Vijaypal vs The State of Rajasthan and Another

Narendra Kumar Jain-II, J.—Heard learned counsel for the accused-petitioner, learned Public prosecutor appearing on behalf of Respondent No. 1-State as well as learned Counsel for Respondent No. 2/complainant and perused impugned order dated 04.03.2013 and the relevant documents placed before me during the course of arguments by the parties. This revision petition u/s 397 read with Section 401 Cr.P.C. has been filed against the order dated 04.03.2013 passed by Additional Sessions Judge No. 4, Bharatpur (hereinafter referred to as ''the Trial Court'') in Sessions Case No. 51/2012, whereby the Trial Court has issued process against the petitioner, while invoking its power u/s 319 Cr.P.C. for offences under Sections 307, 324, 326 IPC and ordered to summon the petitioner by bailable warrants in the sum of Rs. 5,000/-.

The concise facts of the case are that on 13.05.2010, an FIR No. 148/2010 was registered by the complainant Ghuran Singh @ Ghure at Police Station Kumher showing the date of incident as 09.05.2010 at 1.30 A.M. mentioning therein inter alia that when in the night his son Ravindra Kumar and Krishnaveer were sleeping with him in Nohara, then he heard the noise of some dogs who were barking and thereafter, he lighted the torch and then saw Vijay Gopal S/o. Man Singh; Sahab Singh S/o. Champa Lal; Meghshyam S/o. Champa Lal coming there. When he objected then the petitioner-accused through one hand grenade (Hathgola) on his chest and noise came and he received injuries towards his left side on the chest. Second hand grenade (Hathgola) was thrown by Sahab Singh which hit on his left hand. Third hand grenade (Hathgola) was thrown by Meghshyam. Thereafter all the three accused-persons ran away from there. The investigation in the matter started and after investigation, charge sheet was filed against accused Sahab Singh and Meghshyam and the case was committed to the Court of Sessions. The Trial Court framed charges against the accused-persons. Prosecution examined as many as eight witnesses. At that stage, an application u/s 319 Cr.P.C. was filed by the complainant Ghuran Singh @ Ghure for summoning the present petitioner Vijay Gopal as additional accused. Learned Trial Court after hearing the arguments, allowed the application vide impugned order dated 04.03.2013 and the petitioner was ordered to be added as an additional accused and summoned through bailable warrant. Being aggrieved by the impugned order dated 04.03.2013 passed by learned Trial Court, the accused-petitioner has preferred this revision petition.

Learned counsel for the accused-petitioner vehemently contended that impugned order passed by the learned Trial Court is patently illegal, improper, unjust and not sustainable, being contrary to the facts and material available on record. Learned Trial Court has invoked power u/s 319 Cr.P.C. without appreciating the evidence to the extent that whether there is any hopeful chance of conviction of the accused-petitioner. Learned counsel for the accused-petitioner further contended that the petitioner is a Government Teacher and he has nothing to do with any dispute. His Bhabhi used to contest Sarpanch elections in the village against Digambhar. Due to groupism, the dispute is going on and another dispute is in connection with the lands between Sahab Singh, Meghshyam and complainant, whose lands are adjacent to each other. In that back ground, complainant Ghuran Singh @ Ghure received some superficial burn injuries on his person and these were towards left side front of chest and left arm. The FIR was lodged after a great delay. Occurrence in this case alleged to have taken place on 09.05.2010 at 1.30 A.M. FIR was registered on 13.05.2010 at 9.30 A.M. and there is no explanation for delay in lodging the FIR. In these circumstances, it is clear that whole case of the prosecution is false and concocted against the petitioner. Learned Trial Court failed to note that this FIR was lodged after 3-4 days of the alleged occurrence and in that light, there is no chance of conviction of the petitioner. In these circumstances, there was no occasion for the learned Trial Court to proceed against the accused-petitioner in this case. From the injury report, it is clear that whatever injuries had been received by the complainant, those injuries were superficial burn injuries towards the left side of front chest and left arm. The complainant wanted to believe that hand grenade was thrown on the chest but no injury was received by the hand grenade. Thus, the allegations leveled against the petitioner are totally false. Learned Trial Court has not properly considered that there is no material to show that the recovered articles which is said to be of hand grenade (Hathgola) neither proved by the FSL Department till today nor any evidence has come forward from the Explosive Department. If hand grenade would have been thrown then some injuries of small pallets could have been received by the complainant-Respondent No. 2. So, in these circumstances, there is no chance of conviction of the petitioner, but despite that learned Trial Court has committed an illegality in taking cognizance against the petitioner. Independent witnesses have totally denied of hearing of any blast of any article. Thus, there was no occasion for the learned Trial Court to take cognizance against the petitioner in this case and the impugned order passed by the learned Trial Court is bad in the eyes of law, hence, liable to be quashed and set aside. Learned counsel for the petitioner, in support of his arguments, placed reliance on the decision rendered by Hon''ble Supreme Court in the case of Sarabjit Singh and Another Vs. State of Punjab and Another,

Learned Public Prosecutor as well as learned counsel for Respondent No. 2/complainant-injured supported the order passed by the Trial Court and vehemently submitted that learned Trial Court has rightly passed the impugned order. There is sufficient evidence and compelling reasons for exercise of powers u/s 319 Cr.P.C. and learned Trial Court has rightly summoned the petitioner as accused in this case and as per the evidence available on record, an extra ordinary case for exercise of jurisdiction u/s 319 Cr.P.C. is made out. Looking to the evidence available on record, there is chance of conviction of the accused-petitioner in this case at this stage. So, they prayed that instant revision petition has no force and merit and the same deserves to be dismissed.

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 placed before me during the course of arguments by learned counsel for the parties.

The Trial Court while passing the impugned order considered the relevant facts and inter alia has observed as under:

Section 319 Cr.P.C. is a special provision which reads as under:

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.

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.

In Sarabjit Singh And Another Vs. State of Punjab And Another (supra), Hon''ble Supreme Court has observed as under:

The extent of the power of a Sessions Judge to summon persons other than the accused to stand trial in a pending case came up for consideration before this Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, Therein, this Court while holding that the provision confers a discretionary jurisdiction on the court added "this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.

....

Our attention, however, has been drawn to a two-Judge Bench decision of this Court in Hardeep Singh Vs. State of Punjab and Others, wherein doubting the correctness of Mohd. Shafi Vs. Mohd. Rafiq and Another, 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 u/s 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?

Mr. Mehta would also draw our attention to Bholu Ram Vs. State of Punjab and Another, 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 u/s 319 of the Code can be recalled which was answered in the negative.

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 @ Suraj Singh and Another Vs. State of Jharkhand, holding that a power u/s 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.

There is no gainsaying that the power u/s 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, 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?

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.

In the aforesaid case of Sarabjit Singh & Another (supra), Hon''ble Apex Court has also observed as under:

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.

Whether a higher standard be set up for the purpose of invoking the jurisdiction u/s 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.

The important question before this Court is that whether in this case it appears from the evidence that any person (petitioner), not being the accused, has committed any offence, for which such person (petitioner) could be tried together with the other accused persons.

From the statement of P.W. 1 Ghuran Singh @ Ghure, complainant; P.W. 3 Krishna Shankar and other witnesses of the prosecution, facts and circumstances of the case, Parcha Bayan of complainant-injured dated 12.05.2010 recorded at S.M.S. Hospital at Jaipur, medical evidence and the facts mentioned in the impugned order passed by the learned Trial Court, it is clear that upon consideration of the evidence brought by the prosecution, the Trial Court found itself satisfied about the prima facie case as alleged against the petitioner and the Trial Court, during the course of trial, reached to the conclusion that it appears from the evidence that the petitioner, not being the accused, has committed the alleged offences. Learned Trial Court has found that against present petitioner, there is extra ordinary case. Thus, after considering the evidence adduced, it appeared to the Trial Court that the petitioner has committed the offences alleged and the learned Trial Court has rightly summoned the petitioner in this case as additional accused invoking extraordinary jurisdiction u/s 319 Cr.P.C. and allowed the application filed by the Respondent No. 2/Complainant supported by the prosecution.

In view of the aforesaid discussion, I do not find any error in the order dated 04.03.2013 passed by the learned Trial Court in allowing the application moved u/s 319 Cr.P.C. by the complainant/injured. In the result, present revision petition has no merit and the same is, accordingly, dismissed. Stay Application No. 604/2013 also stands dismissed.