Rajasthan High Court - Jaipur
Kailash Chandra vs State on 18 April, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. CR. REVISION PETITION NO. 744/2009 KAILASH CHANDRA VS. STATE OF RAJASTHAN & ANOTHER. DATE OF ORDER : 18.04.2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II Mr. S.S. Rathore, for the petitioner.
Mr. Laxman Meena, Public Prosecutor, for Respondent No. 1- State.
Mr. Mahendra Goyal, for Respondent No. 2.
Heard learned counsel for the petitioner, learned Public prosecutor appearing on behalf of Respondent No. 1-State as well as learned Counsel for Respondent No. 2.
2. This revision petition under Section 397 read with Section 401 Cr.P.C. has been filed against the order dated 19.01.2009 passed by Additional Sessions Judge(FT) No. 2, Jhunjhunu(hereinafter referred to as 'the Trial Court') in Sessions Case No. 9/2007, whereby the Trial Court has dismissed the application under Section 319 Cr.P.C. moved by the prosecution.
3. The concise facts of the case are that on 25.07.2006, the petitioner lodged a First Information Report at Police Station Udaipurwati(Jhunjhunu) on the basis of which the police registered a case as FIR No. 198/2006 dated 25.07.2006 for the offence under Sections 448, 323 IPC and after investigation filed charge sheet for the offences under Sections 323, 325, 307 IPC against the accused-persons before the Chief Judicial Magistrate, Udaipurwati from where the matter was committed to the Trial Court and is pending before the Trial Court. After framing of the charges, prosecution examined P.W.1 Dr. B.S. Meena; P.W.2 Kailash Chand and P.W.3 Smt. Shakuntala. As per the prosecution, the evidence adduced by the aforesaid witnesses involvement of Dinesh and Harinarain in the incident was clearly proved, therefore, an application under Section 319 Cr.P.C. was moved by the prosecution for impleading Dinesh and Harinarain as accused in the present case. Learned Trial Court after hearing the parties and considering the evidence available on record, vide order dated 19.01.2009 dismissed the application under Section 319 Cr.P.C. filed by the prosecution. Being aggrieved with the order dated 19.01.2009 passed by the Trial Court, the petitioner-complainant has filed present revision petition.
4. Learned counsel for the petitioner vehemently contended that the order passed by the Trial Court is illegal, improper and incorrect, therefore, the same deserves to be quashed and set aside. The impugned order suffers from non-application of judicious mind and non-exercise of powers envisaged under Section 319 Cr.P.C. Learned counsel for the petitioner submitted that learned Trial Court has ignored this aspect of the matter that P.W.2 is injured person and P.W.3 is eye witness of the case and on the basis of their evidence, the accused-respondent should have been made accused in this case and the impugned order passed by the learned Trial Court is liable to be quashed and set aside. It is submitted that such power can be exercised only on the basis of evidence adduced before the Court. In the present case from the statements of P.W.2 Kailash Chand and P.W.3 Smt. Shakuntala it is clear that Dinesh and Harinarain were involved in the incident as such they should have been arrayed as accused by the Trial Court. Learned counsel for the petitioner further contended that the Trial Court has seriously erred in dismissing the application under Section 319 Cr.P.C. on the ground that from the Injury Report and as per statement of P.W.1 Dr. B.S. Meena there is no injury of sharp edged weapon on the person of the injured as such statements of P.W.2 and P.W.3 are not corroborated with this evidence and therefore, both the persons Dinesh and Harinarain cannot be arrayed as accused persons in the present case. Learned Trial Court has ignored this aspect of the matter that PW2 Kailash Chand himself is injured and PW3 Smt. Shakuntala is eyewitness, as such on the basis of their evidence the said persons Dinesh and Harinarain should have been made accused in the case. It is further submitted that the Trial Court has not considered an important fact that both Dinesh and Harinarain were named in the FIR, but the police filed charge sheet only against accused Ashok and, therefore, by exercising powers under Section 319 Cr.P.C. both persons Dinesh and Harinarain should have been made accused in the case. Learned counsel for the petitioner further submitted that the Trial Court grossly erred in dismissing the application by holding that it is not an exceptional case where the powers under Section 319 Cr.P.C. should have been exercised, whereas in view of the evidence available on record, it is clear that both the persons Dinesh and Harinarain should have been impleaded as accused in the present case. Learned counsel for the revisioner-petitioner admitted that during the pendency of this revision petition, respondent Harinarain has died and his name has been deleted from this revision petition. Hence, present revision petition may be allowed and the impugned order dated 19.01.2009 passed by the learned Trial Court 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 Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr., AIR 2000 SC 1127; Mohd. Shafi Vs. Mohd. Rafiq and Anr., AIR 2007 SC 1899 and Brindaban Das and Ors. Vs. State of West Bengal, AIR 2009 SC 1248.
5. Learned counsel for Respondent No. 2 supported the order passed by the Trial Court and vehemently submitted that learned Trial Court has rightly passed the impugned order. Learned counsel for Respondent No. 2 submitted that as per the injury report and statement of P.W.1 Dr. B.S. Meena, there is no sharp edged injury on the person of the injured and statement of P.W.2 and P.W. 3 are not corroborated with the medical evidence, therefore, there is no illegality or error in the order passed by the trial court. In support of his arguments, he has relied upon decision of the Honble Apex Court in the case of Sarabjit Singh And Another Vs. State of Punjab And Another, (2009) 16 SCC 46.
6. The learned Public Prosecutor has left the matter to the discretion of the Court.
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 judgments and inter alia has observed as under:
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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. 15 to 19 as under:
15. Our attention, however, has been drawn to a two-Judge Bench decision of this Court in Hardeep Singh v. State of Punjab (2009) 16 SCC 785 wherein doubting the correctness of Mohd. Shafi (2007) 14 SCC 544 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?"
16. Mr Mehta would also draw our attention to Bholu Ram v. State of Punjab (2008) 9 SCC 140. Whereas Hardeep Singh is not a judgment in that sense of the term, in Bholu Ram 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.
17. For the purpose of this case, it is not necessary to proceed on the basis that the decision in Mohd. Shafi should be applied on all fours. We have noticed hereinbefore that Mohd. Shafi has been explained in Lal Suraj (2009) 2 SCC 696 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.
18. 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 MCD (1983) 1 SCC 1 is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken. 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 MCD been satisfied is the question?
19. 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. 22 and 23 as under:
22. The observation of this Court in MCD 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.
23. 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(sic sparing) 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, not being the accused, has committed any offence, for which such person could be tried together with the other accused persons.
16. From the above discussion and the perusal of impugned order passed by the Trial Court it is clear that upon consideration of the evidence brought by the prosecution, the Trial Court reached to the conclusion that there is no evidence against Harinarain and Dinesh on the basis of which, they can be summoned as additional accused invoking extraordinary discretionary jurisdiction and powers under Section 319 Cr.P.C. should be exercised very sparingly.
17. In view of the aforesaid discussion, facts and circumstances and evidence available on record, I do not find any error or illegality in the order dated 19.01.2009 passed by the learned Trial Court in dismissing the application moved under Section 319 Cr.P.C. by the prosecution.
18. In the result, present revision petition has no merit and the same is, accordingly, dismissed. Stay application also stands dismissed.
(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