S.B. CRIMINAL REVISION NO. 20/2009 (Goda Ram Vs. State & Ors.) Date : 20.07.2010 HON'BLE MR. C.M. TOTLA, J. Mr. Suresh Kumbhat for the petitioner. Mrs. Chandralekha, P.P.. Mr. Vijay Raj Bishnoi for the respondent. = = = = Petitioner's application under Section 319 Cr.P.C. for cognizance and registering case also against Jesa Ram S/o Lakhma Ram (R/2) is rejected by learned Special Judge vide order dated 06.12.08. Aggrieved of the order, is this revision. Petitioner prays that accepting application under Section 319 Cr.P.C. order be to proceed against and charge R/2 for the offences. Heard learned counsel for the petitioner, learned Public Prosecutor as also learned counsel for the respondent. Gone through the record and order under challenge. Brief relevant events per prosecution seem that on 20.11.05 one Kapoora Ram lodged written report narrating that three persons including R/2 had beaten Goda Ram. Following investigation, report submitted against two accused other than R/2 and committed. Learned Sessions Judge framed charges for the offences of Sections 307 IPC (in relation to injured Goda Ram), 325, 323, 341 IPC and also 3(1)(x) and 3(2)(v) of SC/ST Act. In evidence are examined Pratapa PW/1, a motbir and Kapoora Ram PW/2 a eye witness who per prosecution also lodged FIR. Learned counsel for the revisionist stated that (i) in FIR named is R/2 (ii) Kapoora Ram PW/2 an eye witness categorically says of R/2 also having inflicted injuries (iii) atleast some in course of investigation also stated involvement of R/2 (iv) to have recourse to Section 319 Cr.P.C. very right when trial at a primary stage (v) reasons assigned in the impugned order not proper and tenable. Supporting contentions cited are (i) 2010 Crl.L.J 617 Najma Vs. State of U.P. (ii) 2010(1) RCC 179 Govind Vs. State of Raj. (iii) (2008) 1 Cr.L.R. (Raj.) 331 Smt. Manju Vs. State of Raj & Ors (iv) (2008) 2 RLW 1343 Arseeda Vs. State (v) (2007) 3 RLW Y. Saraba Reddy Vs. Puthur Rami Reddy & Anr. (vi) 2009 AIR SC 7078 Suman Vs. State of Raj. & Ors. Learned counsel for the respondent state that after extensive investigation, conclusion is of non-involvement of R/2 and no other witness was except one Kapoora Ram. Learned Sessions Judge in impugned order has observed (i) after investigation found involved two and against those charge-sheet filed (ii) no other eye witness and injured examined so far (iii) in course of statement under Section 161 Cr.P.C. not incriminated R/2 and no sufficient evidence for taking cognizance. Thoughtfully considered arguments and gone through the record. In FIR is named R/2 and also averrally described is that Goda Ram sustained grievous injuries. With this is the situation that police concluded of non-involvement and so far none else except Kapoora Ram examined in evidence. Not is that no other witness except Kapoora Ram allegedly witnessed incident. Considering scope of Section 319 Cr.P.C., Hon'ble Apex Court in Suman Vs. State of Raj (Supra) held that on evidence produced and conclusion during investigation, congnizance can be and ought to be. That case was under Section 498A and seems that complainant wife was examined under Section 164 Cr.P.C. who also stated in course of statement under Section 164 Cr.P.C. . Also is held that a person who is named in FIR with the allegation of particular act and against whom the police do not launch prosecution may be proceeded under Section 319 Cr.P.C, if the Court is prima facie satisfied about the involvement in commission of offence of that person. Also is held that trial court proceeding under Section 319 Cr.P. C has to take such persons as accused on the basis of evidence and not on the basis of material available in the charge-sheet. A judicial exercise is called for, keeping all aspects of the case in consideration and quantum of evidence till then collected. Order for proceedings under Section 319 Cr.P.C. is not exactly similar to that under Section 190 and perhaps a little more than at the stage of Section 190 is required at Section 319 Cr.P.C. This power under Section 319 Cr.P.C is to be used sparingly and for compelled reasons for taking cognizance. Provisions of Section 319 Cr.P.C invokable at any stage of the trial are to be applied and exercised for some reasons and not as a matter of course. Finding is to be based on the evidence on record and a prima facie view not enough always. As is observed here one said eye witness is examined and still to appear in evidence are some eye witnesses in addition to injured. Reasons assigned by learned Sessions Judge are as above, and it appears that in the opinion of learned Sessions Judge (at the stage) not sufficient evidence was to take evidence. As trial is proceeding and evidence to be adduced, it is not desirable and not seems necessary to mention and examine 1any more averred factual aspects. For the reasons above, not interfering with the order impugned, appropriate is to clarify and direct that petitioner or any concerned shall be at liberty to move an application under section 319 Cr.P.C. for proceeding against any including R/2. Learned Sessions Judge shall be considering such application without in any way being affected by order impugned observations whatever in this order which are solely in context for and deciding this revision. (C.M. TOTLA), J.