IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Ram Khiladi & Another Vs. State of Rajasthan (S. B. Criminal Revision Petition No.1560/2009) S. B. Criminal Revision Petition under Section 397 read with 401 Cr.P.C. against the order dated 6-10-2009 passed by Additional Sessions Judge, (Fast Track No.3) Bharatpur Camp Bayana in Sessions Case No.48/2009 whereby the learned Judge has issued process against the petitioner under section 319 Cr.P.C.. Date of Judgment: March 31st, 2010 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. D.G. Chaturvedi, for the petitioners. Mrs. Alka Bhatnagar, Public Prosecutor for the State. BY THE COURT: Aggrieved by the order dated 6-10-2009, passed by the Additional Sessions Judge, (Fast Track No.3), Bharatpur, Camp Bayana, whereby the learned Judge has accepted the application under Section 319 Cr.P.C. and issued process against the petitioners, the petitioners have challenged the same before this Court. 2. Brief facts of the case are that on 30-5-2007 one Bhagwan Singh submitted a report at Police Station Bayana with regard to an incident which occurred on 27-5-2007 around 7.00-8.00 AM. According to the report, while Bhagwan Singh and his son, Pradeep were sitting inside their house, the present petitioners along with Biri Singh, Sahib Singh, and Gyan Singh tresspassed into their house. The petitioner No.1, Ram Khiladi, an ex-Sarpanch, exhorted others to kill complainant and his son. Consequently, Rameshwar hit Pradeep on his head with a lathi (bamboo stick), Jasmat also hit Pradeep near his ear with a lathi. Resultantly, Pradeep became unconscious. On the basis of this report a FIR, FIR No.273/2007, was chalked out for offences under Sections 147, 148, 149, 452, 323, and 504 IPC. However, as the x-ray showed presence of fracture in parietal region, subsequently Section 307 IPC was added. After completing the investigation, the police submitted challan against Rameshwar, Biri Singh, Sahib Singh and Gyan Singh for the offences under Sections 323, 452, and 307/34 IPC. But did not file charge sheet against the present petitioners. During the course of trial, the learned trial Judge recorded testimony of seven witnesses, P.W.1 to P.W.7. Thereafter, the learned A.P.P. submitted an application under Section 319 Cr.P.C. Vide order dated 6-10-2009, the learned trial Judge accepted the application and issued process against the petitioners. Hence, this petition before this Court. 3. Mr. Chaturvedi, the learned counsel for the petitioner has contended that power under section 319 Cr.P.C. is a vast one, therefore it should be used sparingly. According to the complainant himself there is animosity between the complainant and the accused party. Moreover, the allegation against the petitioner No.1 is that he exhorted others to commit the crime, and no other overt act has been assigned to him. Thus, the petitioners are being implicated falsely. Secondly, the falsity of the case is also apparent by the fact that there is delay in lodging of the FIR. Although the incident is alleged to have occurred on 27-5-2007, but the FIR was not lodged till three days later, as it was lodged on 30-5-2007. Therefore, a story was cooked up by the complainant against the present petitioners. The learned Judge has ignored this aspect of the case. Lastly, the power under section 319 Cr.P.C. Should be exercised only when the court is convinced that there is likelihood of conviction of petitioners. 4. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has argued that there is sufficient evidence against both the petitioners. For, both of them were named by the complainant in the FIR. During recording of the evidence, the injured has clearly stated that while petitioner No.1 had exhorted others to kill him and his father, the petitioner No.2 Jasmat hit him over the head with a lathi. Thus, the evidence exists on record, which is sufficient to convict the petitioners. Secondly, the complainant has given cogent reasons for the delay in lodging of the FIR. Since, a young son was badly injured, naturally the whole family was involved in looking after his medical needs. Because of the fracture on his head, the injured was referred to the SMS Hospital at Jaipur. The family had to rush there. Therefore, the delay in lodging FIR has been explained properly. Thus, the delay in lodging of the FIR is not fatal to the prosecution. Thirdly, the power under section 319 Cr.P.C. is akin to the power under section 190 read with 204 Cr.P.C. At the stage of Section 319 Cr.P.C. the court is required to see if it appears that the person was involved in the commission of crime, but the person has not been chargesheeted by the police. The court merely has to see whether prima facie case does exist against the alleged culprit or not. Therefore, at the stage of Section 319 Cr.P.C. the court is not required to meticulously analyse the evidence. Lastly, criminal justice system is meant not only for acquitting the innocent person, but most importantly for punishing the perpetrator of the crime. Considering the fact an attempt to commit murder was made, considering the fact that the petitioners were alleged to be the perpetrators of the crime, the power under Section 319 Cr.P.C. has rightly been invoked to put the petitioners on trial. Hence, the learned Public Prosecutor has supported the impugned order. 5. Heard the learned counsel for the parties, considered the material available on record, and examined the impugned order. 6. Section 319 Cr.P.C. reads as under:- 319. 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 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.” In Annamma Cherian Vs. State of Karala [1990 Cr.L.J. 1796] Kerala High Court (Hon'ble K.G. Balakrishnan J. as His Lordship then was) had occasion to analyze Section 319 Cr.P.C. It was observed as under:- (Para 4) “Section 319 says that if in the course of inquiry into, or trial of, an offence, it appears from the evidence that any person other than the accused who are already on party array 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. Sub-sec.(2) of S.319 further says that if such person is not attending the court the Court may arrest him and summon him for the purpose of proceeding against him. Sub-sec.(3) of S.319 empowers the Court to detain such person for the purpose of any inquiry or trial of the offence which he appears to have committed. Sub- sec4(1)(a) of S.319 says that proceedings in respect of the person who is newly added as the accused shall be commenced afresh and the witnesses be re-heard. Sub- sec4(1)(b) of S.319 raises a legal fiction that the case may proceed against the newly added accused as if such person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” In Guriya @ Tabassum Tauquir Vs. State of Bihar [J.T. 2007(11) SC 438] the Apex Court had occasion to analyse Section 319 Cr.P.C. and it was observed as under:- “Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. 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 Section 319 contemplates 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 upon which 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.” Section 319 CrPC was also subject matter in Y.Saraba Reddy Vs. Puthur Rami Reddu [J.T. 2007(6) SC 460] and the Apex Court propounded as follows:- (Para 12) “The trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of material available in the charge sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence.” (Emphasis Supplied) A bare look at Section 319 Cr.P.C. reveals that it empowers a court to summon a person if the evidence produced before the court, it appears that a person has committed an offence, and if the said person has not been charge sheeted by the investigating agency. 7. Undoubtedly, the power under Section 319 Cr.P.C. is vast one. Although vast power should be exercised sparingly, but while exercising the power, the trial court should be aware of the very purpose for which the courts have been established. Although every person is presumed to be innocent, but it is the duty of the trial court to adjudge the innocence or guilt of a person. In grave offences, in case there is sufficient evidence to indicate or to point towards the involvement of a person, who has not been chargesheeted by the police, ordinarily the court should proceed against him. The guilt and involvement of a person in grave offences should not be overlooked on the basis of hyper-technicalities and should not be ignored by myopic vision. For, the purpose of criminal justice system is to protect the society from those persons who violate the law and pose a threat to the society at large. The protection of the society from offenders is foundation of raison d'etre (reason to be) of the criminal courts. Therefore, if there is sufficient evidence against a person, the trial court would be justified for proceeding against such a person. 8. Criminal Justice System has been considered by the Apex Court in the case of Rajendra Singh Vs. State of U.P. (2007) 3 SCC (Cri) 375 and observed as under:- The power under Section 319 Cr.P.C. is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purpose of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that Cr.P.C. has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by Section 319 Cr.P.C. It is a salutary power enabling the discharge of a court's obligation to the society to bring to book all those guilty of a crime. 9. While applying its judicious mind on an application under Section 319 Cr.P.C., the trial court cannot go into microscopic discussion of the evidence. It is required to see the existence of a strong prima facie case against the alleged accused. At the initial stage of proceeding against the person, the trial court is not concerned with the issue whether the trial would result in a conviction or not. Since the provision of Section 319 (4) (a) envisages a fresh trial for the newly added accused, fresh evidence needs to be recorded, the evidence so recorded has to be discussed and debated by the trial court. Thus the trial court is not required to meticulously discuss the evidence while exercising the power under section 319 Cr.P.C. 10. In the present case, a perusal of the testimony of complainant Bhagwan Singh P.W.1, Pradeep Kumar P.W.2, Banwari Lal P.W.3, Shyam Singh P.W.4, Sushila P.W.5, who were eyewitnesses of the incident, clearly shows that the petitioner No.1, Ram Khiladi not only exhorted other co-accused, but also kicked Pradeep. Moreover, in their testimony they have claimed that the petitioner No.2, Jasmat had assaulted Pradeep with a lathi. Thus, a prima facie case does exist against both the petitioners. 11. In Section 319 Cr.P.C. the legislature in its wisdom has used the word “appears”, it has not used the word “satisfied”. Thus at the stage of Section 319 Cr.P.C., the trial court has merely to see whether prima facie case does exist against the alleged accused or not. The power under Section 319 Cr.P.C. is infact akin to the power under Section 190 read with 204 Cr.P.C. The Court is required to apply its judicious mind to see, if there is possibility of alleged persons having committed offence or it. If prima facie case does exist, than the court is required to issue process. However, Section 319 (4) (a) Cr.P.c. prescribes for a denovo trial for the newly added accused. It would be in the fitness of thing to add the accused, and to record the evidence against him during the continuation of original trial against the other co-accused. In case denovo trial were to commence after the completion of original trial, valuable time of the court would be wasted in re-recording the entire evidence. Considering the burden of litigations on the trial court, the trial court is to save its precious time. Therefore, the learned trial court was justified in issuing process against the petitioners. 12. In the instant case learned trial court was satisfied on the evidence adduced before it that the present petitioners, who had not been arrayed as accused, should face the trial. The order passed by learned trial court against the present petitioners under section 319 CrPC is perfectly legal and this court approve of the same. 13. Considering the fact that an attempt to commit murder was made, considering the fact that sufficient prima facie does exist against the present petitioners, there is neither any illegality, nor any perversity in the impugned order. 14. Therefore, the revision petition being devoid of merit is, hereby, dismissed. ( R.S. CHAUHAN ) J. arn/