1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Prem Devi Vs. State of Rajasthan & Ors. (S.B. Criminal Revision Petition No.1383/2009) Date of Order :- October 26th , 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN REPORTABLE Mr.Hari Krishna Sharma, for the petitioner. Mr.Javed Chaudhary, Public Prosecutor. Mr.Rajnish Gupta, for the respondents. The petitioner has challenged the order dated 04.04.2009 passed by the Additional Sessions Judge (Fast Track) No.1, Karauli whereby the learned Judge has dismissed the petitioner's application under Section 319 Cr.P.C. In a nutshell the facts of the case are that on 10.03.2008, the petitioner submitted a written report at police station Kaurauli. According to the petitioner, her daughter Smt. Mamta was married to one Banty. However, after the marriage, her daughter was subjected to physical and mental cruelty for dowry. According to her, when her daughter used to come back to the parental home, she would tell them that her in-laws are demanding a motor-cycle and Rs.1,00,000/- in cash. Since they could not meet this illegal demand, her daughter was physically abused in her matrimonial home. On 09.03.2008, Mamta called her and told her to bring the money because her mother-in-law Pushpa, her father-in-law Charan, her brother-in-law Laxhmi, her husband Banty, her younger brother-in-laws Prem & 2 Bhupal, her elder sister-in-law Maya and her younger sister-in-law are all physially assaulting her. The petitioner claims that she assured Mamta that she will bring the money within two days. However, in the evening, one Nahar Singh called the petitioner to inform her that Mamta has expired, and has been cremated in the field near Mamta's in-laws' house. On the basis of this report, a FIR was chalked out. However, after a thorough investigation, the police filed a charge- sheet only against Banty for offences under Sections 304-B, 201, 176 IPC. During the course of trial, many witnesses had testified about the involvement of Charan, Pushpa, Laxhmi, Prem, Bhupal, Maya, Ram Prasad, Kishori, Sattu, Bhoru. Therefore, the petitioner moved an application under Section 319 Cr.P.C. However, vide order dated 04.04.2009, the said application was dismissed. Hence, this revision petition before this Court. Mr. Hari Krishna Sharma, the learned counsel for the petitioner, has contended that the stage of 319 Cr.P.C. is akin to taking of cognizance by a Magistrate under Section 190 Cr.P.C. Therefore, at the initial stage, the learned Magistrate should be concerned only with the existence of “a prima facie” case. At this preliminary stage, the learned trial court should not critically analise the evidence. However, in the present case, the learned Judge has critically assessed the testimonies and has dismissed the application. Since the learned Judge has shifted through the evidence, he has over-stepped his jurisdiction. Therefore, the learned Judge has caused a grave injustice to the petitioner. On the other hand, Mr. Rajnish Gupta, the learned counsel for the respondents, has contended that the testimonies of 3 the witnesses are absolutely vague with regard to the persons mentioned above. Secondly, before taking cognizance under Section 319 Cr.P.C., the learned trial court is expected to analyse the evidence. Thirdly, the petitioner has tried to rope in innocent members of the family. Therefore, the learned counsel has supported the impugned order. Heard the learned counsel for the parties and perused the impugned order. The scope and ambit of Section 319 Cr.P.C. has taxed the judicial imagination for decades. In the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors. [(1998)1 SCC 1], the Hon'ble Supreme Court has observed as under :- Section 319 is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. If the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence, the court can take cognizance against them and try them along with the other accused. However, in the case of Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr. [2000 (3) SCC 262], the Apex Court laid down a new test for invoking the extraordinary power given under Section 319 Cr.P.C. According to the Hon'ble Supreme Court, mere suspicion of the involvement of the person was not enough to take cognizance against the said person. Instead, evidence 4 should be sufficient to indicate “reasonable prospectus of conviction” of the said person. In that case, considering the fact that the trial was almost at an end, considering the fact that the large number of witnesses had been examined, considering the fact that a de novo trial would only prolong the trial, the Hon'ble Supreme Court quashed the order passed under Section 319 Cr.P.C. But, in the case of Lok Ram Vs. Nihal Singh & Anr. [(2006)10 SCC 192], the Apex Court did not apply the case of “reasonable likelihood of conviction”. Instead, it held that the power is discretionary and such discretion must be exercised judicially and for compelling reasons. But the Apex Court did not illustrate as to what would be the compelling reasons for taking cognizance under Section 319 Cr.P.C. In the case of Rajendra Singh Vs. State of U.P. & Anr. [(2007) 7 SCC 378], while supplementing the opinion of Hon'ble Justice G.P. Mathur, Hon'ble Justice P.K. Balasubramanyan observed that “there is no reason to describe the power under Section 319 Cr.P.C. as an extraordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom actin has not been taken under Section 319 Cr.P.C........ Section 319 Cr.P.C. only gives power to the court to ensure that all those apparently involved in the commission of an offence are tried together and none is left out. There is no reason to curtail this power of the court to do justice to the victim and to the society. There is no rationale in fettering that power and the discretion, either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. It 5 is intended to be used when the occasion envisaged by the section arises.” In the case of Bholu Ram Vs. State of Punjab & Anr. [(2008)9 SCC 140], the Apex Court revealed another facet of Section 319 Cr.P.C. when it held that “the primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be regarded and conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.” However, in the case of Mohd. Shafi Vs. Mohd. Rafiq & Anr. [(2007)14 SCC 544], the Apex Court reiterated that “reasonable likelihood of conviction” should exist before the power under Section 319 Cr.P.C. can be exercised by the trial court. Noticing the conflicting opinion that exist within the Apex Court, in the case of Hardeep Singh Vs. State of Punjab & Ors. Criminal Appeal No.1750/2008 decided on 07.11.2008, a Bench of the Court has referred the issue whether power under Section 319 Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted or not ? It has also sought the test and guidelines which are applicable while exercising the power under Sub-section (1) of Section 319 of Cr.P.C. 6 Thus, presently the matter is sub-judice before a Larger Bench of the Hon'ble Supreme Court. Recently, in the case of Lal Suraj alias Suraj Singh & Anr. Vs. State of Jharkhand [(2009)2 SCC 696], the Hon'ble Supreme Court has reiterated the earlier position that “it is an extraordinary power which needs to be exercised sparingly.” Criminal Law defines those acts as an offence which are unacceptable to the society. In case, society believes that an act undermines or threatens its existence, the society defines the act as an offence and prescribes a punishment for commission of the said act. Since the society needs to be protected from those who undermine or threaten its existence, it is imperative that all the persons who were allegedly involved in the commission of crime should be tried and if convicted, they should be sentenced in accordance with law. Keeping in mind this essential prerequisite, repeatedly it has been observed by the Apex Court that a Magistrate is not bound by the findings of the investigating agency. Under Section 190 Cr.P.C., the magistrate can take cognizance of the offence either suomoto, or an application moved by a person. In case, a person has not been arrayed as an accused by the Investigating Agency, but during the course of the trial, evidence starts trickling in that the said person was involved in the commission of the crime, the learned trial court would be justified in taking cognizance of the offence and in summoning such a person under Section 319 Cr.P.C. Section 319 Cr.P.C. is as under :- 7 319. 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) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re- heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. It is pertinent to note that the said provision uses the word 'it appears from the evidence'. The provision does not use the word 'if the court is satisfied'. There is certain differences between the expression 'if it appears from the evidence' and the word 'the court is satisfied'. The former relates to the existence of a prima facie case, whereas the latter relates to the existence of compelling reasons which need to be stated in order to show the satisfaction of the Court. Therefore a bare perusal of the said provision reveals that the existence of a prima face case against a person would be sufficient for the trial court to invoke its power under Section 319 Cr.P.C. After all, it is the cardinal duty of the trial court to summon and to try all those persons who have been arrayed as accused by the 8 Investigating Agency and even those who have been left out by the Investigating Agency, but seem to be connected with the commission of the alleged crime. Therefore, in the humble opinion of this Court, if there is a strong prima facie case about the involvement of those who have not been arrayed as accused by the Investigating Agency, then the trial court would be justified in issuing the process under Section 319 Cr.P.C. Since the power under section 319 Cr.P.C. is exercised during the pendency of the trial, since the trial Judge is concerned only with the existence of a strong prima facie case, the learned Single Judge should not enter into meticulous analysis of the evidence produced by the prosecution. For, firstly, while taking cognizance of an offence the same yardstick would have to be applied as is applied in the case of taking cognizance under Section 190 Cr.P.C. Secondly, by examining the evidence the learned trial court would be revealing its mind about the merit or demerit of the case. Thirdly, by expressing its opinion, the Court would be prejudging the issues, even before the defence has had an opportunity to plead its case before the court. Such a prejudging of the issues may adversely affect the right and the interest of the defence. Lastly, since the trial would begin afresh for the newly added accused persons, they would have ample opportunity to place their case at the time of framing of the charges against them. They would equally have an opportunity to cross-examine those who are re-examined afresh. Therefore, at the time of exercising the power under Section 319 Cr.P.C., the trial court should avoid a meticulous discussion of the evidence produced by the prosecution. This Court in the case of Vikram Singh Vs. State of 9 Rajasthan [2006 (2) RCC 999] has also observed that while exercising the jurisdiction under Section 319 Cr.P.C., the learned trial court should not meticulously discuss the evidence produced by the prosecution. A bare perusal of the impugned order clearly reveals that the learned Judge has filtered meticulously through the evidence produced by the prosecution, has given judicial finding about the contradiction which exist within the said evidence and has rejected the application filed under Section 319 Cr.P.C. As stated above, the learned Judge should have refrained from critically analyzing the prosecution evidence. Hence, clearly the learned Judge has over- stepped the jurisdiction vested in him. In this view of the matter, this revision petition is allowed and the impugned order dated 04.04.2009 is, hereby, quashed and set aside. The learned trial court is directed to reconsider the petitioner's application under Section 319 Cr.P.C. and to pass necessary orders in accordance with law. The criminal proceeding shall remain stayed till the decision of the said application. (R.S.CHAUHAN)J. Manoj Solanki-