1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Ghoti Devi @ Chhoti Devi Vs. State of Rajasthan & Anr. (S.B. Criminal Revision Petition No.1491/2009) Date of Order :- 12th October, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Anshuman Saxena, for the petitioner. Mr.Javed Chaudhary, Public Prosecutor. The petitioner has challenged the order dated 03.09.2009 passed by the Additional District & Session Judge (Fast Track) No.3, Jhunjhunu, Mukhayalay Nawalgarh, District, Jhunjhunu whereby the learned Judge has taken cognizance against the petitioner for offences under Sections 147, 148, 302/149 read with Section 120-B IPC., while allowing an application filed by the complainant under Section 319 Cr.P.C. Mr. Anshuman Saxena, the learned counsel for the petitioner, has strenuously contended that after a thorough investigation, the police had concluded that the petitioner was not involved in the case. Therefore, the police did not file a charge-sheet against the petitioner. This conclusion is further buttressed by the testimony of the I.O. In his cross-examination, he has clearly opined that during investigation, he discovered that the petitioner was not involved in the commission of the crime. Secondly, once the charge- sheet was not submitted against the petitioner, the complainant party was free to file a protest petition. However, no protest petition was filed by the complainant party. Therefore, nothing new has been 2 brought on record to show the involvement of the present petitioner in the alleged case. Thirdly, the testimonies of Bhagirath (PW.5), Sushila (PW.7), Rajkumar (PW.8), Vijendra Singh (PW.13), Maniram (PW.14) are full of contradictions. Therefore, these testimonies cannot form the basis for taking a cognizance under Section 319 Cr.P.C. For, the power under Section 319 Cr.P.C. should be exercised sparingly and only in those cases where a strong possibility of recording a conviction does exist. However, as the testimonies of these witnesses are full of contradictions, there is hardly any possibility of recording a conviction against the present petitioner. Lastly, some of the witnesses such as Sushila (PW.7) is the wife of the deceased, Vijendra Singh (PW.13) is the brother of the deceased, therefore, they are interested witnesses, who have falsely implicated the petitioner for the first time in the Court. Therefore, the testimonies of interested witnesses should not be relied upon while invoking the power under Section 319 Cr.P.C. In order to buttress this contention, he has relied upon the case of Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr. [2000 (3) SCC 262]. On the other hand, Mr. Javed Chaudhary, the learned public prosecutor, has vehemently opposed this petition and has contended that although the power under Section 319 Cr.P.C. should be used sparingly, but if there is an overwhelming evidence pointing to the involvement of a person who has not been charge-sheeted by the police, then the learned trial court would be justified in invoking its power under Section 319 Cr.P.C. Secondly, at the time of taking cognizance about the commission of an offence against a person who 3 has not been charge-sheeted, the court cannot meticulously examine the evidence so as to examine the contradictions which may exist in the case of the prosecution. The court is concerned only with the existence of a 'strong' prima facie case. According to the learned public prosecutor, recently, in the case of Hardeep Singh Vs. State of Punjab & Ors., Criminal Appeal No.1750/2008 decided on 07.11.2008, the issue, whether the evidence should be sufficient to record a conviction before power under Section 319 Cr.P.C. can be invoked, has been referred to a Larger Bench of the Apex Court. Therefore, the reasoning given in the case of Michael Machado & Anr. (supra) is now questionable. Thirdly, according to the evidence of the witnesses mentioned above, there is a 'strong' prima facie case against the petitioner. Therefore, the learned trial court was justified in invoking its power under Section 319 Cr.P.C. Hence, he has supported the impugned order. Heard the learned counsel for the parties, and perused the record which has been produced before the Court, and examined the impugned order. Undoubtedly, the power under Section 319 Cr.P.C. is a vast one. Therefore, it needs to be exercised sparingly. However, whether the said power can be exercised only in those cases where a strong possibility exist for recording a conviction or not, is presently an issue which is pending before a Larger Bench of the Apex court. For, the said issue has been referred to a Larger Bench in the case of Hardeep Singh (supra). It is the opinion of this Court that at the time of invoking the power under Section 319 Cr.P.C., the court 4 cannot meticulously analysis all the evidence. For, the court would be prejudging certain issues, which it is not permitted to adjudicate till the final arguments have been concluded by both the parties. At the time of invoking the power under Section 319 Cr.P.C., the court is concerned only with the existence of a 'strong' prima facie case against the person who has not been charge-sheeted by the Investigating Agency. Moreover, merely because the complainant had not filed a protest petition, it would not pre-empt either the complainant or the prosecution from filing an application under Section 319 Cr.P.C. Therefore, the second contention raised by the learned counsel for the petitioner is unacceptable. It is, indeed, a settled position of law that merely because the witnesses are related to the deceased or the injured, their testimonies cannot be ousted only on this ground. Therefore, merely because, Sushila (PW.7), happens to be the wife of the deceased, and Vijendra Singh (PW.13), happens to be the brother of the deceased, their testimonies do not become suspect. Whether they are to be trusted as witnesses or not, is a matter to be appreciated by the learned trial court. At this juncture, all that can be said is that they have testified before the learned trial court that the petitioner was present and had uttered few word to instigate Ram Pratap, an accused in the case, to fire at the deceased. Thus, her presence and her involvement in the present case is prima facie available on record. For the reasons stated above, this petition is devoid of any merit and it is, hereby, dismissed. However, it is clarified that the 5 observations made in this order should not influence the decision of the trial court at the final stage. The trial court is expected to appreciate the evidence as it is produced by the prosecution, and controverted by the defence, strictly in accordance with law. (R.S.CHAUHAN)J. Manoj Solanki-