Allowed

Babu Ors. v. State

Rajasthan HC15 Feb 2018CRLR/432/2005

Case brief

AI extract

What is this about?

High Court of Rajasthan allowed an S.B. Criminal Revision challenging the summoning of four petitioners as additional accused under Section 319 CrPC. The Court held that since no overt act was attributed and they were absent during occurrence, the Trial Court committed an error in summoning them, setting aside the order.

What did the court decide?

Impugned order dated 27.4.2005 summoning petitioners No. 3 and 4 as additional accused was set aside; prosecution application under Section 319 CrPC qua petitioners No. 3 and 4 was dismissed.

Babu Ors. Vs State — Criminal Trial and Appeal | Rajasthan HC (2018)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

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BENCH AT JAIPUR

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S.B. Criminal Revision No. 432/2005.

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Vishambhar S/o Raghuveer

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Babu S/o Baghol

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Dharm S/o Baghol

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Rajaram S/o Babu

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All by caste Gurjar R/o Village Jhumriya PS Bayana, District Bharatpur.

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Versus

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The State of Rajasthan Through PP

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For Petitioner(s) : Shri N.A. Naqvi, Sr. Adv. with : Shri C.P. Meena For State : Shri R.S. Shekhawat, P.P.

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For Complainant : Shri V.K. Jain

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HON'BLE MRS. JUSTICE SABINA

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Judgment / Order

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15/2/2018

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Petitioners have filed this petition challenging the order dated 27.4.2005, whereby application moved by the prosecution under Section 319 Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’). for summoning the petitioners as additional accused was allowed.

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So far as petitioner No.1 is concerned, this petition was got dismissed as withdrawn qua him vide order dated 24.5.2005.

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So far as petitioner No.2 is concerned, learned counsel for the petitioner has submitted that the said petitioner has died on 29.7.2005 and petition qua him is rendered infructuous.

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Ordered accordingly.

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Heard qua petitioners No. 3 and 4.

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Learned counsel for the petitioners No. 3 and 4 has submitted that, although, petitioners No. 3 Dharm and petitioner No. 4 Rajaram are named in the FIR as well as by the witnesses in their statements but no overt act is attributed to the said petitioners. Petitioners No. 2 and 4 were found innocent during investigation as it transpired during investigation that they were not present at the place of occurrence.

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Learned State Counsel, who is assisted by the learned counsel for the complainant, has opposed the petition.

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Section 319 Cr.P.C. reads as under :-

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“319. Power to proceed against other persons appearing to be guilty of offence.

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(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.

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(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.

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(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.

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(4)Where the Court proceeds against any person under sub- section (1), then-

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(a)the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

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(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.”

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Thus, as per the above provision, court has ample power to summon a person to face the trial as an additional accused with the accused already facing trial, if during trial it transpires that there is material on record to summon the said person as an accused to face the trial alongwith the accused already facing trial.

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In the present case, petitioners No. 3 and 4 were found innocent during investigation and challan was not presented against them. During the pendency of the trial, prosecution moved an application under Section 319 Cr.P.C. for summoning the petitioners as additional accused. A perusal of the statements of the witnesses recorded during trial reveal that, although, they have named petitioners No. 3 and 4 as accused present at the spot but no specific overt act has been attributed to them. In-fact, as per the witnesses accused Vishambhar had given a stick blow on the head of injured Hotam @ Purshaottam, whereas accused Prakash had fired at deceased Laxmi Bai. During investigation it transpired that the petitioners No. 3 and 4 were not present at the spot at the time of the alleged occurrence. Since no overt act has

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been attributed to the petitioners, Trial Court fell in error in ordering the summoning of petitioners No. 3 Dharm and petitioner No. 4 Rajaram to face the trial as additional accused.

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In the facts and circumstances of the present case, it could not be said that there was enough material on record to order the summoning of petitioners No. 3 and 4 to face the trial as additional accused.

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Accordingly, this petition is allowed. Impugned order dated 27.4.2005, whereby petitioner No.3 Dharm and petitioner No.4 Rajaram were ordered to be summoned as additional accused is set aside. Consequently, application moved by the prosecution under Section 319 Cr.P.C. qua petitioners No. 3 and 4 is dismissed.

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(SABINA)J.

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Mrg./9

Babu Ors. v. State

Case brief

What is this about?

What did the court decide?

Babu Ors. v. State

Case brief

What is this about?

What did the court decide?

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