- (1.) QUESTION that in what cases, cognizance should be taken under S. 319, Cr. P. C. and in what cases cognizance should not be taken under S. 319, Cr. P. C, has been elaborately dealt with by Hon'ble the Supreme Court in Sarojben Aswini Kumar Shah v. State of Gujarat (2011) 12 SCC 316 : (2011 AIR SCW 5829) and the points of conclusion have been formulated by the Hon'ble Supreme Court as under : - "(i) The Court can exercise the power conferred on it under S. 319 of the Code suo motu or on an application by someone. (ii) The power conferred under S. 319(1) applies to all Courts including the Sessions Court. (iii) The phrase "any person not being the accused" occurring in S. 319 does not exclude from its operation an accused who has been released by the police under S. 169 of the Code and has been shown in Column 2 of the charge -sheet. In other words, the said expression covers any person who is not being tried already by the Court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court. (iv) The power to proceed against any person, not being the accused before the Court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word "evidence" in S. 319 contemplates the evidence of witnesses given in Court in the inquiry or trial. The Court cannot add persons as accused on the basis of materials available in the charge -sheet or the case diary but must be based on the evidence adduced before it. In other words, the Court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it. (v) The power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that the other person be tried with the already arraigned accused. (vi) The Court while exercising its power under S.319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the Court to the constraints imposed in S. 319(4) that proceedings in respect of newly added persons shall be commenced afresh from the beginning of the trial. (viii) The Court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion." (Emphasis supplied)
(2.) NOW ,in the case in hand, the petitioner - complainant Smt. Sunita Agarwal has challenged the order dated 19 -6 -2012 passed by the Addl. Sessions Judge (FT), Chomu, District Jaipur in Criminal Revision No. 5/2012, titled as Smt. Sunita Agarwal v. State of Rajasthan, whereby the revisional Court has dismissed the revision of Sunita Agarwal and upheld the order dated 2 -4 -2012 passed by the Addl. Chief Judicial Magistrate, Chomu by which application under S. 319, Cr. RC. filed by Smt. Sunita Agarwal was dismissed by the Addl. Chief Judicial Magistrate, Chomu. I have perused the order dated 2 -4 -2012 passed in Criminal Regular Case No. 116/ 2009 by the Addl. Chief Judicial Magistrate, Chomu. After elaborate appreciation of the arguments of both the parties, the trial Court did not think it fit to take cognizance against the persons mentioned in the application under S. 319, Cr. P. C. The order of the trial Court dated 2 -4 -2012 was upheld on 19 -6 - 2012 by Addl. Sessions Judge (FT), Chomu also and the revisional Court also had expressed agreement with the reasonings given by the trial Court while dismissing the application of the petitioner under S. 319, Cr.P.C.
(3.) I have perused the order dated 19 -6 - 2012 as well as the final judgment of the trial Court dated 1 -2 -2013. The trial Court, by final judgment dated 1 -2 -2013 in Criminal Case No. 1167/2009 titled as State v. Rajesh Kumar etc., has acquitted Babu Lal and Sumitra Devi who are father -in -law and mother -in -law of the petitioner. The main accused - Rajesh Kumar who is husband of the complainant is absconding in the trial Court, so the case has not finally been decided in relation to him and it appears that standing warrant of arrest might have been issued against principal accused - Rajesh Kumar in the trial Court.;