1 Likhma Ram Vs. The State of Rajasthan & Ors. S.B. CRIMINAL REVISION PETITION NO.411/2009 DATE OF ORDER : 15th May, 2009. HON'BLE MR. JUSTICE MANAK MOHTA Mr.C.S.Kotwani for the petitioner. Mr.A.R.Nikub , Public Prosecutor Mr.Vineet Jain for the respondents. This revision petition has been filed by the petitioner against the order dated 24.03.09 passed by the learned Additional Sessions Judge (Fast Track), No.2, Bikaner in Sessions Case No.114/2006 whereby the learned trial court has dismissed the application of the petitioner filed under section 319 Cr.P.C. for proceeding and summoning respondents No.2 to 10, as accused. Briefly stated, the facts of the case are that, on 14.01.06 petitioner Likhma Ram gave statement 'Parcha Bayan' at the PBM Hospital, Bikaner before the concerned police officer, wherein it was alleged that he had purchased a 2 plot about 10 to 11 years back, from accused Ram Kishan, after paying an amount of Rs.9,000/- and he is having possession over the land since its purchase and it is being used by him and his family members. The accused Ram Kishan wanted to get possession over the land by illegal way and in this respect Ram Kishan entered in the plot in the night along with other co-accused persons, namely, Bhani Ram, Dhan Raj, Ridha Ram, Devi Lal, Surja Ram, Punma Ram , Mukh Ram, Mangi Lal , Tola Ram, Kushla Ram, Purkha Ram, Sukh Ram, Ram Pyari , and Pushpa along with two or three other persons and they assaulted him and his family members by dangerous weapon and caused injuries. The petitioner has specifically stated in the 'parcha bayan' that the accused persons assaulted him and his family members to get forceful possession over the plot. An FIR No.16/2006 of this incident was registered at Police Station ,Jam Sar, under sections 307, 323, 341 , 147,148 and 149 IPC against accused persons and investigation started. During the course of investigation , statement of the petitioner and other injured persons were recorded by the investigation agency, in which it was found that some of the accused persons have 3 committed offences against the petitioner and his family members. After completion of the investigation, challan was filed against only five accused persons namely, Ram Kishan, Purkha Ram, Kushla Ram, Ram Pyari and Pushpa. Concluding their involvement in commission of crime , thereafter, case was committed to concerned Sessions Judge, where charges were framed. Accused did not plead guilty and claimed trial and prosecution started evidence. It is revealed from the record that after the recording of the statement of the informant and eye witnesses, an application under section 319 Cr.P.C. was filed by the petitioner , before the learned trial court, for proceeding and summoning present respondents No.2 to 10 as accused persons to be impleaded as co-accused. The said application was rejected by the learned trial court vide order dated 25.07.07 observing that there were no grounds for adding and summoning the respondents, further , with liberty to file fresh application , after completion of evidence of investigation officers. Being aggrieved by the said order of learned trial court, the petitioner challenged the same before this Court by way of revision, which was also dismissed vide order dated 21.11.07, with 4 liberty to the petitioner to file fresh application, after completion of evidence of investigation officers, as was directed by learned trial court. Further , the petitioner moved again an application, after recording of statements of investigation officers , under section 319 Cr.P.C. for taking cognizance and summoning of respondents No.2 to 10 to be arrayed as accused persons in the same trial. The learned trial court, vide its order dated 24.03.099, dismissed the application stating therein that there are no sufficient material to proceed and summon them along with present accused. Being aggrieved by the aforesaid order passed by the learned trial court, the petitioner has preferred this revision. Notice of this revision was issued to respondents , record of the case was perused and arguments were heard. During the course of arguments learned counsel for the petitioner submitted that the learned trial court has not properly considered and appreciated the material available on record and has erroneously passed the impugned order, that is liable to be quashed and set aside. Learned counsel for the petitioner further submitted that during trial of the case, the 5 prosecution witnesses have assigned the role played by respondent No. 2 to 10. He drew my attention towards the statements of concerned witnesses and on the strength of evidence , again submitted that there were sufficient grounds for taking cognizance and proceeding against the said respondents. The learned trial court , without proper consideration, much impressed by the statements of the investigation officers, has dismissed the application filed under section 319 Cr.P.C. It was also contended that there was no bar for taking proceedings against the respondents while existing earlier order dated 25.07.07 passed by the trial court and order passed by High Court , the learned trial court itself has given opportunity to file application, after recording the statements of the investigation officers. The learned counsel for the petitioner also cited judgments given in Lok Ram vs. Nihal Singh [(2006) 10 SCC 192], Y.Saraba Reddy vs. Puthur Rami Reddy [(2007) 4 SCC 773], Rukhsana Khatoon vs. Sakhawat Hussain [(2002) 10 SCC 661] Bholu Ram vs. State of Punjab [(2008) 9 SCC 140], and Girish Yadav vs. State of M.P. [{1996) 8 SCC186 ] in support of his contentions and submitted that at this stage, merit of the case 6 while taking proceeding against the respondents was not to be seen, the involvement in commission of crime was to be considered. Looking from this angle, it was urged that there were ample evidence to proceed against the respondents. The lower court failed to consider the material in its right perspective. Therefore, the impugned order dated 24.03.09 deserves to be set aside and the revision may be allowed. On the contrary, learned Public Prosecutor as well as the learned counsel appearing on behalf of respondent, refuted the contention and submitted that the learned trial court has thrashed the matter twice, to take proceeding against respondent No.2 to 10 but found no sufficient ground for adding and summoning them as accused persons. The learned trial court has dealt with the total evidence adduced during trial and again found that the witnesses have improved their earlier versions. It was also contended that the learned trial court has used its judicial discretion and has come to the conclusion that there were no compelling circumstances to summon said respondents. That was solely within his judicial discretion and that is not suffering from any defect, therefore , 7 that should be maintained. It was also contended that the power under section 319 Cr.P.C. are special powers and that should be used very sparingly and with caution. Merely showing presence and narration of name in the police report, are not sufficient ground for summoning the concerned person in the same trial. He also drew my attention towards the injury reports and further urged that looking to the number and nature of injuries sustained by the injured person, the allegations of the petitioner that all the accused took part in the incident, are not sustainable. The witnesses are not reliable and on their statements, the active involvement in commission of crime, is not established and ultimately they cannot be held responsible for any offence. That aspect is also required to be taken in to consideration. Thus, considering all facts, the learned lower court has rightly rejected the application. Learned counsel for the respondent also relied on the judgments given in Guriya alias Tabassum Tauquir & Ors. vs. State of Bihar & anr. [2008 R.Cr.D. 91(SC) , Lal Suraj @ Suraj Singh & Anr. vs. State of Jharkhand [2009 Cr.L.R. 8 (SC) 1 and Kailash vs. State of Rajasthan [(2009)1 SCC (Cri.) 1006 ]. Learned counsel further submitted that the petitioner has moved an application at earlier stage with similar prayer before the learned lower court , that was rejected on merit and that too was maintained by this Court. At that time, statements of all concerned witnesses, except the statements of I.Os. were on record and those statements have been considered and did not find compelling circumstances to add these respondents. Again , thereafter for the second time , considering the statements of the I.Os. and other material , the learned trial court did not find sufficient ground for summoning the respondents. Learned counsel for the respondent also submitted that presently the case is at the fag end of trial. The case is pending for recording of the statement of the defence witnesses. At this belated stage, prayer for summoning the other respondents as accused in the same trial, is not justifiable. There is no irregularity or illegality in the said order. 9 A prayer was made to dismiss the revision petition. I have considered the rival submissions and have perused the statements of witnesses and other material available on record and also perused the authorities cited by both the sides. The learned trial court , while passing the impugned order, has thoroughly considered the material available on record and after concluding the same, came to the conclusion that there are no solid ground for taking proceeding and summoning the respondents. The discretion used by the learned trial is not suffering from any illegality or irregularity. It is settled law that the power under section 319 Cr.P.C to summon other persons, than the charge sheeted persons, are the extra ordinary power. That should be used very sparingly and with great caution. In this case, the matter has been thrashed twice by the learned trial court vide previous order dated 25.07.07 after a detailed discussion over the statements of the witnesses, the trial court came to the conclusion that there were no compelling circumstances to summon the accused persons. Again vide impugned order, the court has come to the conclusion that there is no solid ground 10 for summoning the accused persons, the conclusions are based on the material. I have also perused the judgments cited by the learned counsel for the petitioner in case of Lok Ram (supra), wherein it has been observed that the private complainant can file application to summon persons found involved but that is not under dispute. In the case of Y.Subba Reddy (supra), it was observed that while disposing of the application under section 319 Cr.P.C., the evidence produced during trial is required to be considered. In this case also the learned trial court has discussed the evidence adduced during trial. Thus, this authority do not help contention of the petitioner. I have also considered the judgments given in other cases cited by learned counsel for the petitioner . In those cases, taking into consideration the material available on record , discretion was used by trial court . But looking to the facts and circumstances of the case and the discretion used by the learned trial court in not summoning respondents No.2 to 10, is not found illegal and irregular. Thus, these judgments do not help the contentions of the petitioner. On the contrary, the judgments cited by the learned 11 counsel for the respondent are relevant. In the case of Lal Suraj @ Suraj Singh's case (supra) it has been observed by the Hon'ble apex court that even strong suspecision is not sufficient to summon a person as an accused. Further, the court has observed that powers under this section should be exercised very sparingly and with caution. As the matter is pending before the learned lower court, at the fag end of trial , therefore, it is not desirable to discuss statements of the witnesses in detail . On the basis of over all perusal of the statements and other material , I consider that there is no irregularity or illegality in the impugned order and the revision is liable to be dismissed. In the net result the revision is dismissed , the impugned order is maintained. (MANAK MOHTA), J. l.george