Rakesh Kumari vs Balwan Singh & Ors on 8 March, 2010

Jammu High Court
Rakesh Kumari vs Balwan Singh & Ors on 8 March, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Cr Rev No. 4 OF 2009 AND BA No.86 OF 2009    
Rakesh Kumari  
Petitioners
Balwan Singh & ors. 
Respondent  
!Ms. Seema Sharma, Advocate for Petitioner 
^M/s G. S. Thakur and P.S. Parmar, Advocates for Respondents.Ms. Neeru Goswami,    
Dy.A.G. for the State

Mr. Justice J. P. Singh, Judge
Date: 08.03.2010 
:J U D G M E N T :

One Kundan Lal was killed on March 08, 2006 near Ban
Ganga, Katra, Jammu. Dis-satisfied with the arrest of only two
persons as against seven stated to have been nominated by the
petitioner, his mother, as the assailants, she approached this
Court by her Writ Petition seeking investigation into her son’s
Murder by the Central Bureau of Investigation or any other
independent Investigating Agency.

The judgment delivered by the Writ Court was modified by
a Letters Patent Bench of this Court directing re-investigation
into the petitioner’s son’s Murder by the Crime Branch of the
State Government. The re-investigation carried out, however,
reiterated involvement of only two persons.
During the currency of the trial before learned Sessions
Judge, Reasi, the prosecution moved an application seeking
impleadment of Balwan Singh, Sohan Singh, Suram Singh,
Vijay Singh and Narinder Singh, who had been named as
assailants by the petitioner Rakesh Kumari and her daughter
Neeru Devi in their deposition in the Court.
Rejection of the State’s Application by the Trial Court has
landed the petitioner again in this Court, where through this
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Criminal Revision, she seeks setting aside of the Trial Court’s
order of January 01, 2009.

I have considered the submissions of learned counsel for
the parties and gone through the records.
Learned Sessions Judge has rejected the State’s plea for
impleadment of persons other than those put up for Trial, on
two grounds viz (1) The State’s request was pre-mature and (2)
the statements of the petitioner and her daughter Neeru Devi,
were not sufficient enough to justify impleadment of persons
other than those put up for trial in the case.
While holding that the statements of the petitioner and her
daughter Neeru Devi were not sufficient to justify impleadment,
the trial Court has referred to various aspects of the case to
support its conclusion. Statement made by the petitioner, which
was sought to be supported by her daughter’s statement has
been found prima facie insufficient to justify impleadment in
view of the shortcomings noticed in the statements including
those of petitioner’s admission of nominating only two/three
persons as assailants, when she had informed the
Superintendent of Police, immediately after the occurrence, on
phone, and the statement of Neeru Devi where, during her
cross-examination she had hinted at her reaching the place of
occurrence along with her mother when Kundan Lal’s dead
body was lying near the wash room at the place of occurrence.
Before dealing with the issue projected by Ms. Seema
Sharma at the hearing of this Petition to urge that the Trial
Court had misread and misconstrued the petitioner’s statement
besides committing an error of law in rejecting the State’s
prayer for impleadment, regard needs to be had to the power of
the Court to implead persons other than those put up for trial in
3
the Court as contemplated by Section 351 of the Code of
Criminal Procedure, Svt. 1989.

It would be profitable in this respect to refer to what was
held by their Lordships of Hon’ble Supreme Court of India in
Kailash v. State of Rajasthan & anr., reported as 2008 AIR
SCW 1717, where dwelling on a similar provision in the Central
Code of Criminal Procedure, 1974, their Lordships held as
follows:-

“A glance at these provisions would suggest that
during the trial it has to appear from the evidence
that a person not being an accused has
committed any offence for which such person
could be tried together with the accused who are
also being tried. The key words in this Section are
“it appears from the evidence”..” any person”*..
“has committed any offence”. It is not, therefore,
that merely because some witnesses have
mentioned the name of such person or that there
is some material against that person, the
discretion under Section 319 Cr.P.C. would be
used by the court. This is apart from the fact that
such person against whom such discretion is
used, should be a person who could be tried
together with the accused against whom the trial
is already going on. This Court has, time and
again, declared that the discretion under Section
319 Cr.P.C. has to be exercised very sparingly
and with caution and only when the concerned
court is satisfied that some offence has been
committed by such person. This power has to be
essentially exercised only on the basis of the
evidence. It could, therefore, be used only after
the legal evidence comes on record and from that
evidence it appears that the concerned person
has committed an offence. The words “it appears”
are not to be read lightly. In that the Court would
have to be circumspect while exercising this
power and would have to apply the caution which
the language of the Section demands.

10. In a reported decision in Mohd. Shafi v.
Mohd.Rafiq & Anr.
{JT 2007 (5) SC 562}, to which
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one of us (Sinha,J.) was a party, this Court had
observed in para 7 as under:-

“Before, thus, a trial Court seeks to take recourse
to the said provision, the requisite ingredients
therefore must be fulfilled. Commission of an
offence by a person not facing trial, must,
therefore, appear to the Court concerned. It
cannot be ipse dixit on the part of the court.
Discretion in this behalf must be judicially
exercised. It is incumbent that the Court must
arrive at its satisfaction in this behalf.”
In the above case this Court referred to the
decision reported in Municipal Corporation of
Delhi v. Ram Krishan Rohtagi & ors.
[(1983) 1
SCC 1] and highlighted the following remarks
made in para 19 therein which are to the following
effect:

“19**.. But, we would hasten to add that this 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***..”

It was further stated in para 13:

“***.. it is evident that before a court exercises
its discretionary jurisdiction in terms of Section
319 of the Code of Criminal Procedure, it must
arrive at the satisfaction that there exists a
possibility that the accused so summoned in all
likelihood would be convicted. Such satisfaction
can be arrived at inter alia upon completion of the
cross-examination of the said witness. For the
said purpose, the Court concerned may also like
to consider other evidence.”

11. In Krishnappa v. State of Karnataka [(2004) 7
SCC 792] this Court, while relying on another
reported decision in Michael Machado v. Central
Bureau of Investigation
[(2000) 3 SCC 262] went
on to hold that the power under Section 319,
Cr.P.C. is discretionary and should be exercised
5
only to achieve criminal justice and that the court
should not turn against another person whenever
it comes across evidence connecting that other
person also with the offence. The Court further
observed:

“**a judicial exercise is called for, keeping in
conspectus of the case, including the stage at
which the trial has already proceeded with the
quantum of evidence collected till then, and also
the amount of time which the court had spent for
collecting such evidence***”

The Court further observed:

“The Court, while examining an application under
Section 319 Cr.P.C., has also to bear in mind that
there is no compelling duty on the court to
proceed against other persons. In a nutshell, it
means that for exercise of discretion under
Section 319 Cr.P.C., all relevant factors, including
the one noticed above, have to be kept in view
and an order is not required to be made
mechanically merely on the ground that some
evidence had come on record implicating the
person sought to be added as an accused.”
Petitioner’s counsel’s plea that the trial Court had
misconstrued and misquoted the statements of the petitioner
and her daughter is not borne out from the records.
The findings recorded by the Trial Court in coming to the
conclusion that impleadment of persons other than those put up
for trial was not warranted, too does not justify interference in
view of cogent reasons given by it in support therefor and the
legal position referred to hereinabove.
The Trial Court was required to assess whole of the
prosecution case as it stood produced before the Court at the
time of consideration of the State’s request for impleadment and
not a part thereof in isolation as suggested by the petitioner’s
learned counsel, which it has done rightly in the present case.

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For all what has been said above, the approach adopted
by the trial Court in rejecting State’s Application being premature
and leaving the issue open for its re-consideration when
some other evidence was brought on records by the
prosecution, does not justify interference in Revision,
additionally because, the order passed by the trial Court
deferring consideration of the issue till other prosecution
evidence was recorded, was interlocutory and not open to
Revision, in terms of Section 435 (4-a) of the Code of Criminal
Procedure.

No ground for interference with the order impugned in the
Revision Petition has, thus, been made out.
This Revision Petition is, accordingly, dismissed.
Bail Application No.86/2009 shall, accordingly, stand
disposed of as infructuous.

( J. P. Singh )
Judge
Jammu:

08.03. 2010
Ram Murti

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