1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.B.CRIMINAL MISC. PETITION NO. 863/2006 (Mangla Ram V/s State of Rajasthan & Ors.) Date of Order : 17/07/2007 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. Vinod Kumar Bhadu, for the petitioner. Mr. Ashok Upadhyay, P.P. Mr. S.D.Goswami for the respondents No.2 to 4. BY THE COURT:- By the instant criminal misc. petition under Section 482 Cr.P.C., the petitioner has challenged the order dated 29.5.2006 passed by Additional Sessions Judge, Bhadra, district Hanumangarh (for short 'the revisional court' hereinafter) whereby the revision petition filed by the respondents No.2 to 4 against the order dated 18.3.2005 passed by Additional Chief Judicial Magistrate, Bhadra (for short 'the trial court' hereinafter) in Criminal Original Case No. 436/03, was allowed and the order taking cognizance by trial court dated 18.3.2005 was set aside. I have heard learned counsel for the petitioner and 2 public prosecutor for the State. Perused the orders impugned passed by the courts below. The revisional court allowed the revision petition on the ground that the application under Section 319 Cr.P.C. seeking to arraign the respondents No. 2 to 4 not being the accused have committed the offence, has not been filed by the public prosecutor. In my view the complainant has the locus to move under Section 319 Cr.P.C. even without being moved by anyone, the Court suo motu can exercise the powers under Section 319 Cr.P.C. The language of Section 319 Cr.P.C. speaks in clear terms that 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. Thus, Section 319 Cr.P.C. does not provide that the application has to be moved by either complainant or by the public prosecutor. What is required is that it must appear to the Court during the course of inquiry or trial that an offence appears to have been committed from the evidence available before it by any person not being the accused and the Court may arraign such person as accused and try them with the accused facing trial. This controversy came to be considered by this Court 3 in Sita Ram Pareek Vs. State of Rajasthan and Ors. 2005 (2) Cr.L.R. (Raj.) 940 as also by Hon'ble Supreme Court in K. Pandurangan Vs. S.S.R. Velusamy and Anr., 2004 SCC (Cr.) 48 and in a recent decision of Hon'ble Supreme Court in Lok Ram Vs. Nihal Singh and Anr. 2006 AIR SCW 2129. In K. Pandurangan Vs. S.S.R. Velusamy and Anr. (supra) Hon'ble Supreme Court held as under :- “So far as the first question as to maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Under the provisions of the Code of Criminal Procedure, 1973 the Court has suo motu power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court.” In Lok Ram Vs. Nihal Singh and Anr. (supra), the Apex Court held as under :- “Power under S. 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word 'evidence' in S.319 contemplates that evidence of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence under which 4 the inquiry or trial was commenced. That would show that by virtue of sub-section (4) (1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.” In view of the law propounded by Hon'ble Supreme Court and the plain reading of Section 319 Cr.P.C., in my view, the revisional court fell in error in setting aside the order of the trial court passed on an application moved by complainant under Section 319 Cr.P.C. for arraigning the respondents 2 to 4 as accused sought to be tried with the accused already facing trial. In the result, the criminal misc. petition is allowed. The order impugned dated 29.5.2006 passed by Additional Sessions Judge, Bhadra, district Hanumangarh in Criminal Revision NO. 29/05 is set aside and the order dated 18.3.2005 passed by the trial court is restored. (H.R.PANWAR),J. rp