R.S. Chauhan, J. - (1.) The petitioner has challenged the order dated 03.09.2009 passed by the Additional District & Session Judge (Fast Track) No.3, Jhunjhunu, Mukhayalay Nawalgarh, District, Jhunjhunu whereby the learned Judge has taken cognizance against the petitioner for offences under Sections 147, 148, 302/149 read with Section 120-B IPC., while allowing an application filed by the complainant under Section 319 Cr.P.C.
(2.) Mr. Anshuman Saxena, the learned counsel for the petitioner, has strenuously contended that after a thorough investigation, the police had concluded that the petitioner was not involved in the case. Therefore, the police did not file a charge-sheet against the petitioner. This conclusion is further buttressed by the testimony of the I.O. In his cross-examination, he has clearly opined that during investigation, he discovered that the petitioner was not involved in the commission of the crime. Secondly, once the chargesheet was not submitted against the petitioner, the complainant party was free to file a protest petition. However, no protest petition was filed by the complainant party. Therefore, nothing new has been brought on record to show the involvement of the present petitioner in the alleged case. Thirdly, the testimonies of Bhagirath (PW.5), Sushila (PW.7), Rajkumar (PW.8), Vijendra Singh (PW.13), Maniram (PW.14) are full of contradictions. Therefore, these testimonies cannot form the basis for taking a cognizance under Section 319 Cr.P.C. For, the power under Section 319 Cr.P.C. should be exercised sparingly and only in those cases where a strong possibility of recording a conviction does exist. However, as the testimonies of these witnesses are full of contradictions, there is hardly any possibility of recording a conviction against the present petitioner. Lastly, some of the witnesses such as Sushila (PW.7) is the wife of the deceased, Vijendra Singh (PW.13) is the brother of the deceased, therefore, they are interested witnesses, who have falsely implicated the petitioner for the first time in the Court. Therefore, the testimonies of interested witnesses should not be relied upon while invoking the power under Section 319 Cr.P.C. In order to buttress this contention, he has relied upon the case of Michael Machado & Anr. v. Central Bureau of Investigation & Anr. [2000 (3) SCC 262].
(3.) On the other hand, Mr. Javed Chaudhary, the learned public prosecutor, has vehemently opposed this petition and has contended that although the power under Section 319 Cr.P.C. should be used sparingly, but if there is an overwhelming evidence pointing to the involvement of a person who has not been charge-sheeted by the police, then the learned trial court would be justified in invoking its power under Section 319 Cr.P.C. Secondly, at the time of taking cognizance about the commission of an offence against a person who has not been charge-sheeted, the court cannot meticulously examine the evidence so as to examine the contradictions which may exist in the case of the prosecution. The court is concerned only with the existence of a 'strong' prima facie case. According to the learned public prosecutor, recently, in the case of Hardeep Singh v. State of Punjab & Ors., Criminal Appeal No.1750/2008 decided on 07.11.2008 , the issue, whether the evidence should be sufficient to record a conviction before power under Section 319 Cr.P.C. can be invoked, has been referred to a Larger Bench of the Apex Court. Therefore, the reasoning given in the case of Michael Machado & Anr. (supra) is now questionable. Thirdly, according to the evidence of the witnesses mentioned above, there is a 'strong' prima facie case against the petitioner. Therefore, the learned trial court was justified in invoking its power under Section 319 Cr.P.C. Hence, he has supported the impugned order.;