- (1.) This criminal revision petition had been filed by accused Kamlesh S/o Hanuman Prasad and his sister Kusum daughter of Hanuman Prasad against the order dated 26.9.2011 which was passed in Sessions Case No. 59/2011 (State v. Hanuman Prasad etc.) by Sessions Judge, Pali whereby application of complainant Shyam Singh Rajput, Advocate filed under Section 319, Cr.P.C. was accepted by that court and both the accused persons were called to face the trial along with other accused-persons who were already facing trial under Section 307 IPC etc. At the stage of admission, final arguments on merits had been heard by me in this case by consent of both the parties.
(2.) It is an admitted position that in the trial, nineteen prosecution witnesses have been already been examined and then after six witnesses on behalf of the defence have also been examined in the trial Court. The case is at the fag end and the trial Court has fixed the file for final arguments.
(3.) Name of Smt. Kusum has not been mentioned in the FIR as well as in the statement recorded under Section 161 Cr.P.C. of complainant Shyam Singh, Advocate, so on that count alone, Smt. Kusum is entitled to get an order in her favour in this matter from this Court. So far as another accused Kamlesh is concerned, the trial Court had taken cognizance against him after examination of seventeen witnesses. In my opinion, at that belated stage, cognizance should not have been taken by the trial Court because cognizance at this belated stage means de novo trial of other three accused persons who are facing trial since last about seven years. This fact also cannot be overlooked if the order taking cognizance against Kamlesh S/o Hanuman Prasad is upheld by this Court at this stage, then all the nineteen witnesses of the prosecution and all the six witnesses of defence will have to be called again for their re-examination. This de novo trial will frustrate the whole cause of justice in the case in the trial Court.;