Rajasthan High Court - Jodhpur
Govind Narain vs State And Anr on 3 October, 2019
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 143/2018
Govind Narain S/o Late Shri Rama Kishan, By Caste Agarwal,
R/o 14 Mohan Vilas, Jalam Vilas, Paota B Road, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan
2. Rajendra Parihar S/o Shri Vijendra Singh, 79 Narsingh
Vihar, Lal Sagar, Mandore Road, Jodhpur And Rajendra
Parihar Through Rambagas Bheekamdas Parihar, D-8,
Mandore Mandi, Jodhpur.
3. Dharmendra Bhandari S/o Shri Hastimal Bhandari, By
Caste Jain, R/o 173, Iind Polo Paota, Jodhpur And
Dharmendra Bhandari Through Narpat Trading
Corporation, Shop No.-G-1/15 And 16, Mandore Mandi,
Jodhpur.
4. Jugal Kishore Bhati Through Shri Kishan Jagdish Bhati,
Shop No.u-7, Mandore Mandi, Jodhpur.
5. Padamchand Mutha Through Padamchand Mutha &
Company, Shop No.c-2, Mandore Mandi, Jodhpur.
6. Jineshwar Kumar Tater Through Loonchand Jain And
Company, By Caste Jain, R/o Shop No.d-9, Mandore
Mandi, Jodhpur.
7. Shyamlal Bothra Through Bothra Tea Company, Shop
No.f-2/4, Mandore Mandi, Jodhpur.
8. Rajendra Prasad Chandak Through Lalit Kumar Chandak
And Company, Shop No.c-6, Mandore Mandi, Jodhpur.
9. Sureshchandra Goyal Thorugh Vidyaprakash Vinod Kumar
Agrawal, Shop No.b-14, Mandore Road, Jodhpur.
10. Gautamchand Jain Through Anil Trading Company, Shop
No.22 Jeera Mandi, Mandore Prangan, Jodhpur.
----Respondents
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Connected With
S.B. Criminal Revision Petition No. 142/2018
Govind Narain S/o Late Shri Rama Kishan, By Caste Agarwal,
R/o 14 Mohan Vilas Jalam Vilas, Paota B Road, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan
2. Sampat Raj Bardia S/o Late Shri Chunilal Bardia, By
Caste Oswal, R/o 53, Nehru Park, Jodhpur And Shah
Sampatraj Prakashchander, D-2, Krishi Upaj Mandi,
Mandore Road, Jodhpur.
----Respondents
S.B. Criminal Revision Petition No. 144/2018
Govind Narain S/o Late Shri Rama Kishan, By Caste Agarwal,
R/o 14 Mohan Vilas Jalam Vilas, Paota B Road, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan
2. Radheyshyam Kumawat S/o Late Shri Amratlal, By Caste
Kumawat, R/o 230, Shri Ram Nagar, Behind Transport
Office, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Govind Narain, petitioner, present
in person
For Respondent(s) : Mr. Mohd. Javed Gauri, Public
Prosecutor
Mr. Vinod Sharma, for respondent
Nos.2 to 10 in CRLR No.143/2018
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Mr. C.V.S. Shekhawat, for respondent
No.2 in CRLR No.142/2018
Mr. L.K. Purohit, for respondent No.2
in CRLR No.144/2018
HON'BLE MR. JUSTICE VIJAY BISHNOI
Order 03/10/2019 These revision petitions have been preferred by the petitioner under Section 397/401 Cr.P.C. against the order dated 28.10.2017 passed by the Sessions Judge, Jodhpur Metropolitan (for short 'the revisional court') in three separate revision petitions preferred on behalf of the private respondents whereby, the revisional court has allowed those revision petitions and set aside the order dated 04.03.2017 passed by the Addl. Chief Judicial Magistrate No.3, Jodhpur (for short 'the trial court') in Criminal Case No.95/15 whereby, the trial court while exercising powers under Section 319 Cr.P.C. summoned the private respondents to face trial in the above referred case along with other accused persons.
Brief facts of the case are that the petitioner filed a complaint before the concerned Magistrate stating therein that he is the proprietor of M/s Bajrang Trading Company situated at shop No.J-1/17, Krishi Upaj Mandi (Anaaj), Mandore Road, Jodhpur. The said shop was allotted to the petitioner in the year 1985 and the license was also issued to him for running trade in it by the 'Mandi' in accordance with (Downloaded on 04/10/2019 at 08:39:42 PM) (4 of 11) [CRLR-143/2018] law. It is further stated that in the year 1988, as the petitioner was not in good health, he decided to shift to Maharashtra for some time, however before going there, he informed about his ill health to accused persons Ashok Kumar Bothra and Manohar Lal Ladha, who requested the petitioner that since he is shifting to Maharashtra for health reasons, he may handover his shops to them so that they may take use of the same by putting their extra goods in it. Both of them also assured the petitioner that whenever he will return, they will handover the shops to him and in the meantime, they will regularly deposit the rent of the shops. The petitioner has further alleged that believing Ashok Kumar Bothra and Manohar Lal Ladha, he handed over keys of the shops to them on 5.12.1999 in the presence of his sons. It is further alleged by the petitioner that in the first week of February, 2000, he came to Jodhpur for some days and at that time, Ashok Kumar Bothra and Manohar Lal Ladha came to meet him at his residence when he was about to leave for Maharashtra, both the above named persons got his signatures on two blank papers on the pretext that applications are to be moved on his behalf for the electricity meter and for the purpose of depositing rent of the shops. The petitioner believing Ashok Kumar Bothra and Manohar Lal Ladha signed those blank papers and handed it over to them. It is further alleged that when in the year 2012, he returned to Jodhpur permanently and enquired about his shops then, he came to know that the shop No.J-1/17 was transferred in the name of Manohar Lal Ladha. The petitioner then obtained the necessary documents and found that the accused persons (Downloaded on 04/10/2019 at 08:39:42 PM) (5 of 11) [CRLR-143/2018] got his shop transferred fraudulently in the name of Manohar Lal Ladha by putting forged signatures of him on the relevant papers.
The petitioner named Manohar Lal Ladha, Vikash Garg, Radhey Shyam son of Poonam Chand, Murli Manohar, Sampat Raj Bardia, Poonamchand and Radhey Shyam Kumawat as accused in the complaint filed by him.
The Police Station, Mahamandir, Jodhpur after receiving complaint from the concerned Magistrate registered an FIR No.176/2013 and started investigation. After thorough investigation, the police found prima facie case for commission of offences punishable under Sections 419, 420, 467, 468, 471, 473, 474 and 120-B IPC against Manohar Lal Ladha, Vikas Garg, Radhey Shyam son of Poonam Chand and Murli Manohar, however, at the time of filing of charge-sheet Murli Manohar expired, therefore, no charge-sheet was filed against him and as Radhey Shyam was living abroad, investigation against him was kept pending under Section 173(8) Cr.P.C. and charge-sheet against two accused persons namely Vikas Garg and Manohar Lal Ladha was filed for the aforesaid offences.
After framing of charges against the above named two accused persons, statements of the complainant Govind Narayan and his son Pankaj Agarwal were recorded before the trial court as PW-1 and PW-2 and their cross- examinations were also completed.
At this stage, an application under Section 319 Cr.P.C. was moved on behalf of the petitioner with a prayer for summoning the private respondents to face the trial along (Downloaded on 04/10/2019 at 08:39:42 PM) (6 of 11) [CRLR-143/2018] with other accused persons. The trial court vide order dated 4.3.2017 allowed the said application and summoned the private respondents to face trial along with other accused persons.
Being aggrieved with the order dated 4.3.2017 passed by the trial court, the private respondents preferred three revision petitions before the revisional court and the revisional court after hearing the parties concerned allowed those revision petitions vide order dated 28.10.2017. Hence, these revision petitions.
The petitioner, present in person, has argued that the revisional court has grossly erred in allowing the revision petitions preferred on behalf of the private respondents. It is submitted that the trial court after taking into consideration the entire material available on record and the evidence adduced by the complainant and his son has rightly summoned the private respondents to face trial along with other accused persons. He has further argued that at the stage of summoning a person to face trial along with other accused person, the only requirement is that a prima facie case should exist against the person, who has not been charge-sheeted by the Investigating Agency despite material available against him. It is submitted that from the material collected by the police during the course of investigation and from the evidence of the complainant and other witnesses, it is clear that the private respondents along with other accused persons are instrumental in forging the signatures of the petitioner and, thereafter, on the basis of the said forged documents transferred the shop of the petitioner in favour of (Downloaded on 04/10/2019 at 08:39:42 PM) (7 of 11) [CRLR-143/2018] accused Manohar Lal Ladha and Vikas Garg. It is further submitted that the revisional court has not appreciated the material available on record against the private respondents in right perspective and has grossly erred in allowing the revision petitions preferred by them and also in setting aside the order of the trial court summoning the private respondents to face trial along with other accused persons. It is, thus, prayed by the petitioner, present in person, that the instant revision petitions may kindly be allowed and the order passed by the revisional court be set aside and the order passed by the trial court be restored.
Per contra, learned Public Prosecutor as well as learned counsels for the private respondents have opposed the prayer made by the petitioner and argued that the revisional court has rightly allowed the revision petitions filed by the private respondents and committed no illegality in setting aside the order passed by the trial court.
Learned counsels appearing for the private respondents have submitted that as a matter of fact, there is no iota of evidence available on record against the private respondents, which suggests their involvement in the commission of crime. It is further submitted that even some of the persons, whose names have not been figured in the complaint/FIR filed by the complainant, have been summoned to face trial simply because in the court statements, the petitioner gave a bald statement that all those persons are also involved in the commission of crime without specifying their exact role.
Learned counsel appearing for the private respondent - Radhey Shyam Kumawat has submitted that he was the clerk (Downloaded on 04/10/2019 at 08:39:42 PM) (8 of 11) [CRLR-143/2018] in the Krishi Upaj Mandi Samiti at the relevant time and was discharging the ministerial work in it and simply for that reason, he cannot be arraigned as an accused without there being any evidence of his involvement in the commission of crime. Learned counsel has submitted that the revisional court after carefully scrutinizing the material available on record and after taking into consideration the overall facts and circumstances of the case has rightly passed the impugned order and the same is not liable to be interfered with.
Heard learned counsel for the parties and perused the material available on record.
The principle of law regarding exercise of powers under Section 319 Cr.P.C. by the courts is well settled. The power under Section 319 Cr.P.C. is extraordinary and discretionary, which is to be exercised sparingly and only in those cases where circumstances of the case so warrant. Only where strong and cogent evidence is available against a person in the proceeding of the court, then only, the powers under Section 319 Cr.P.C. are to be exercised and the courts are not supposed to exercise such powers in a casual and cavalier manner.
It is also settled that the powers under Section 319 Cr.P.C. cannot be exercised only because the courts i.e. the Sessions Court or the Magistrate Court are of the opinion that some other persons may also be guilty of committing the offence. The test that has to be applied at the time of exercising powers under Section 319 Cr.P.C. is one which is more than prima facie case as exercised at the time of (Downloaded on 04/10/2019 at 08:39:42 PM) (9 of 11) [CRLR-143/2018] framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. It is also settled that before exercising powers under Section 319 Cr.P.C., the court is required to consider that strong evidence is available against a person and a person cannot be summoned merely on the ground that there is probability of complicity in the commission of crime.
In the present case, it is not in dispute that the private respondents Rajendra Parihar, Dharmendra Bhandari, Jugal Kishore Bhati, Padamchand Mutha, Jineshwar Kumar Tater, Shyamlal Bothra, Rajendra Prasad Chandak, Sureshchandra Goyal and Gautamchand Jain were not even named in the FIR. The petitioner also did not name the aforesaid private respondents when his statements were recorded by the police during the course of investigation, however, in the court statements, he has simply stated that all those persons are also instrumental in transferring of his shop in the name of Manohar Lal Ladha by fraudulent means. It is revealed that the above named persons were the members of a committee which has furnished the list of shop-keepers of the 'Mandi' to the concerned authority, which has allotted the shops to various shop-keepers. In the list furnished by the said committee, name of accused Manohar Lal Ladha was figured, but it is not in dispute that allotment of the shop in question was not made by the said committee and the same was made by some other authority. It is difficult to comprehend that simply because the list of 118 persons furnished by the said committee, of which the above named private respondents were members, contains the name of accused Manohar Lal (Downloaded on 04/10/2019 at 08:39:42 PM) (10 of 11) [CRLR-143/2018] Ladha, the said private respondents are also guilty of commission of offences such as forgery and cheating. As per the charge-sheet, the documents containing forged signatures of the petitioner were filed by the persons, who have already been charge-sheeted and not by the private respondents. During the course of trial, the petitioner made a very bald statement that the private respondents were also involved in the commission of crime, but except the said statement, no other evidence is available on record to suggest complicity of the private respondents in the commission of crime.
So far as private respondent Sampat Raj Bardia is concerned, the only allegation levelled against him is to the effect that when accused Manohar Lal Ladha and Ashok Kumar Bothra approached the petitioner to handover his shops to them, he was present at that time and except the said allegation, no specific role has been assigned to him. It has not been clarified that how he was involved in transferring of shops of the petitioner in the name of other accused persons on the basis of forged documents.
It is noticed that no credible evidence is available against the private respondent Radhey Shyam Kumawat and he cannot be treated as an accused in the case simply because he was the clerk at the relevant time in the 'Mandi'. The role of the private respondent Radhey Shyam Kumawat has not been explained in any manner and the petitioner has simply levelled allegation against him to the effect that when he approached Radhey Shyam Kumawat, neither he helped nor supplied information sought by him. Except the said (Downloaded on 04/10/2019 at 08:39:42 PM) (11 of 11) [CRLR-143/2018] allegation, specific role of Radhey Shyam Kumawat in the commission of crime has not been explained by the petitioner.
After carefully going through the order passed by the revisional court, I am of the opinion that the revisional court has rightly held that as per the decision of the Hon'ble Supreme Court rendered in the case of Hardeep Singh and Ors. Vs. State of Punjab and Ors., reported in 2014(3) SCC 92, at the time of exercising power under Section 319 Cr.P.C., the court is required to apply the test that more than prima facie case, as exercised at the time of framing of charge, is required to be available against a person before summoning him to face trial along with other accused persons.
In view of the above discussion, I do not find any illegality in the order passed by the revisional court.
Hence, these criminal revision petitions, being devoid of merits, are hereby dismissed. Stay petitions also stand dismissed.
(VIJAY BISHNOI),J ms rathore (Downloaded on 04/10/2019 at 08:39:42 PM) Powered by TCPDF (www.tcpdf.org)