Banni and Others vs State of Rajasthan

Ashok Parihar, J.—On a FIR being lodged, the police, after investigation, filed chargesheet against five persons namely; Banni @ Banne Singh, Jagdish Padani, Hukam and Vijay. Banni @ Banne Singh was charged for the offence under sections 306, 498-A and 201 IPC, whereas, other accused were charged of or an offence u/s 201 IPC only.

Subsequently, the complainant filed a complaint before the trial court on 17.2.2000 against four petitioners, alleging offence against them under sections 304-B, 306, 120-B and 201 IPC, on the ground that the police, while making the investigation, has not recorded the statements of material witnesses and even the statements recorded by the police, u/s 161 Cr. P.C. have not been correctly recorded.

On receiving the complaint, the trial court recorded the statement of some of the witnesses produced on behalf of the complainant. Thereafter, the trial court came to the conclusion that, prima facie, a case for the offence under sections 306, 120-B, 498-A and 201 IPC is made out against the petitioners. While taking cognizance against the petitioner No.2. 3 and 4 also, vide order dated 11.7.2000, the trial court issued summons for the petitioners No.2, 3 and 4. The order dated 11.7.2000, passed by the trial court, is under challenge in this revision petition.

Mr. S.S. Sunda, learned counsel for the petitioners, while heavily relying on the judgment of the Supreme Court in the case of "Kishore Singh Versus State of Bihar" reported in 2001 Cr LJ 123 and the judgment of this Court, in the case of" Sukhdas & ors. Vs. State of Rajasthan" reported in 2001 Cr LR (Raj.) 364, has submitted that the police, after investigation, once having submitted chargesheet against some accused, trial court has no jurisdiction to take cognizance against other accused against whom no chargehseet has been filed. The submission of Mr. Sunda has been that it is only u/s 319 Cr PC that the Sessions Court has the powers to issue process for other co-accused.

Mr. Biri Singh, learned counsel for the complainant, on the other side", while relying on the judgment of the Supreme Court in the case of ''''Rajinder Prasad Vs. Bashir & Ors." reported in 2001 (4) Crimes 1 (SC) and Raghubans Dubey Vs. State of Bihar, , has submitted that the Magistrate has the powers to take cognizance u/s 190 Cr PC after making preliminary inquiry u/s 200 Cr PC.

After having considered the submissions made by learned counsel for the parties, I have carefully gone through the material on record, the order impugned and also the judgments cited at the Bar.

Admittedly, the police, after investigation, filed chargesheet against five persons only. The accused-husband of the deceased was charged for the offence under sections 306, 498-A, and 201 IPC, whereas, other co-accused Vijay, Hukam, Padam and Jagdish were charged for the offence u/s 201 IPC only. It was only on a complaint made by the complainant before the trial court, with certain allegations in regard to deficiencies made in the investigation, the trial court recorded the statements of some more witnesses. After considering the statements recorded by the trial court and coming to the conclusion that, prima facie, there is material for proceeding, against other co-accused named in the complaint, the trial court took cognizance against the present petitioners vide the impugned order.

In my opinion, the trial court has not committed any error or illegality in the present matter so as to call for any interference of this court in this revision petition. The provisions of section 319 Cr PC are entirely different and if can be made applicable in different context. In the present case, the trial court has only taken cognizance and, after the petitioners been produced before the trial court, the process of committing the case to the Court of Sessions is yet to be done u/s 209 Cr PC.

The judgments cited by the learned counsel for the parties are distinguishable in the facts and circumstances of the present case.

Accordingly, I find no merit in this revision petition and the same is dismissed.

While issuing summons by the order impugned in the present revision petition, the trial court has issued warrants of arrest for petitioners No.2, 3 and 4 and the same could not be executed in view of the interim order passed by this Court. In the interest of justice, I now deem it proper to direct the petitioners No.2, 3 and 4 to surrender before the trial court on 12.3.2002 and also file a proper application for bail, which may be decided by the court concerned in accordance with law. Till then, the arrest warrants issued against the above petitioners No.2. 3 and 4 namely; Smt. Kamla wife of Jagdish, Smt. Jhunthi; wife of Prakash and Jagdish son or Prakash respectively may not be executed. Copy of this order to sent to the trial court immediately.