Sandeep Mehta, J. - (1.) THE instant miscellaneous petition has been filed by the petitioner challenging the order dated 06.8.2010 passed by the learned Sessions Judge No. 2, Bikaner in Criminal Revision No. 90/2009, whereby he has affirmed the order dated 22.4.2009 passed by the learned Judicial Magistrate, First Class, Nokha, district Bikaner taking cognizance against the petitioner and summoning her as an additional accused to stand trial with the charge -sheeted accused for the offence under Section 302 /34 IPC. Succinctly stated, the facts of the case are that the complainant -respondent No. 2 filed an FIR No. 75/2009 at the Police Station, Nokha against Shyam Sunder and the petitioner Smt. Sarla Devi for the offences under Section 302 and 302 /34 IPC. The allegation in the FIR was that while the complainant, his brothers Babu Lal, Paan Mal and Ram Swaroop, were going towards their house from the house of the Sarpanch Smt. Shanti Devi, at that time the accused Shyam Sunder and Sarla Devi accosted them. Both were armed with Lathis in their hands. The accused Shyam Sunder shouted that the enemies should be done away and then gave a blow on the head of Babu Lal by the S.B., Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.)
(2.) LATHI , due to which he fell down. Petitioner Smt. Sarla was also making an extortion for killing the enemies. After the assault, the accused persons ran back to their house. The first informant and Paan Mal, seeing the serious condition of Babu Lal, arranged for taking him to the P.B.M. Hospital, Bikaner in an Ambulance but he expired on the way to the hospital. It was alleged that as a result of the assault made by the accused Shyam Sunder and the petitioner Smt. Sarla, Babu Lal received injuries, due to which he expired. On the post -mortem of the body of the deceased being conducted, two injuries caused by blunt weapon were found existing on his head and the cause of death of was opined to be ante -mortem head injury. The police, on completion of the investigation, proceeded to file a charge -sheet only against the accused Shyam Sunder for the offence under Section 302 IPC and chose not to charge -sheet the petitioner. The complainant, on filing of the charge -sheet, as stated above, filed an application under Section 190 Cr. P.C. seeking taking of cognizance and summoning the petitioner for the offence under Section 302 /34 IPC. The learned trial Court, by the order dated 22.4.2009, accepted the application filed by the complainant under Section 190 Cr. P.C. proceeded to summon the petitioner as an additional accused in this case whilst accepting the application filed by the complainant under Section 190 Cr. P.C. The petitioner challenged the order of the learned trial Court by filing a revision petition, which too has been rejected, as stated above. Now the petitioner has approached this court by way of the instant miscellaneous petition challenging the orders of the learned courts below and praying for quashing the order summoning her as an additional accused in this case.
(3.) LEARNED counsel for the petitioner, relying on a decision of the Hon'ble Apex Court in the case of Jile Singh Vs. State of U.P. & Anr., reported in : 2012 (1) SCALE 452, has submitted that the learned Magistrate, on filing of a partial negative report by the police in relation to the FIR, has no power S.B., Criminal Misc. Petition No. 1348/2010 (Smt. Sarla Devi Vs. State of Rajasthan & Anr.) to summon the non -charge -sheeted person as an additional accused and that an additional accused can only be been summoned after evidence being recorded at the trial. He submitted that power of summoning additional accused is only provided under Section 319 Cr. P.C. Resultantly, it has been prayed that the impugned order summoning the petitioner as additional accused in the case deserves to be quashed. Per contra, learned counsel for the respondent submits that in this case the learned Magistrate has exercised the powers of summoning the additional accused at the initial stage, i.e. just when the charge -sheet had been filed and the case had not been committed to the court of Sessions. He submits that the powers under Section 190 Cr. P.C. read with Section 204 Cr. P.C. are very much available to the learned Magistrate at that stage because the intention of the Legislature is not that the Magistrate is bound to accept the report of the investigation as filed by police officer. He submits that the discretion of the court to take cognizance of the offence and to summon the offenders who are responsible for commission of the offence, cannot be governed or controlled by the opinion expressed by a police officer in the charge -sheet. He, therefore, prays that there is no reason to interfere in the order of the learned Magistrate summoning the petitioner as an additional accused in this case as affirmed in revision. Learned Public Prosecutor has also supported the order of the learned Magistrate.;