GARG, J. - (1.) BOTH the revision petitions are being decided by this common judgment as both have been preferred against the order dated 4. 4. 2000 passed by the learned Special Judge, SC/st Cases, Merta in Sessions Case No. 123/96 (6/96) by which he rejected the application filed under Sec. 319 Cr. P. C. on behalf of the prosecution to summon Garib Ram, as an additional accused.
(2.) THEY arise in the following circumstances :- On 15. 10. 1995 at about 1. 40 AM, PW-4 Rama Kishan gave a parchabayan to the Police Station Gotan District Nagaur that on 14. 10. 1995 he, PW-1 Ramrakh and Teja Ram were going on a Motor- cycle and since near the house of accused Mangilal, Jeep and Truck were standing, there was no place to go towards the street and, therefore, they stopped the motor cycle and near the Jeep and Truck, Garib Ram, Mangilal, Ramniwas and Nainaram were standing and they asked them why they had come there and PW-1 Ramrakh told that they were going to house and upon this, they started beating PW-1 Ramrakh and at that time, accused Mangilal was having a dhariya, accused Nainaram was armed with gun and Garib Ram and accused Ram Niwas were armed with lathies and then, they also beat Tejaram and on intervention by PW-4 Rama Kishan, he was given lathi blow on his head by Garib Ram, as a result of which he fell down on the earth and PW-1 Ramrakh and Tejaram also fell down on the earth and the accused Andai, Jadawali and Sowli also beat them with lathies and on making hue and cry by them, Babulal and Poonaram (hereinafter referred to as the deceased) came and when deceased entered in the pole, Garib Ram gave lathi blow on the month of deceased and accused Mangilal and Garib Ram told accused Nainaram that gun fire be made towards deceased and upon this accused Nainaram made gun fire on deceased, as a result of which, deceased died. On this parchabayan, police registered the case and started investigation. During investigation, post mortem of the dead body of the deceased was got conducted and both the injured PW-4 Rama Kishan and PW-1 Ramrakh were got medically examined and both received grevious and simple injuries including injuries by sharp edged weapon. From the post mortem report, it appears that the deceased died due to gun shot injuries and 20-25 lacerated wounds were found on his body and 8 pallets were recovered from lung tissue. After usual investigation, police submitted challan against the accused Mangilal, Jai Ram, Ram Niwas, Nainaram, Dharam Veer Singh, Jadawali, Andai and Bhanwari @ Sowali in the Court, but no challan was filed against the person to be added as additional accused, namely, Garib Ram. The accused Dharamveer Singh was charged for the offence under Secs. 167, 218 IPC and rest accused persons were charged for the offence under Sections 148, 302/149 (or 302), 326/149 (or 326), 325/149, 323/149 and 307/149 IPC. When the trial of that case before the learned Special Judge was going on, an application under Section 319 Cr. P. C. was filed on 30. 3. 2000 on behalf of the prosecution stating inter-alia that since the name of the person to be added as additional accused, namely, Garib Ram is found in the FIR and the two star witnesses, who are injured, namely, PW-1 Ramrakh and PW-4 Rama Kishan have not only mentioned the name of Garib Ram, but they have also attributed over-act on his part and, therefore, Garib Ram should also be summoned as an additional accused. The application under Section 319 Cr. P. C. filed on behalf of the prosecution was opposed by the other accused persons, who were facing trial in the trial court. The learned Special Judge, SC/st Cases, Merta through his impugned order dated 4. 4. 2000 rejected the application under Sec. 319 Cr. P. C. filed on behalf of the prosecution holding inter-alia that the position would be clear after recording the evidence of the IO and since at that time IO was not examined. therefore, he came to the conclusion that no case for summoning Garib Ram as an additional accused was made out at that stage and he has also given some other reasons while rejecting that application. Aggrieved from the said order dated 4. 4. 2000 passed by the learned Special Judge, SC/st Cases, Merta, the State of Rajasthan as well as the complainant Rama Kishan filed revisions before this Court. It may be stated here since in the revision petition No. 282/2000 filed by the State of Rajasthan, Garib Ram has been mentioned as accused respondent No. 8 and notice was issued to him, but he has not put in appearance after service of notice, therefore, main order would be passed in that revision because of the simple reason that the revision petitioner No. 182/2000 filed by the complainant Rama Kishan, Garib Ram was not impleaded as accused-respondent and, therefore, in absence of that, the revision petition filed by the complainant Rama Kishan was not maintainable and it was to be tagged with the revision petition filed by the State of Rajasthan. The learned Public Prosecutor has argued that the impugned order dated 4. 4. 2000 passed by the learned Special Judge is wholly erroneous and suffers from basic infirmity and illegality, as there is sample evidence in the present case, which shows involvement of Garib Ram. Hence, it was prayed that the revision petition filed by the State of Rajasthan be allowed and the impugned order passed by the learned Special Judge, SC/st Cases, Merta be set aside and the application under Sec. 319 Cr. P. C. filed on behalf of the prosecution be accepted and Garib Ram be summoned as an additional accused. No one appeared on behalf of the accused respondents despite service of notice. I have heard the learned Public Prosecutor and perused the record of the case.
(3.) BEFORE appreciating the contentions of the learned Public Prosecutor, legal aspect of Section 319 Cr. P. C. and the powers of the Court are to be seen. Section 319 Cr. P. C. gives simple powers to any court to take cognizance and add any person not being an accused before it and try him alongwith the other accused. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have been arrayed as accused against whom proceedings have been quashed have also committed the offence, the court can take cognizance against them and try them alongwith the other accused. But 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. Vide Municipal Corporation of Delhi vs. Ram Kishan Rohtagi (1 ). The expression "any person not being the accused" occurring in Section 319 Cr. P. C. clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like section 319 (1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression. Both under Sections 193 and 209 the commitment is of "the case" and not of "the accused". Vide Joginder Singh vs. State of Punjab ;