GAJJU ALIAS GAJENDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In a case under section 324 I.P.C. challan was presented against Gopal. During the pendency of the case before the learned Judicial Magistrate Kekri, an application was made for taking cognizance against the present petitioner, namely Gajju alias Gajendra. The trial court disposed of this application on 16-2-1983 holding that a prima facie case was not made out against the petitioner. The complainant preferred a revision petition which came to be disposed of by the Additional Sessions Judge No.1, Ajmer on 7-2-1987 and by his order he directed that cognizance be taken against the present petitioner also for the offence under section 394 I.P.C. This decision of the Additional Sessions Judge has been challenged in this petition. The contention of the learned counsel for the petitioner is that it is not open to the court to take proceedings under section 319 Cr. P.C. unless there is some material before it, besides the papers which were submitted alongwith the challan. The material contemplated under section 319 Cr. P.C. is some evidence which has been recorded by the trial court itself on the basis of which it can be said that some other person can also be said to have committed an offence. In the present case the Additional Sessions Judge has not taken this matter into consideration while ordering that cognizance be taken against the petitioner also.

(2.) This Court in Shyodan Singh and others v. State of Rajasthan1, and other cases has dealt with the divergence of the views which existed earlier on this point and after considering the relevant provisions of the Evidence Act and the Code of Criminal Procedure, 1973, it has been held that the police statement recorded under section 161 Cr. P.C. cannot be treated as evidence for the purpose of section 319 Cr. P.C. The earlier decisions in the case of Ajayab Singh and Harji Ram and similar other decisions were over-ruled. In view of this D.H. authority of our own High Court it can be said that the learned Additional Sessions Judge has acted illegally in interfering with the decision of the learned trial court while ordering that the cognizance be taken against the present petitioner. I have gone through the proceedings sheet of the trial court as shown to me by Mr. Dhankar and I am satisfied that upto 16-2-1983 no witness had been examined by the trial court and as such it cannot be said that there is evidence before the court on the basis of which it - could proceed under section 319 Cr. P.C.

(3.) In the result this petition is accepted and the order of the learned AddI. Sessions Judge is quashed. It is made clear, that if after recording evidence the trial court considers it proper to proceed under section 319 Cr. P.C. then it will be open to it to do so. By this I do not mean to say it is necessary to proceed against the petitioner. 1. D B Cr. Misc Application No. 41/1981 (Raj)