1 Bheeka Ram & Ors. vs. State of Rajasthan & Anr. S.B.Cri. Revision Petition No.534/2008 Date of Order : 27.01.2009 HON'BLE MR. MANAK MOHTA, J. Mr.Sandeep Mehta for the petitioner/s. Mr.O.P.Rathi , Public Prosecutor. Mr.D.K. Parihar for respondent No.2. The instant revision petition has been filed on behalf of accused petitioners challenging the correctness and legality of the order dated 03.05.08 passed by the Addl. Sessions Judge (Fast Track) No.1, Jodhpur in sessions case No.15/2008 State vs. Om Prakash and others whereby the learned Judge allowed the application filed under section 193 Cr.P.C. and took cognizance against the petitioners and arraigned them as accused, along with the other accused. The brief facts of the case are that on 05.11.07 a report was lodged at the police station Dangiawas alleging therein that complainant Om Prakash and one Meera Ram both were 2 coming by motor cycle No.RJ19-SD-9910 from Dantiwara and at 6.30.PM when they were at village Dewaliya then the accused 1. Bheekha Ram ,2. Chandra Ram, 3. Gopa Ram , 4.Mukna Ram 5. Beniwal, 6. Pema Ram , 7. Pukha Ram, 8. Shyam Lal , 9. Kalu Ram along with other 15-20 persons including Oma Ram and others all boarded in two jeeps tried to hit their motorcycle from the back with a view to kill them . Thereafter all the accused persons assaulted them with iron pipes , lathi, and hockey sticks, with an intent to kill them. Complainant Om Prakash sustained multiple injuries and fracture. Accused also snatched Rs.10,000/- lying in bag and took away the documents. On that basis, FIR No.191/2007 was registered under sections 147, 148, 149, 341,323, 325, 307, and 379 IPC and investigation commenced. It further reveals that after completion of the investigation, charge sheet was filed with aforesaid sections only against 1. Om Prakash 2. Pukha Ram, 3. Shyam Lal, 4. Mana Ram and 5. Kalu Ram. Looking to the nature of the case, the learned Judicial Magistrate committed the case to the court of Sessions, where the case was registered on 05.01.08. Thereafter the case was transferred by the court of Sessions Judge to the court of 3 Additional Sessions Judge ( Fast Track) No.2. The case was taken up on 15.01.08 by the concerned court. On 05.02.08 an application under section 193 Cr.P.C. was filed by private complainant through his counsel, stating therein that on the day of occurrence, Bheekha Ram, Chandra Ram, Gopa Ram Mukna Ram, Pema Ram , Purkha Ram, Shyam Lal and Kalu Ram along with 15 to 20 other persons having common intention to kill them, gave several beating. The accused persons also took away Rs.10,000/- and snatched the papers from Om Prakash. It was further stated in the application that police did not fairly investigate the matter with the connivance of accused persons, Bhika Ram , Chandra Ram , Gopa Ram, Mukna Ram and Pukha Ram and with an intent to save them , despite sufficient material available on record of involvement, but did not file challan against them. It was further stated in the application that prima facie offence under section 326 and 395 IPC were made out but the investigating Officer filed challan under section 325 and 379 IPC along with other sections. Lastly, it was submitted that cognizance against these accused persons be taken and they may be summoned as accused persons in the pending Sessions Case 4 No.15/2008. The learned Addl.Sessions Judge , after hearing both the sides, vide impugned order dated 05.03.08 allowed the said application and took cognizance under sections 147, 148, 149, 341, 323, 325, 326, 307 and 395 IPC and summoned the above named persons as accused through non-bailable warrant .The petitioners being aggrieved by the said order filed the present revision petition . Notice of this petition was issued, record of the case was called and arguments were heard. During the course of arguments, learned counsel for the petitioners submitted that the impugned order was passed without proper application of mind as well as against the the provisions of law. Thus the order is per se illegal and is liable to be quashed and set aside. Learned counsel for the petitioners further contended that from the perusal of record it is clear that the police, after thorough investigation, did not find the involvement of the present petitioners in commission of crime. Thus, no challan was filed against them. Further the committal Magistrate also did not find involvement of the present 5 petitioners, therefore, he has not committed the present petitioners for trial. Thereafter the case was registered in the Sessions Court and from there the case was transferred to the court of Addl.Sessions Judge ( Fast Track) No.1. In these factual position, it was contended that under section 193 IPC where the petitioners were committed to the court of Sessions, no cognizance can be taken against them at that stage and they cannot be summoned. The learned court has not considered the legal position laid down under section 193 IPC and has wrongly issued the process against them, that may be quashed. It was further contended that admittedly, while taking cognizance under section 193 IPC, neither charge was framed nor prosecution evidence were recorded. Before that there was no occasion to take cognizance and summon these accused persons. It was also contended that after thorough investigation, police filed challan against the accused under section 325 and 397 IPC along with other sections , but the learned court, without any additional material and without any occasion, took the cognizance of the case under sections 6 326 and 395 IPC and summoned the accused petitioners under these sections, that was also prima facie wrong. The learned counsel for the petitioners, in support of his contentions, cited the judgments given in Ranjit Singh vs. State of Punjab [1998 Cr.L.R (SC), 703 ], Sohan Lal & Anr. vs. The State of Rajasthana [WLC 1999 (2) 344], Noordin & Ors vs. State of Rajasthan [WLC 1998 (2) 420] Mohanpuri vs. State of Rajasthan [WLC 1999 143] and Sukhram @ Shubhram vs. Stae of Rajasthan [WLC 2001 (3) 467. On the basis of aforesaid submissions, learned counsel further stressed that the impugned order be quashed and the revision may be allowed. I have also heard the learned Public Prosecutor as well as the learned counsel for the complainant respondent No.2. Learned counsel for the respondent No.2 submitted that under section 193 Cr.P.C. court was having jurisdiction to proceed against those persons who have been left out, though their names were in FIR. The learned court, after satisfying from 7 the material available on record , has issued process, thus no illegality or irregularity has been committed by the learned court. I have considered the rival submissions and perused the impugned order as well as the record of the case It is revealed from the record that at the time of passing the impugned order, neither the charges were framed nor prosecution evidence were recorded. It is further revealed from the record that after investigation challan was filed by the police only against the 5 accused persons under sections 147, 148, 149, 341, 323, 325,307and 379 IPC and the case was committed to the court of sessions only against these persons under above mentioned sections, where the case was registered and thereafter, the case was transferred to the court of Addl.Sessions Judge (Fast Track) No.1 for trial. Thereafter, on 05.02.08, an application under section 193 Cr.P.C. was filed by the private complainant, on which cognizance was taken against other non-charge-sheeted persons by impugned order. In this respect the apex court's judgment cited by the learned counsel for the petitioners of 8 Ranjeet Singh (supra) is most relevant . In that case , while dealing with the similar situation, it has been held that power to summon additional accused persons having complicity in the commission of crime, only can be invoked after recording of the evidence. The same type of observations are made in other judgments cited supra. The observations made in the case of Ranjit Singh ( supra) is quoted as under : “ Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers”. Thus, from the perusal of the impugned order, it reveals that the learned Sessions Judge has given importance to the 9 police report but that was not relevant at that stage for arraigning the left out persons as accused. On the basis of statement recorded by the police, under section 161 Cr.P,.C. during investigation, the learned committal Magistrate and learned court of Sessions have taken cognizance against the charge sheeted accused persons , but as the case was not committed against the present petitioners by the committal court, therefore, the learned trial court was not competent to take cognizance and summon these persons at that stage. Thus, the learned court has also committed a grave mistake in summoning these persons. Further the learned court has committed error that without any proper occasion and without hearing the accused persons, he took cognizance under section 326 and 395 IPC. On the basis of aforesaid discussion, relying on law laid down in the case of Ranjeet Singh (supra) and other judgments cited above, the present revision petition deserves to be allowed. It is amply clear that before the learned trial court that was not the right time to take cognizance and proceed to summon the petitioners. Thus, the impugned order 10 is not sustainable and is liable to be set aside. That is hereby quashed and set aside. The petitioners are not required to appear before the trial court. It is further made clear that any observation made in this order will not be a bar in the further proceedings with regard to taking of cognizance under section 319 IPC, if any situation arises. Revision petition is allowed accordingly. (MANAK MOHTA), J. l.george