SURESH KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Both these petitions arise out of the same impugned order, namely order dated 05.03.2011, passed by the Additional Session Judge (Fast Track) No. 2, Jhunjhunu, whereby the learned Judge had issued process under Section 319 Code of Criminal Procedure against the Petitioners. Thus, they are being decided together by this common judgment.

(2.) Being taken from S.B. Criminal Revision Petition No. 333/2011, the brief facts are that on 19.02.2009 the Parchabayan of Sheeshram, Respondent No. 2, was recorded by the police. In his Parchabayan, Sheeshram claimed that on 18.02.2009, while he was returning from the village Deda Ki Dhani, along with his nephew, he was assaulted by Rakesh Jat, Suresh Jat, Pradeep, Chidia and by two or four other persons, whose names he does not know. According to him, he was first assaulted by Pradeep and Rakesh and subsequently by others. According to him, these persons were armed with Lathies and Barchi. He further claimed that his nephew, Dilip, called up Dharmveer, who came there in his vehicle. He further alleged that he has suffered injuries on different parts of his body. Due to nervousness and anxiety, he cannot reveal as to who assaulted him at specific parts of his body. He further claimed that there was no animosity between him and the assailants. On the basis of this Parchabayan, the police Station Bagad, District Jhunjhunu, registered a formal FIR, FIR No. 13/2009 for offences under Sections 143, 341, 323 and 427 IPC. After a thorough investigation, while the charge-sheet was filed against the other co-accused persons, the police did not file any charge-sheet against Suresh Kumar, the Petitioner in S.B. Cr. Revision Petition No. 288/2011, and against Sanjay @ Chidia, the Petitioner in S.B. Cr. Revision Petition No. 333/2011. However, during the course of trial, after recording the testimonies of the witnesses, Sheeshram moved an application under Section 319 Code of Criminal Procedure for issuing process against the Petitioners. Vide order dated 05.03.2011, the learned Judge issued process against the Petitioners and took cognizance for offences under Sections 148, 341, 325, 325/149, 326, 326/149, 308 and 308/149 IPC. He further directed that the Petitioners should be summoned through non-bailable warrants of arrest. Hence, these petitions before this Court.

(3.) Mr. Ghanshyam Singh Sisodia, the learned Counsel for the Petitioner in S.B. Criminal Revision Petition No. 288/2011, has raised the following contentions before this Court: firstly, the power under Section 319 Code of Criminal Procedure is a vast power, which should be exercised sparingly and not routinely. The said power cannot be exercised mechanically solely on the ground that prima facie a case is made out against the alleged offender. Secondly, the power under Section 319 Code of Criminal Procedure stands on a different footing than the power under Section 190 Code of Criminal Procedure or the power under Sections 227 and 228 Code of Criminal Procedure Since Section 319 Code of Criminal Procedure uses the words "appears from the evidence", before the process can be issued under the said provision, the learned Judge is legally bound to sift through the evidence to see if a conviction can be recorded against the person. It is only when there is a very strong probability of conviction, that the power should be invoked. Thirdly, personal liberty is the heart and soul of the citizenry and of the Constitution of India. Therefore, before personal liberty can be cribbed, cabined and confined, a great care has to be taken by the learned trial court. After all, criminal jurisprudence is not divorced from the constitutional philosophy. Fourthly, there are no chances of a conviction as far as the Petitioner in his case is concerned. For, the witnesses have blandly claimed that the Petitioner had assaulted the injured with fists and kicks on his torso. However, the medical evidence does not corroborate this fact. In fact, according to the medical evidence, no injuries were suffered by the injured on his torso. Therefore, there is a contradiction between the ocular evidence and the medical one. Lastly, in case the power under Section 319 Code of Criminal Procedure has to be invoked, at the first instance summons should have been issued rather than non-bailable warrants. In order to buttress these contentions, the learned Counsel has relied upon the cases of Krishnappa v. State of Karnataka, 2004 7 SCC 792; Ram Singh and Ors. v. Ram Niwas and Anr., 2009 14 SCC 25; Sarabjit Singh and Anr. v. State of Punjab 7 Anr., 2009 16 SCC 46; Lal Suraj alias Suraj Singh and Anr. v. State of Jharkhand, 2009 2 SCC 696; Brindaban Das and Ors. v. State of West Bengal, 2009 3 SCC 329; Ram Kumar and Ors. v. State of Rajasthan and Anr.,2007 1 CrLR 871; and Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors., 2008 AIR(SC) 251.