record the finding on plea of alibi prior to the Trial Court. In support of his contentions, learned Counsel for Respondent No. 2 has relied upon judgment delivered by the Honble Supreme Court in the case of Rajendra Singh Vs. State of U.P. And Another, (2007) 7 SCC 378.
7. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and perused impugned order and scanned through the material available on record.
8. The Trial Court while passing the impugned order considered the relevant facts inter alia has observed as under:
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?? ??? ???????? ?????? ?? ?? ?? ???? ?? ????? ?? ?? ?? ?????? ??? ???? ?? ???? ?? ???? ?? ????? ???????? ?? ?????? ????????? ???? ??? ?? ???? ??????? ???? ?? ????? ?? ???????? ?????? ????? ???? ???? ???? 14-4-05 ?? ???? ?? ???? ?? ?? ????? ?? ?? ???? ???? ?? ???? ?? ???????? ?????? ?? ????? ???????? ?????? 17-3-03?? ????? ??? ??? ????? ?? ?? ???? ?? ?????? ???????? ?????? ???????? ??? ?????? ??????? ???? ?? ?? ???? ? ?? ????? ?? ??? ??? ??????? ???? ?? ?? ???????? ?? 17-3-03?? ????? ???????? ????? ?? ??????? ??? ??????? ?????? ? ??? ?? ?????? ??? ???? ??? ?? ?????? ?? ????? ?????? ?? ??????? ?? ??? ??? ??? ???? ?? ?? ??? ?? ???? ??????? ?? ??? ??? ?????? ????? ???? ??????? ?? ??????? ?? ?? ????? ?? ????? ???? ???? ???? ?? ???? ??????? ?? ??? ?? ??????? ??? ???? ??? ??????? ???? ?? ?? ???? ???? ???????? ?? ?? ??? ????? ?? ?? ??: ???????? ?????? ?? ??????? ???? ?????????? ?? ??? ???? ????? ???? ?? ??????? ??? ???? 148, 307, 325, 323/34 ??.??.??. ?? ????? ????? ??????? ???? ???? ???? ?? ?? ??? ?????? ??? ???? ?????????? ?? ??????? ?? ????? ??????? ???? 148, 307/34, 325/34, 323/34 ??.??.??. ?? ??????? ?? ???? ????? ??????? ???? ???? ???? ????
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??: ???????? ?????? ?? ??????? ???? 148, 307,325, 323/34 ??.??.??. ?? ???????? ????????? ?? ????????? ???? ???? ?? ???? ???? ???? ???? ???????? ?????? ????? ??????? ???? ?????? ?????? ???????? ????? ????????? ?????? ??? ??? ???? ?????????? ?? ??????? ???? ??????? ???? ???? ?? ???? ???? ???? ???"
9. Section 319 Cr.P.C. is a special provision which reads as under:
319. Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
10. The above provision seeks to meet an extraordinary situation. It although confers a power and wide amplitude, but is required to be exercised very sparingly before an order summoning an accused is passed. The Trial Court must form an opinion on the basis of the evidence brought before it that a case has been made out that such person could be tried with the other accused persons. There is no dispute with the legal position that even if a person had not been charge sheeted, he may come within the purview of the description of such a person as contained in Section 319 Cr.P.C.
11. In Sarabjit Singh And Another Vs. State of Punjab And Another(supra), Honble Supreme Court has observed in Para Nos. 14 to 17 as under:
14. Our attention, however, has been drawn to a Two-Judge Bench decision of this Court in Hardeep Singh v. State of Punjab and Ors.[JT 2008 (12) SC 7] wherein doubting the correctness of Mohd. Shafi(supra) two questions have been referred to a larger Bench, which are as under:
"(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?
(2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?"
Mr Mehta would also draw our attention to Bholu Ram v. State of Punjab and Anr.[JT 2008(9) SC 504]. Whereas Hardeep Singh(supra) is not a judgment in that sense of the term, in Bholu Ram(supra) the principal question which arose for consideration of this Court was as to whether an order passed under Section 319 of the Code can be recalled which was answered in the negative.
15. For the purpose of this case, it is not necessary to proceed on the basis that the decision in Mohd. Shafi(supra) should be applied on all fours.
16. We have noticed hereinbefore that Mohd. Shafi(supra) has been explained in Lal Suraj(supra) holding that a power under Section 319 of the Code can be exercised only on the basis of fresh evidence brought before it and not on the basis of the materials which had been collected during investigation particularly when a final form was submitted and the same had been accepted by the Magistrate concerned. There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi(supra) is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken.
17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi(supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. 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.
12. In the aforesaid case of Sarabjit Singh & Another(supra), Honble Apex Court has also observed in Para No. 18 as under:
18. The observation of this Court in Municipal Corporation of Delhi(supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.
13. In the case of Lal Suraj Alias Suraj Singh And Another Vs. State of Jharkhand, (2009) 2 SCC 696, the Honble Apex Court has observed about nature, scope and applicability of Section 319 Cr.P.C. and trial of persons not already arraigned as accused and held that power under Section 319 Cr.P.C. is required to be exercised very sparingly. Before order summoning such persons is passed, trial court must form an opinion on the basis of evidence brought before it that a case has been made out that such person could be tried together with the other accused. If on the basis of evidence produced before the trial court there was possibility of recording a judgment of conviction against the accused, the order can be passed under Section 319 Cr.P.C.
14. In the case of Ram Singh & Ors. Vs. Ram Niwas & Anr., 2009 (Suppl.) Cr.L.R.(SC) 581, Honble Apex Court has observed that for summoning the appellant therein as an accused, extraordinary powers can only be exercised on the basis of evidence brought on the record and from that evidence it appears that the concerned person has committed an offence. Mere existing of a prima facie case would not be sufficient to exercise the jurisdiction under Section 319 Cr.P.C. Word appears is important.
15. The important question before this Court is that whether in this case it appears from the evidence that any person(petitioner), not being the accused, has committed any offence, for which such person(petitioner) could be tried together with the other accused persons.
16. From the evidence of P.W.1 Samay Singh; P.W.2 Roop Singh; P.W.3 Hukum Singh; P.W.4 Puran; P.W.5 Bhagwat; P.W.6 Lekhraj; P.W.7 Jai Singh; P.W.8 Dr. Hari Singh; P.W.9 Ghasi Ram, Investigating Officer and impugned order passed by the Trial Court it is clear that upon consideration of the evidence brought by the prosecution, the Trial Court found itself satisfied about the prima facie case as alleged against the petitioner and the Trial Court, during the course of trial, reached to the conclusion that it appears from the evidence that the petitioner, not being the accused, has committed the alleged offences. Thus, after considering the evidence adduced, it appeared to the Trial Court that the petitioner has committed the offences alleged and the learned Trial Court has rightly summoned the petitioner in this case as additional accused invoking extraordinary jurisdiction under Section 319 Cr.P.C. and allowed the application filed by the Respondent No. 2/Complainant.
17. It is pertinent to note here that plea of alibi can be proved before the Trial Court by adducing the evidence during the trial by the accused-petitioner and at this stage no finding can be recorded by this Court with regard to plea of alibi, as already held by the Honble Supreme Court in the case of Rajendra Singh(supra).
18. In view of the aforesaid discussion, I do not find any error in the order dated 06.01.2010 passed by the learned Trial Court in allowing the application moved under Section 319 Cr.P.C. by the complainant/injured, but keeping in mind the principles enunciated by the Honble Apex Court in the case of Indra Mohan Goswami & Ors. Vs. State of Uttranchal & Ors., 2008(1) SCC(Cri.) 259, this Court is of the opinion that learned Trial Court should have ordered to issue bailable warrant against the petitioner and non-bailable warrant issued against the accused-petitioner deserves to be converted into bailable warrant. Hence, this Court converts non-bailable warrant issued against the petitioner by the learned Trial Court into bailable warrant in the sum of Rs. 40,000/-(Rupees Forty Thousand) for the appearance of the petitioner before the Trial Court. Learned counsel for the petitioner gives an undertaking to this Court that the petitioner shall appear before the learned Trial Court within a month.
19. In the result, the revision petition is disposed of with the above observations/directions. Stay application also stands disposed of.
(NARENDRA KUMAR JAIN-II),J.
Manoj.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
MANOJ NARWANI JUNIOR PERSONAL ASSISTANT