1 S.B.Cr.Misc.Petition No.22/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.B.CRIMINAL MISC. PETITION NO.22/2008 Lal Chand Sharma Vs. State of Rajasthan & Anr. Date of Order : : 15.09.2009 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.K.N.Joshi, for the petitioner. Mrs.Rajlaxmi Singh Choudhary, Public Prosecutor for State. BY THE COURT: The instant criminal misc. petition under Section 482 Cr.P.C. is directed against the order dated 24.1.2007 passed by Judicial Magistrate No.1, Sujangarh (for short, “the trial court” hereinafter) as also the order dated 31.10.2007 passed by Additional Sessions Judge, Sujangarh (for short “the revisional court”) whereby the revision petition filed by the petitioner against the order of the trial court came to be dismissed. I have heard learned counsel for the parties. Carefully gone through the orders passed by both the courts below. It is contended by learned counsel for the petitioner that after thorough investigation, the police did not find the 2 S.B.Cr.Misc.Petition No.22/2008 case against the present petitioner. However, a challan came to be filed against the co-accused Nop Singh before the trial court. The trial of the case was proceeded and statements of all the prosecution witnesses were recorded. At this stage, an application came to be filed by the complainant under Section 319 Cr.P.C. seeking impleadment of the present petitioner as an accused. The trial court by order dated 24.1.2007 impleaded the present petitioner as an accused and issued process against him. Against which a revision petition was filed by the petitioner which came to be dismissed. It is further contended by learned counsel for the petitioner that there is no evidence connecting the present petitioner in commission of crime. No specific role has been assigned against the petitioner by any of the witnesses examined by the police or before the trial court. I have perused the statements of the various witnesses recorded by the trial court. The trial court has recorded the statements of all the prosecution witnesses. It was a State case and State did not move before the trial court for impleadment of the present petitioner as an accused but it was an application by the complainant. Even, the injured PW-3 Birbal Singh did not assigned any specific role against the petitioner having inflicted any injury to him. He only stated that the petitioner was only present there in the crowed. In Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr., 2000 (3) SCC 262, construing the words “the Court may proceed against such person” in Section 319 of the Code, it was held that the power is discretionary and should 3 S.B.Cr.Misc.Petition No.22/2008 be exercised only to achieve criminal justice and that the Court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. The Apex Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court, while examining an application under Section 319 of the Code has to bear in mind that there is no compelling duty on the Court to proceed against other persons. On close scrutiny of the statements of the prosecution witnesses which almost have been examined by the trial court, it appears that the trial of the case is at the conclusion and therefore, in my view, there is no compelling reason either for the trial court or before this Court to implead the present petitioner as an accused in the case. In the circumstances, therefore, the orders passed by both the courts below suffer from apparent error and is liable to be set aside. Consequently, the criminal misc.petition is allowed and the order impugned dated 24.1.2007 passed by the trial court and affirmed by the revisional court vide order dated 31.10.2007 are hereby set aside. (H.R.PANWAR), J. NK 4 S.B.Cr.Misc.Petition No.22/2008 S.B.CRIMINAL MISC.STAY PETITION NO.43/2008 IN S.B.CRIMINAL MISC.PETITION NO.22/2008 Date of Order : : 15.09.2009 HON'BLE MR.JUSTICE H.R.PANWAR Mr.K.N.Joshi, for the petitioner. Mrs.Rajlaxmi Singh Choudhary, Public Prosecutor for State. Since the criminal miscellaneous petition itself has been allowed, the stay petition stands disposed of. (H.R.PANWAR), J. NK