RAM KHILADI & ANR. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Aggrieved by the order dated 6.10.2009, passed by the Additional Sessions Judge, (Fast Track No. 3), Bharatpur, Camp Bayana, whereby the learned Judge has accepted the application under Section 319 Criminal Procedure Code and issued process against the petitioners, the petitioners have challenged the same before this Court.

(2.) Brief facts of the case are that on 30.5.2007 one Bhagwan Singh submitted a report at Police Station Bayana with regard to an incident which occurred on 27.5.2007 around 7.00-8.00 AM. According to the report, while Bhagwan Singh and his son, Pradeep were sitting inside their house, the present petitioners along with Biri Singh, Sahib Singh, and Gyan Singh tresspassed into their house. The petitioner No. 1, Ram Khiladi, an ex-Sarpanch, exhorted others to kill complainant and his son. Consequently, Rameshwar hit Pradeep on his head with a lathi (bamboo stick), Jasmat also hit Pradeep near his ear with a lathi. Resultantly, Pradeep became unconscious. On the basis of this report a F.I.R., F.I.R. No. 273/2007, was chalked out for offences under Sections 147, 148, 149, 452, 323, and 504 Indian Penal Code. However, as the X-ray showed presence of fracture in parietal region, subsequently Section 307 Indian Penal Code. was added. After completing the investigation, the police submitted challan against Rameshwar, Biri Singh, Sahib Singh and Gyan Singh for the offences under Sections 323, 452, and 307/34 Indian Penal Code. But did not file charge sheet against the present petitioners. During the course of trial, the learned trial Judge recorded testimony of seven witnesses, PW-1 to PW-7. Thereafter, the learned Addl. Public Prosecutor submitted an application under Section 319 Criminal Procedure Code Vide order dated 6.10.2009, the learned trial Judge accepted the application and issued process against the petitioners. Hence, this petition before this Court.

(3.) Mr. Chaturvedi, the learned counsel for the petitioner has contended that power under Section 319 Criminal Procedure Code is a vast one, therefore it should be used sparingly. According to the complainant himself there is animosity between the complainant and the accused party. Moreover, the allegation against the petitioner No. 1 is that he exhorted others to commit the crime, and no other overt act has been assigned to him. Thus, the petitioners are being implicated falsely. Secondly, the falsity of the case is also apparent by the fact that there is delay in lodging of the F.I.R. Although the incident is alleged to have occurred on 27.5.2007, but the F.I.R. was not lodged till three days later, as it was lodged on 30.5.2007. Therefore, a story was cooked up by the complainant against the present petitioners. The learned Judge has ignored this aspect of the case. Lastly, the power under Section 319 Criminal Procedure Code should be exercised only when the Court is convinced that there is likelihood of conviction of petitioners.