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Mahendra Rinwa vs State & Anr on 2 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1484 / 2017
Mahendra Rinwa S/o Baksa Ram Jat, Lilariya, Anandpur Kalu,
Jaitaran, Distt. Pali (Raj.)

—-Petitioner
Versus

1. State of Rajasthan

2. Teja Ram S/o Sh. Bhera Ram, Village Nimbol, Police Station
Jaitaran, District Pali (Raj.)

—-Respondents
__
For Petitioner(s) : Mr. Ram Niwas Choudhary
For Respondent No.1 : Mr. O.P. Rathi, Public Prosecutor
For Respondent No.2 : Mr. R.S. Choudhary
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
02/04/2018

Petitioner-complainant has preferred this revision petition

under Section 397 read with Section 401 Cr.P.C. to assail order

dated 21st of November 2017, passed by Addl. Sessions Judge,

Jaitaran (Pali) (for short, ‘learned Court below’). By the order

impugned, learned Court below has rejected application of the

petitioner under Section 319 Cr.P.C. in Sessions Case No.07/16,

arising out of FIR No.492/2015, registered at Police Station,

Jaitaran, District Pali.

The facts, apposite for the purpose of this revision petition,

are that petitioner-complainant submitted aforementioned First

Information Report against Omprakash, Ms. Babu Devi and second
(2 of 5)
[CRLR-1484/2017]

respondent Teja Ram, inter-alia, alleging therein that they are

husband, mother-in-law and brother-in-law of his daughter Ms.

Sushila, who died at matrimonial home on 7 th of December 2015

under mysterious circumstances. The FIR further unfurled that

husband, mother-in-law and brother-in-law of deceased Sushila

subjected her to cruelty or harassment for or in connection with

demand of dowry soon before her death, and death has

occasioned otherwise than under normal circumstances within

seven years of matrimony. Police after investigation, charge-

sheeted husband of Ms. Susila, Omprakash and her mother-in-

law Ms. Babu Devi for offence under Sections 498A and 304-B

IPC, while dropping the name of second respondent. In due

course of time, the case was committed to learned Court below

and charges were framed for the aforesaid offences against the

accused persons. After recording statements of prosecution

witnesses including father, mother and brother of the deceased,

petitioner laid an application under Section 319 Cr.P.C. to proceed

against second respondent for the aforesaid offences, which he

appears to have committed and put him to trial together with

other accused persons. The learned Court below, after examining

the evidence and other materials available on record, declined

prayer of the petitioner and that prompted him to approach this

Court.

I have heard learned counsel for the petitioner, learned

Public Prosecutor as well as learned counsel for second respondent

and perused the materials available on record.

(3 of 5)
[CRLR-1484/2017]

While it is true that a Court, at any stage of trial, can

exercise power under Section 319 Cr.P.C. to do real justice but

then such extraordinary power conferred on the Court should be

used with caution and only if compelling reasons exist for

proceeding against a person against whom action has not been

taken. Law is trite on the subject that power of summoning an

additional accused under Section 319 Cr.P.C. should be exercised

sparingly. There remains no quarrel that second respondent is

brother-in-law of the deceased, who is serving Army. Despite his

relationship with the deceased, the evidence which has emerged

during trial, more particularly evidence of PW1 Baksha Ram –

father of the deceased, PW3 Mahendra – real brother of the

deceased, and PW10 Ms. Jaitu, though prima facie implicating the

second respondent for commission of offence, but in totality,

testimony of all these witnesses is not much stronger than

showing mere probability of complicity of the second respondent.

A cumulative reading of the statements of these witnesses, in my

considered opinion, is falling short of the stringent requirements

prescribed under Section 319 Cr.P.C. for summoning the second

respondent as an additional accused. Moreover, none of these

witnesses has whispered anything about dates and events when

second respondent subjected deceased Ms. Sushila to cruelty or

harassment for demand of dowry. While serving Army, it is rather

difficult to comprehend that he remained present at his home on

every sundry occasions. Constitution Bench of Supreme Court in

Hardeep Singh Vs. State of Punjab Ors. (2014 Cr.L.J.1118),
(4 of 5)
[CRLR-1484/2017]

while concurring with the power of Court at the time of taking

cognizance, i.e., whether a prima facie case is made out to

proceed against the accused, the Court insisted for stricter degree

of satisfaction while exercising power under Section 319 Cr.P.C.

The Court held:

“At the time of taking cognizance, the court
has to see whether a prima facie case is made out
to proceed against the accused. Under Section 319
Cr.P.C., though the test of prima facie case is the
same, the degree of satisfaction that is required is
much stricter. A two-Judge Bench of this Court in
Vikas v. State of Rajasthan, 2013 (11) SCALE 23,
held that on the objective satisfaction of the court a
person may be ‘arrested’ or ‘summoned’, as the
circumstances of the case may require, if it appears
from the evidence that any such person not being
the accused has committed an offence for which
such person could be tried together with the already
arraigned accused persons.”

The Court further laid emphasis that such power is not to be

exercised in casual and cavalier manner being discretionary and

extraordinary. The Court held:

“Power under Section 319 Cr.P.C. is a
discretionary and an extra-ordinary power. It is to
be exercised sparingly and only in those cases
where the circumstances of the case so warrant. It
is not to be exercised because the Magistrate or the
Sessions Judge is of the opinion that some other
person may also be guilty of committing that
offence. Only where strong and cogent evidence
occurs against a person from the evidence led
before the court that such power should be
exercised and not in a casual and cavalier manner.”

While answering the question, pertaining to the nature of

satisfaction required to invoke power under Section 319 Cr.P.C. to

arraign an accused, the Court answered the question as under:

(5 of 5)
[CRLR-1484/2017]

“Though under Section 319(4)(b) Cr.P.C.
the accused subsequently impleaded is to be
treated as if he had been an accused when the
Court initially took cognizance of the offence,
the degree of satisfaction that will be required
for summoning a person under Section 319
Cr.P.C. would be the same as for framing a
charge. The difference in the degree of
satisfaction for summoning the original
accused and a subsequent accused is on
account of the fact that the trial may have
already commenced against the original
accused and it is in the course of such trial
that materials are disclosed against the newly
summoned accused. Fresh summoning of an
accused will result in delay of the trial-
therefore the degree of satisfaction for
summoning the accused (original and
subsequent) has to be different.”

In the instant case, trial is almost on the verge of completion

and the learned Court below in exercise of its discretion, has

declined to arraign second respondent as an accused, in my

opinion, it has not committed any illegality or impropriety in

exercise of its discretionary power while passing the impugned

order.

Therefore, viewed from any angle, no interference with the

impugned order is warranted and consequently the revision

petition fails and same is hereby dismissed.

Accordingly, the stay petition also stands rejected.

(P.K. LOHRA)J.

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