Amritlal vs State of Rajasthan and Others

Prashant Kumar Agarwal, J—The accused-petitioner has filed this Criminal Misc. Petition under Section 482 Cr.P.C. against the order dated 29.6.2015 passed by the Additional Sessions Judge No. 3, Kota in Sessions Case No. 53/2013 whereby application under Section 319 Cr.P.C. filed by the complainant-respondent-Shri Jodhraj was allowed and cognizance was taken against the petitioner and one Shri Nand Kishore for offences under Sections 147, 148, 323/149, 307/149 and Section 302/149 IPC and both of them were ordered to be summoned through warrant of arrest.

Brief relevant facts for the disposal of this petition are that FIR No. 202/2010 came to be registered at Police Station Itawa (Kota Rural) for offences under Sections 147, 148, 302, 307, 341, 323, 324, 326 read with Section 149 IPC and Section 4/25 of the Arms Act on 18.9.2010 against accused-petitioner and some other persons named in the FIR on the basis of a written complaint filed by the respondent and after investigation charge-sheet was filed against one Shri Yogendra Meena only for offences under Sections 147, 148, 341, 323, 324, 326, 307, 302 read with Section 149 IPC and for offence under Section 4/25 of the Arms Act but charge-sheet was not filed against the petitioner with a finding that he was not involved in the incident. During the course of trial of the co-accused, statements of several material prosecution witnesses were recorded and on 10.1.2013 application under Section 319 Cr.P.C. came to be filed on behalf of the complainant-respondent and as already stated the same was allowed by the trial Court vide impugned order dated 29.6.2015.

Firstly, it was submitted by the learned counsel for the petitioner that before cognizance is taken against an accused under Section 319 Cr.P.C., notice is required to be issued and opportunity of hearing is also required to be given to him, but in the present case neither notice was issued to the petitioner nor opportunity of hearing was given to him before impugned order was passed and, therefore, the same is liable to be set aside on this ground alone.

In support of submissions, learned counsel for the petitioner relied upon the case of Jogendra Yadav and Others Vs. State of Bihar and Others(2015) 8 AD (SC) 373 : (2015) 3 MLJ(Cri) 448 : (2015) 3 RCR(Criminal) 935 : (2015) 8 SCALE 442 .

On the other hand, it was submitted by the learned Public Prosecutor that it is well settled legal position that opportunity of hearing is not required to be given to the accused before cognizance is taken against him and he can challenge the order of cognizance after such order is passed by the Court.

In para 9 of the aforesaid judgment Hon''ble Supreme Court has observed that an accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 of the Code of Criminal Procedure, is necessarily heard before being so added.

Hon''ble Supreme Court in the case of Popular Muthiah Vs. State represented by Inspector of Police, (2006) 6 JT 332 : (2006) 6 SCALE 417 : (2006) 7 SCC 296 : (2006) 3 SCR 100 Supp has observed that while the Magistrate directs further investigation or while a Sessions Judge exercises his jurisdiction under Section 319 of the Code of Criminal Procedure, an accused is not entitled to be heard; he is not as he has no right therefor and, thus, the question of hearing him at that stage would not arise.

A Bench of three Hon''ble Judges of the Supreme Court in the case of Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbhai Patel and Others, (2013) CriLJ 144 : (2012) 4 JCC 3105 : (2012) 10 JT 61 : (2012) 9 SCALE 671 : (2012) 10 SCC 517 : (2012) AIRSCW 5314 has held that the legal position is clearly well settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing.

Consistent view of Hon''ble Supreme Court is that accused has no right of hearing before cognizance for an offence is taken and process is issued against him. There is no difference whether cognizance is taken against an accused at the initial stage or under Section 319 Cr.P.C.

In view of the above, the aforesaid submission made on behalf of the petitioner being devoid of any merit is rejected.

Secondly, it was submitted by the learned counsel for the petitioner that for cognizance to be taken against a new accused under Section 319 Cr.P.C., the criteria to be adopted and followed by the trial Court is of more than prima facie case, but in the present case learned trial Court without proper appreciation of evidence produced during the course of trial has taken cognizance against the petitioner. It was further submitted that none of the eye witnesses produced by the prosecution has attributed any specific role of the petitioner in the incident and it is not the case of prosecution that he inflicted injury to the deceased.

On the other hand, it was submitted by the learned Public Prosecutor that trial Court after considering the evidence, so far produced by the prosecution, in a proper manner and after following the criteria laid down by Hon''ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab and Others etc. etc., AIR 2014 SC 1400 : (2014) CriLJ 1118 : (2014) 1 JT 412 : (2014) 1 SCALE 241 : (2014) 3 SCC 92 has taken cognizance against the petitioner and, therefore, there is no reason to interfere with the finding arrived at by the trial Court.

On consideration of submissions made on behalf of the respective parties and the material made available on record including the statements of prosecution witnesses so far recorded, copy of which has been made available on record and more particularly looking to the reasons recorded by the learned trial Court in support of the impugned order, I find that the same has been passed after considering the evidence in a proper manner and also following the criteria laid down by Hon''ble Court in the aforesaid judgment and, therefore, I find no illegality and perversity in it requiring interference by this Court.

Lastly, it was submitted by the learned counsel for the petitioner that at the first instance learned trial Court has issued warrant of arrest whereas it is well settled legal position that if cognizance is taken by a Court under Section 319 Cr.P.C. even for a grave offence at first instance, either summon or bailable warrant is to be issued and not the warrant of arrest.

Relying on the case of Vikas Vs. State of Rajasthan, (2014) 7 AD 731 : (2014) CriLJ 183 : (2013) 4 RCR(Criminal) 948 : (2013) 11 SCALE 23 : (2014) 3 SCC 321 , it was further submitted by the learned counsel for the petitioner that in this case cognizance under Section 319 Cr.P.C. was taken against the newly added accused for offences under Sections 363, 366-A, 120-B and Section 376(2)(g) IPC and he was ordered to be summoned through non bailable warrant but even then Hon''ble Supreme Court directed the trial Court to summon the accused through summons instead of non-bailable warrant.

On the other hand, learned Public Prosecutor submitted that looking to the gravity of the offence for which cognizance has been taken against the petitioner, no illegality or perversity has been committed by the learned trial Court even if at the first instance non-bailable warrant has been issued.

A three Judges Bench of Hon''ble Supreme Court in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, AIR 2008 SC 251 : (2007) 5 CTC 614 : (2007) 11 JT 499 : (2007) 12 SCALE 15 : (2007) 10 SCR 847 : (2007) AIRSCW 6659 , has held that the power being discretionary must be exercised judiciously with extreme care and caution. The Court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants, but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

It is thus clear that there is no total bar to issue non-bailable warrant against an accused even at the first instance. In the present case two persons died in the incident and, therefore, looking to the gravity of the offence for which cognizance has been taken against the petitioner, no illegality or perversity can be said to have been committed by the trial Court even if warrant of arrest has been issued at the first instance.

Consequently, the criminal misc. petition being meritless is, hereby, dismissed. The stay application also stands dismissed.