JUDGMENT
N.P. Gupta, J.
1. Heard learned Counsel for the parties and perused the record.
2. By the impugned order, learned trial court has dismissed the petitioner’s application under Section 319 Cr.P.C. for taking cognizance against the present non-petitioners No. 2, 3 and 4 who had at the relevant time were Executive Engineer, Assistant Engineer and Junior Engineer respectively.
3. To grasp the controversy, the brief facts of the case are that on 17.4.1995 Kundanmal-the petitioner lodged the First Report at P.S. Kotwali, District Churu alleging inter alia that his house is situated in Ward No. 13 infront of the office of Electricity Department in which house he lives alongwith his family and his Agricultural land abutting thereto is in his name. It is also alleged that at about 1.30 P.M., the Officers of the Electricity Department being the Executive Engineer, Assistant Engineer, Junior Engineer alongwith their staff came and illegally tress passed into his land, removed the stones slabs, the accused persons Rewant Singh, Moti Singh, Chunni Lal, Bhanwar Singh, Kesara Ram etc. manhandled him and his son Ramlal, which resulted into injuries on the person of Ramlal, not only this, they caused damage in his shop and removed Rs. 50/- from his cash box, and on hearing the cry, the neighbours Laxmi Narayan, Jai Prakash etc. came and intervened. It was also alleged that the land was duly identified by the Revenue Authorities and thereafter, he had erected the stone slabs. On this report, a case under Sections 147, 148, 149, 323, 325, 447 and 504 IPC was registered. After due investigation, police submitted challan against the accused persons except the three non-petitioners, as in the opinion of the police, the offence was not proved against three non-petitioners.
4. During trial, some of the prosecution evidence was recorded being PW-1 Laxmi Narayan and PW-2 Kundanmal. These witnesses were examined on 4.9.1997 and since, these two witnesses are alleged to have established involvement of the present non-petitioners No. 2 to 4 in the commission of the offence for which the other accuseds have been charged, on 16.10.1997 itself, the present application under Section 319 Cr.P.C. was filed. It is contended in the application that these three persons had been let off by the investigating agency, in view of the persons being officers and could wield sufficient influence. It is also alleged that the two witnesses have clearly established the complicity of these persons in the offence as eye witnesses. With this, it was prayed that cognizance be taken against these three persons for the offences under Sections 447, 147, 148, 149, 323, 325 and 504 IPC.
5. Learned trial court by the impugned order, held that in the first report, it is held that the Executive Engineer, Assistant Engineer and Junior Engineer, with their staff came on the shop and tress passed over land, but in that report names of these three persons have not been disclosed, nor any one has stated anything against all these three persons except that these three persons were exhorting the other five accused persons to kill and burry, and to remove the stones slabs. Then, referring to the statement of PW-2, the learned trial court observed that the witnesses deposed that these three persons exhorted but the witness has not categorically clarified as to which person uttered what words. Likewise, referring to the statement of PW-1, the learned trial court also found that in the statement, in the court and in the FIR, it is not mentioned that electric pole was installed. The learned trial court then held that no active (overt) act has been attributed to these three persons, the precise abuse as used has not been disclosed and, therefore, the learned trial court concluded that there are no sufficient ground to take cognizance against these three persons.
6. It is contended by the learned Counsel for the petitioner that at this stage, the learned trial court was not supposed to closely marshall, the evidence and adjudicate upon its reliability or otherwise with respect of each allegation against each of the accused persons and judge its reliability on the anvil of his previous statement whether recorded under Section 161 or as mentioned in the first report or as collected during investigation. According to the learned Counsel, from the evidence, the complicity of the persons who has not been challened by the police, is sufficiently established, and learned trial court should have take cognizance.
7. As against this, learned Counsel for the non-petitioners relying upon a judgment of Hon’ble the Supreme Court in Michael Machado and Anr. v. Central Bureau of Investigation and Anr. reported in 2000 Cr.L.R. (SC) 265, contended that Supreme Court has clearly held that the power under Section 319 of the Code is extraordinary power which is conferred on the Court and should be used sparingly and only if compelling reasons exist for taking cognizance against the other persons against whom action has not been taken, and that unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, the court should refrain from adopting such a course of action (under Section 319 Cr.P.C.). On the strength of this authority, it is contended that a look at the statement of two witnesses recorded in the court does not sufficiently establish the complicity of these three non-petitioners No. 2, 3 and 4 in the commission of the offence.
8. I have gone through the statements and aim of the view that from the statement of Laxmi Narayan, it transpires that according to him, the three non-petitioners were commanding the other accused persons that if the petitioner does not allow dismantling the stone slabs, they should be removed even by man-handling him and thereupon, the accused persons removed the stone slabs and went to their office.
9. In the opening part of the statement, he had deposed that when he went on the site on hearing the cry, he found the officers and employees of the Electricity Department present there. According to him, the stone slabs were removed by Moti Singh, Bhanwar Singh, Rewant Singh, Kesara Ram etc. and the injury was caused by Moti Singh and other four accused persons. Likewise, PW-2 Kundan Lal-the petitioner has deposed that the three non-petitioners alongwith other five challaned accused persons came to his shop and the three officers are said to have directed the other three accused persons to remove the stone slabs and erect their pole (electric pole), on resisting, these persons are said to have commanded to give beating to the petitioner, whereupon injuries were inflicted on his persons. According to him, in this process, there was a hue and cry, whereupon the PW-1 Laxmi Narayan came. A look at the first report which is a written report lodged by the petitioner shows that according to this, the three non-petitioners No. 2, 3 and 4 alongwith five persons came to his shop and removed the stone slabs, on his resisting, he was given beating by the five persons and injuries were also caused to his son Ramlal. It is also alleged that Executive Engineer, Assistant Engineer and Junior Engineer were exhorting the other five persons to kill and burry them and remove the stone slabs. It is then alleged that on hearing the cries, the neighbours Laxmi Narayan and Jai Prakash came and intervened.
10. As appears from the investigation that the office of the then Electricity Board is situated on the other side of the road and the petitioner has been allotted the land by the competent authorities of the Custodian Department, and the dispute clearly appears to be that the electricity authorities wanted to either erect a pole or might be claiming the land to be belonging to them. It is a different story that the question is yet to be gone into as to whether the erstwhile Electricity Board had any right, title or interest or a bonafide claim over the land in question or any part thereof, but then the fact remains that the police did find that stone slabs were removed and beating was given and thus the offence under Sections 147, 148, 149, 447, 323, 325 and 504 were committed and found to have been committed by the five challaned persons only.
11. From perusal of the statement, in my view, at least, complicity of the non-petitioners No. 3 and 4, is sufficiently established for the purpose of Section 319 Cr. P.C. to take cognizance against these persons for the aforesaid offences with the aid of Section 109 IPC, inasmuch as according to the witnesses, they had simply exhorted the other five accused persons to remove the stone slabs. I make it clear that whatever observations I have made here are not in any manner to influence the trial of the case either ways. So far as the judgment of Hon’ble the Supreme Court in Michael Machado is concerned, the proposition laid down therein is to be followed and I am following it very much. However, it is significant to note that in that case as many as 49 witnesses had been examined and the trial was practically at a fag end and out of 49 witnesses, the Magistrate did not find any reason to implead the accused persons under Section 319. When the evidence of remaining three witnesses were recorded, the learned Magistrate passed the order on the basis of statement of these three witnesses. It was in the back drop of these circumstances that in para. 8, Hon’ble the Supreme Court had observed as under:
In this context it is pointed out that even according to the trial Magistrate “the first 49 witnesses did not utter a single word against any of them; last witnesses disclosed their role”. He has perused the evidence of the aforesaid three witnesses. No doubt there is a reference in their evidence to the role played by the appellants, but such reference is insufficient to make out a case of criminal conspiracy under Section 120-B IPC against the appellants….
12. It is in this very sequence Hon’ble the Supreme Court also considered yet another circumstance and in para 12 observed as under:
It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence….
As against this, in the present case, out of the prosecution evidence, so far only two witnesses have been examined on 4.9.1997 and the case was then fixed on 16.10.1997 and it is on this date itself that the application under Section 319 Cr.P.C. was filed and the same has been dismissed on very next date being 17.10.1997. Likewise, as found above, both the witnesses have deposed about the complicity of the non-petitioners No. 3 and 4.
13. So far as non-petitioner No. 2 is concerned, he is said to be the Executive Engineer at that time and, for the purpose of prima facie satisfaction, in order to find out the existence as to whether there are compelling circumstances, I have perused the statement of Laxmi Narayan recorded under Section 161 Cr.P.C., wherein though he has deposed the presence of three officers by office but has named only two non-petitioners No. 3 and 4 and not the non-petitioner No. 2. In these circumstances, I am not inclined to interfere with the impugned order so far as it declines to proceed against the non-petitioner No. 2 under Section 319 Cr. P.C. at this stage.
14. The net result is that the revision petition is partly allowed, the impugned order is set aside so far as it dismisses the application under Section 319 Cr.P.C. for taking cognizance against the non-petitioners No. 3 and 4. The learned trial court shall now issue process against the non-petitioners No. 3 and 4 for the offences under Sections 147, 148, 149, 447, 323, 325 and 504 I.P.C. all r/w Section 109 I.P.C. The learned trial court is directed to proceed ahead with the trial in accordance with law and complete it expeditiously. The record of the learned trial court be returned forthwith.
