[1] SB CRIM. MISC. PET. NOS. 2349/2009 & 2350/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR O R D E R (1) S.B. CRIMINAL MISC. PETITION NO. 2349/2009 DHARAM SINGH Vs. STATE OF RAJASTHAN & (2) S.B. CRIMINAL MISC. PETITION NO. 2350/2009 RAJU LAL & ORS. Vs. STATE OF RAJASTHAN Date: 07.12.2009 HON'BLE MR. JUSTICE K.S. RATHORE Mr. S.K. Jain, Advocate for the petitioners. Mr. Amit Punia, Public Prosecutor for the State. Mr. Jitendra Pandey, Advocate for the complainant. **** S.B. Criminal Misc. Petition No. 2349/2009 has been preferred by petitioner Dharam Singh against the order dated 05.09.2009 passed by the Additional Sessions Judge, Gangapur City in Sessions Case No. 05/2009, by which the application moved by the prosecution under Section 216 Cr.P.C. has been allowed and while amending charges against the petitioner, ordered to frame the charges against the petitioner for the offence under Sections 147, 148, 302 read with Section 149, 120-B IPC. Another connected petition i.e. S.B. Criminal Misc. Petition No. 2350/2009 has been preferred by petitioner Rajulal and others, against the same order dated 05.09.2009 passed by the Additional Sessions Judge, Gangapur City in Sessions Case No. 05/2009, by which the application moved by the prosecution under Section 319 Cr.P.C. has been allowed and while summoning the accused-petitioners [2] SB CRIM. MISC. PET. NOS. 2349/2009 & 2350/2009 through bailable warrants, framed the charges against the petitioners for the offence under Sections 147, 148, 302 read with Section 149, 120-B IPC. Since both the misc. petitions are directed against the same order dated 05.09.2009 whereby the applications under Sections 216 and 319 Cr.P.C. have been allowed, therefore the same have been heard together and are being decided by this common order. The main submission of the learned counsel for the petitioners is that the trial Court has seriously erred in allowing the application under Section 216 Cr.P.C. vide order impugned dated 05.09.2009 as it has not taken into consideration the fact that in this case from bare perusal of the FIR as well as from the evidence came on record during investigation, prima-facie no offence, as alleged, is made out against the petitioners. Further the trial Court has seriously erred in not considering the fact that from the evidence available on record and from the statements of the witnesses recorded so far by the trial Court, there is no evidence against the petitioner regarding commission of murder of Padma and the witnesses have given false and wrong statements. Similarly in S.B. Criminal Misc. Petition No. 2350/2009, the petitioners have challenged the order impugned dated 05.09.2009, whereby the application filed by the prosecution under Section [3] SB CRIM. MISC. PET. NOS. 2349/2009 & 2350/2009 319 Cr.P.C. has been allowed and submitted that the trial Court has committed serious error or law in summoning the accused-petitioners through bailable warrants and framed charges against them under Sections 147, 148, 302 read with 149, 120-B IPC. It is further contended that after thorough investigation the police did not find any evidence against the petitioners and has not filed challan against them and in these circumstances, the order impugned dated 05.09.2009 deserves to be quashed and set aside. In support of his submissions, the learned counsel for the petitioners placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Brindaban Das and Others Vs. State of West Bengal, reported in 2009 R.C.C.(SC) 130, wherein the Hon'ble Supreme Court while dealing with the provisions of Section 319 Cr.P.C. held that “Appellant directed u/S. 319 Cr.P.C. to appear before trial Court in murder case- One L already on trial- Earlier appellants were granted temporary bail and then u/S. 439 Cr.P.C. and later discharged from the case- Arrest warrants on refusal of summons u/S. 319 challenged in revision before High Court as being discharged on the same material earlier- High Court stayed arrest warrants with directions to surrender and seek bail.” Further power under section 319 Cr.P.C. when to be used, has been discussed by the Hon'ble [4] SB CRIM. MISC. PET. NOS. 2349/2009 & 2350/2009 Supreme Court in para Nos. 9 to 12. Learned counsel Mr. Jain also placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Lal Suraj @ Suraj Singh & Anr. Vs. State of Jharkhand, reported 2009 RCC(SC) 290, and given much emphasize on para Nos. 11,13, 14, 15, 21 and 22 of the judgment. In the aforesaid case, Hon'ble the Supreme Court has held that “Addition of other persons as accused-Exercise of discretion- To be only after legal evidence come an record wherefrom it appears that the concerned persons committed an offence for which such persons to be tried together with the accused who are also being tried- FIR registered against 7 persons under IPC/Arms Act/Explosive Substances Act- No charge- sheet filed and no cognizance taken against appellants- Trial court, relying on evidence of 2 out of 11 witnesses examined by prosecution to allow an application for summoning appellants in exercise of power under Section 319 revision whereagainst dismissed by High Court- No evidence on record to arrive at a satisfaction that there was a reasonable prospect of conviction of appellants- Principle of strong suspicion may be a criterion at the stage of framing charge as all materials brought during investigation required to be taken into consideration, but power under Section 319 to be exercised on the basis of fresh evidence brought before the court- Since on basis of evidence no [5] SB CRIM. MISC. PET. NOS. 2349/2009 & 2350/2009 possibility of recording conviction of appellants, impugned orders set aside.” The judgment delivered by this Court in the case of Rajpal & Ors. Vs. State of Rajasthan, reported in 2004(2) R.C.C. 962, has also been relied upon by the learned counsel for the petitioners, wherein this Court has held that “Cognizance taken on application of complainant- Offence of murder- By one judgment trial Judge convicted the accused 'D' and acquitted two other persons & also took the cognizance against petitioners- Trial completed- Evidence of last seen is not sufficient & chances of conviction are bleak- Held, order is not justified & set aside.” Similar view has been taken by this Court in the case of Virendra and Ors. Vs. State of Rajasthan, reported in 2006(3) R.C.C. 1572. Per contra, learned counsel for the complainant as well as learned Public Prosecutor appearing for the State have raised objection regarding maintainability of the present petition as the order passed by the trial Court on 05.09.2009 allowing the applications of the prosecution under Sections 216 and 319 Cr.P.C., is final in nature and revision could be filed against the order, but the misc. petition under Section 482 Cr.P.C. is not maintainable. In support of their submissions, the learned counsel for the complainant as well as [6] SB CRIM. MISC. PET. NOS. 2349/2009 & 2350/2009 learned Public Prosecutor have referred the judgment of the Hon'ble Supreme Court delivered in the case of Ram Pal Singh & Ors. Vs. State of U.P. & Anr., reported in 2009 Cri.L.J. 1553 and given much emphasize on para Nos. 14, 16 and 17 of the judgment, wherein the Hon'ble Supreme Court has held that “Summoning of additional accused- Pre- requisite- Satisfaction of Court from evidence about complicity of person not charged- Murder case- Appellants though named in F.I.R. not charged- Complainants, eye-witnesses also testifying as to their involvement in murder- Order issuing summons against appellants- Not liable to be interfered with.” They have also relied upon the judgment of this Court delivered in Shree Narain and Others Vs. State of Rajasthan & Another, reported in 2008(3) R.C.C. 1081. I have heard rival submissions of the respective parties and carefully gone through the order impugned dated 05.09.2009 passed by the Court below. I have also minutely scanned the judgments referred by the respective parties in support of their submissions. Learned counsel for the petitioner regarding maintainability of the petition, submits that under Section 482 Cr.P.C. this Court has ample power to entertain this petition also. [7] SB CRIM. MISC. PET. NOS. 2349/2009 & 2350/2009 Upon careful perusal of the order impugned dated 05.09.2009, it reveals that on the evidence of Kumari Ishu, cognizance was taken by the Court below and the post-mortem report also corroborates the evidence of witness Kumari Ishu. The judgments referred by the learned counsel for the petitioners are not applicable to the facts and circumstances of the present case and the judgments referred by the learned counsel for the complainant and the ratio decided by the Hon'ble Supreme Court squarely covers the present controversy. This Court find no illegality or error in the order impugned dated 05.09.2009 while exercising discretionary powers, on the basis of the evidence and the material available on the record. No interference whatsoever is required by this Court. Consequently, both the misc. petitions fail being devoid of merit and the same are hereby dismissed. The stay applications also stand dismissed. (K.S. RATHORE),J. /KKC/