1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Revision Petition No. 780/2009 (Brijmohan Versus State of Rajasthan) Date of Order :: 1st April, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Anurag Sharma, counsel for the petitioner. Mr. G.S. Fauzdar, PP for the State BY THE COURT: Challenge in this criminal revision petition is to the order dated 4th April, 2009, whereby the learned Additional Sessions Judge (Fast Track), Hindaun City, District Karauli dismissed the application filed under Section 319 of CrPC by the complainant petitioner. Heard learned counsel for the complainant petitioner, learned PP appearing for the State and carefully perused the impugned order and relevant material on record. Learned counsel for the petitioner canvassed that after recording the statements of PW 1 Govind Singh, PW 2 Jitendra Singh, PW 3 Abdul Salam, PW 4 2 Brij Mohan and PW 5 Balveer, the petitioner submitted an application under Section 319 of CrPC for proceeding against Ram Sahai as there was ample evidence against him on record. Learned trial court, albeit discussed the entire evidence in impugned order, but relied upon the statements of the witnesses recorded under Section 161 of CrPC instead the statements which were recorded by the learned trial court during trial. The approach to deal with the application under Section 319 of CrPC is erroneous and contrary to the provisions of law and thus, the impugned order deserves to be set-aside. Having reflected over the submissions made by the learned counsel for the complainant-petitioner and carefully scanned the statements of the prosecution witnesses, it is noticed that all the prosecution witnesses namely PW 1 Govind Singh, PW 2 Jitendra Singh, PW 3 Abdul Salam, PW 4 Brij Mohan, and PW 5 Balveer Singh deposed before the court that Ram Sahai was armed with a club, who 3 assaulted upon the shoulder of injured Balveer. The learned trial court instead of the statements given in examination-in- chief is found to have relied upon more on the statements given in cross-examination as also the statements given earlier under Section 161 of CrPC during investigation. Section 319 of CrPC envisages as under: “319. Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.” (2)....... (3)....... (4)....... From bare perusal of sub-section (1) of Section 319 of the Code, it is tangible that where in the course of an enquiry into or trial of an offence, it appears to the Court from the evidence emerging on record during trial that the 4 accused had committed an offence for which he could be tried together with the accused, the court could proceed against that person. In order to apply Section 319 of the Code, it is essential that the need to proceed against the person other than the accused appearing to be guilty of an offence arises only on evidence recorded in the course of trial. In catena of cases, it has been consistently held by the Hon'ble Apex Court that if during the course of trial, evidence with regard to an offence emerges during trial, for which he could be tried along-with the accused already facing trial, the court could proceed against him. The learned trial court had scribbled candidly that the prosecution witnesses which were examined by the court deposed that Ram Sahai had assaulted with a club on the shoulder of Balveer, as a result of which he sustained injuries. There was no reason for the learned trial court to base upon the statements recorded under Section 161 of CrPC while dealing with the application filed under Section 319 of CrPC. The 5 approach of the learned trial court per-se seems to be erroneous and contrary to the provisions of law. Hence, the impugned order deserves to be set-aside. In view of above, the criminal revision petition filed by the complainant petitioner is allowed and the impugned order dated 4th April, 2009 is set-aside. The learned trial court is directed to afford an opportunity of being heard to both the parties and after careful examination of the deposition of witnesses, recorded during trial by the court, shall pass an order on application under Section 319 of CrPC afresh keeping in view the settled principles of law. (MAHESH BHAGWATI),J. DK/-