Rajasthan High Court - Jaipur
Vinod vs State Of Rajasthan & Ors on 8 February, 2012
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.Criminal Revision Petition No.612/2004. Vinod. VERSUS State of Rajasthan and Another. 08.02.2012 HON'BLE MR.JUSTICE DALIP SINGH Mr.Biri Singh Sinsinwar, Senior Counsel assisted by Mr.Rajesh Choudhary, for the petitioner. Mr.S.K.Mehla, Public Prosecutor.
Mr.Sushil Pujari on behalf of Mr.A.K.Gupta, for the respondent.
***** This revision petition has been filed by the petitioner Vinod Kumar challenging the order passed by the learned Additional Sessions Judge (Fast Track) No.5, Bharatpur-camp-Deeg dated 08.07.2005 in Sessions Case No.38/2005 whereby allowing the application under Section 319 Cr.P.C. the learned Additional Sessions Judge has ordered for taking cognizance against the petitioner Vinod Kumar along with the co-accused for the offence under Section 302 I.P.C.
The facts in brief are that a marg FIR No.4/1997 was registered and proceedings under Section 174 Cr.P.C. were entrusted to Shri Radheyshyam Sharma, A.D.M., Deeg for holding an enquiry. The aforesaid proceedings were commenced as a consequence of the fact that Smt.Kamla wife of Krishan Gopal Shukla, aged 25 years died in unnatural circumstances on account of having been found hanging from the ceiling fan in her in-laws place. After the report was submitted, the police registered a case and challan was filed against Smt.Heero Devi, the mother-in-law. The charge was framed by the learned trial court for the offence under Section 306 I.P.C. which was denied by the accused Smt.Heero Devi and she sought trial. During the course of trial when the prosecution witnesses were being examined an application under Section 319 Cr.P.C. came to be filed pointing out that the prosecution witnesses had stated about the involvement of the petitioner Vinod Kumar and he was responsible for having murdered the deceased by hanging.
On the basis of the above, the learned trial court on consideration of the application by the impugned order dated 08.07.2004 on consideration of the evidence taken on record by way of the statement of PW-4, the Magistrate who conducted the proceedings under Section 174 Cr.P.C., his report Exhibit P-13 and the statement of PW-10, the daughter of the deceased found that there was sufficient ground for proceeding against the petitioner Vinod and Smt.Heero Devi under Section 302 I.P.C. and took cognizance for the offence under Section 302 I.P.C.
Learned counsel for the petitioner submitted that in the instant case since the learned trial court had only taken cognizance initially for the offence under Section 306 I.P.C. and the co-accused had been charged for the offence under Section 306 I.P.C. as such cognizance under Section 302 I.P.C. against the petitioner by allowing the application under Section 319 Cr.P.C. could not have been taken.
With a view to consider the aforesaid it is necessary to look at the provisions of Section 319 Cr.P.C. The provisions of Section 319 Cr.P.C. read as follows:-
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 trader arrest or upon a summon, 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 subsection (1) then-
(a) The proceedings in respect of such person shall be commenced afresh, and 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.
(Emphasis supplied.) A look at the above provision clearly goes to show that the Section 319 Cr.P.C. provides that during the course of any enquiry or trial of an offence if it appears from the evidence that any person not being the accused has committed any offence and for which such person could be tried together with the accused then in such a circumstance the court may proceed against such person for the offence which he appears to have committed.
Sub-section (1) and sub-section (3) of the Section 319 Cr.P.C. clearly show that it is open for the court to proceed against such person against whom during the course of trial, evidence has been brought before the court of his involvement in the commission of any offence which such person appears to have committed. The words which he appears to have committed are very significant and they have to be given their due meaning and not the restricted meaning which the learned counsel for the petitioner seeks to give on the basis of his submission that cognizance against the petitioner could not have been taken for the offence under Section 302 I.P.C. when co-accused is facing trial only in respect of the offence under Section 306 I.P.C. On a complete reading of the above provisions, it is clear that it is open for the court to take cognizance of the offence which such person appears to have committed. It may be in a given case that such person whose involvement is brought before the court by means of an application under Section 319 Cr.P.C. may have committed a lesser offence during the course of same transaction. In such a converse situation, it would be travesty of justice to charge a person who is brought before the court for an offence for which there is no allegation against him and the only evidence is with regard to the commission of a lesser offence.
In the light of the above, I find no merit in the aforesaid submission of the learned counsel for the petitioner and the aforesaid contention is accordingly rejected.
Learned counsel for the petitioner next contended that the order passed by the learned trial court dated 08.07.2004 does not spell out the reasons nor the learned trial court has discussed the evidence on the basis of which cognizance against Vinod, the petitioner herein, has been sought to be taken by the learned trial court.
From the order and more particularly para 2 thereof, I find that the learned trial court has spelt out the evidence which has been recorded in which the involvement of the petitioner has specifically been mentioned namely that of PW-4 and PW-10 and the Inquest Report (Exhibit P-13) submitted by the learned Magistrate. While it is true that the reasons are required to be given nonetheless if the learned trial court were to give the details and discuss the evidence on which the learned trial court seeks to rely upon then it may amount to prejudicing the case of the accused and forming an opinion before the trial against him has even commenced and he has even been heard.
With a view to satisfy myself, I have examined the evidence and I find that PW-10 has specifically named the petitioner Vinod though learned counsel for the petitioner sought to discredit the testimony of this witness being a child witness.
However, so far as the aforesaid contention is concerned, that is a matter to be appreciated by the learned trial court at the time of trial after the witness is examined and opportunity of cross examination has been afforded to the accused. Prima facie, I find that there is evidence of the involvement of the petitioner Vinod in the statement of PW-10 which has been relied upon by the learned trial court. This court has deliberately avoided a reference to the specific portion of the testimony of the witness (PW-10) so that the case of the petitioner may not be prejudiced, in case this court were to spell out the said evidence and state whether such evidence is enough to make out a case against the petitioner for the purpose of Section 319 Cr.P.C. it would affect the case of the accused hence this court refrains from doing so.
In the facts and circumstances, I find no merit in the revision petition. The revision petition accordingly stands dismissed. The stay order granted by this court on 02.03.2005 accordingly stands vacated. The interim order dated 22.07.2004 by which the non-bailable warrant against the petitioner had been ordered to be stayed stands vacated. The learned trial court is directed to issue fresh process against the accused petitioner, in case the accused petitioner does not surrenders before the learned trial court on or before 27.02.2012. The learned trial court is free to proceed further in the matter in accordance with law. The record be returned to the learned trial court forthwith by special messenger.
The revision petition as well as the stay application stand disposed of.
(DALIP SINGH),J.
All corrections made in judgment/order have been incorporated in the judgment/order being emailed.
Solanki DS, P.A