- (1.) THIS petition u/s. 482, Cr. P. C. has been preferred against the order dated 21st June, '88, passed by the Addl. Sessions Judge, City, Jaipur, in a revision petition, whereby he has held that a revision does not lie against aninterlocutory order. The Judicial Magistrate No. 11, Jaipur City, Jaipur passed an order taking conizance against the petitioner on 15th July, '86 and that order was challenged in revision. The learned Addl. Sessions Judge passed the impugned order dated 21st June,'88.
(2.) TO understand the controversy, some fact of the case may be mentioned here briefly. One Ram Kishan lodged a report at P. S. Shastri Nagar on 20th March, 1982 in the night at 12. 45 AM alleging that on that night at about 11pm, when he returned to his house and was closing its outer door, 8-10 persons, after breaking the wall, entered into his house and started beating him. He was dragged out of the house, and when he was tried to be rescued by his family members, he, somehow or other, released from their clutches and ran away to the upper story of the house. Rekharam followed him and gave him a stone-blow on his head and Hanuman and Jagdish were also beaten up. The informant named 7 persons in his complaint, and apart from them, some 10-12 persons were also there in that beating. On this complaint, a case u/ss. 147, 452, 323 & 336, IPC, was registered; and after completing usual investigation, the police submitted a challan. The learned trial court framed charges against the accused persons. But, no challan was submitted against Rekharam accused. During trial, the trial court recorded statements of 4 witnesses. In their statements. Ramkishan PW 1. Ratandevi PW 3 and Laxmi Devi PW 4, implicated Rekharam also. After recording of statements of these witnesses, the complainant moved an application in the trial court u/s. 319, Cr. P. C, implicating petitioner Rekharam as one of the accused. The learned trial court after hearing on the application, passed order on 15th July,'86, and took cognizance against Rekharam, and he was summoned. Aggrieved by that order, Rekharam preferred a revision petition, and the learned Addl. Sessions Judge, vide his order dated 21st June, '88, rejected the said revision petition holding that the order of the learned Magistrate date 15th July, '88, is an interlocutory order, and so, no revision lies against that order. Feeling aggrieved by that order date 21st June, '88, the present misce-leanious petition u/s. 482, Cr. P. C. has been preferred by Rekharam petitioner. The learned counsel for the petitioner argued that in the FIR, complaint Ramkishan mentioned the name of Rekharam as one of the accused. In his statement u/s. 161, Cr. P. C, also, he named Rekharam as one of the accused who had come along with the other accused persons, The police recorded statements of the other witnesses u/s. 161, Cr. P. C. , but none of the witnesses stated that Rekharam was also present along. with the other accused persons. The argument is that on account of this fact, the police did not file any challan against Rekharam; however, during the recording of evidence in court, Ramkishan, Ratandevi and Laxmidevi took the name of Rekharam as one of the accused, who had come along with other accused persons. So, the argument is that the court-statements of Ratandevi and Laxmidevi are contiadictory ones, because, they did not say in their statements recorded u/s. 161, Cr. P. C, and so, their statements should not be believed. Leaving these two statements, there remains the solitary statement of complainant Ramkishan. The statement of Ramkishan was already with the police u/s 161. Cr. P. C. wherein he had named Rekharam, He also mentioned the name of Rekharam in the FIR and in his court-statement also he stated as such. In spite of this fact, the police did not file any challan against Rekharam. So, the solitary statement of Ramkishan in the court wherein he deposed against Rekharam is not sufficient to take cognizance against Rekharam, argued the learned counsel, who, in support of his argument, relied on the case of Gyasiyai vs. The State of Rajasthan (1) While referring to this case it was argued that in that case, cognizance was taken by the trial court and against that order of taking cognizance, a petition u/s. 482, Cr. P. C. was filed; and this Court, while accepting the petition quashed the order of taking cognizance. In view of this cass-law, it was argued that here in the present case the statements of Mst. Ratandevi and Laxmidevi are self-contradictory to their own statements recorded u/s, Cr P. C. ,and that of Ramkishan is of that nature, which was not believed by the prosecution, and that was the reason that they did not submit any challan against Rekharam. Thus, the argument of the learned counsel was that there is no case made out against Rekharam and the order taking cogniz- ance against the petitioner, Rekharam, is an illegal order which should be quashed u/s. 482, Cr. P. C, Mr. Rathoe, the learned counsel for non-petitioner No. 2 submitted that the case of Gyasi and others (supra), is not applicable to the present case according to him, in that case the police had submitted a challan against 13 persons but no challan was submitted against the petitioners in that case. The learned Magistrate had taken cognizance against the petitioner u/s. 190 (b), Cr. P. C. and that order of the learned Magistrate was challenged u/s. 482, Cr. PC. while dealing with the circumstances in that case, it was held that from the record and the challan submitted by the police even, there was no prima facie case against the petitioners and the order of taking cognizahce was quashed In the present case, the position is not similar, but a different one. Here, cognizance was not taken by the Magistrate u/s. 190 (b), Cr. P. C. but, it was taken on an application u/s. 319, Cr. P. C. after recording some evidence and looking to the material on record the learned Magistrate was of the opinion that a case was made out for taking cognizance against the petitioner, Rekharam, and he passed the order date 15th July, '88, So there is difference between the present case and that of Gyasiya (supra), argued Mr. Rathore. I agree with the contention of Mr. Rathore. It has been decided by this Court, in a series of cases that this Court should not interfere in the order of taking cognizance, u/s, 482, Cr. PC But, the case of Gyasiya (supra), is a different one. U/s. 482, Cr. P. C, this Court can interfere in such matters, when it finds that actually, there is no prima facie case against the petitioner. Only in such circumstances, this Court should interfere u/s. 482, Cr. P. C. But, if there is some evidence and on the basis of that evidence, the learned Magistrate has taken cognizance, then, this Court should not interfere in its inherent powers u/s. 482, Cr. P. C. In such circumstances, the only course open to the petitioner is to raise those objections before the trial court, at the time of framing of charges and the trial court can be satisfied that there is no prima facie case even to frame charge. Even if the trial court does not agree with the petitioner, then, certainly, he can come to this Court u/s. 482, Cr. P. C. and in these circumstances, this Court can examine the record and come to the conclusion/finding whether any prima facie case is made out or not. So, in rare circumstances, this Court can interfere in the order of taking cognizance by the trial court.
(3.) MR. Rathore based his argument on the case of Krutibasa Panda vs. State of Orissa (2 ). The facts of that case were similar to the present case. In that case also, a FIR was lodged, where in certain persons were implicated in the commission of the offence. After recording evidence in that case, on an application u/s. 319, Cr. P. C, the learned Magistrate granted the application and took cognizance against certain persons. They challenged that order. And, the learned Judge of the Orissa High Court, observed as under: "in view of the evidence of PW s. 3, 4 & 5 making allegations against the petitioners and also in view of the fact that in. the first information report, itself, petitioners were implicated with the occurrence, it cannot be said that the learned Magistrate has arbitrarily exercised his power under S. 319, Cr. P. C. It is a wellknown principle of criminal jurisprudence that cognizance of an offence is taken and offenders are tried when it is brought to the notice of the court that they are involved in the offence. In view of the allegations in the FIR, it cannot be said that the evidence of PWs. 3, 4 & 5 was an afterthought and the entire case is a concoction. At any rate, that would be a matter to be decided in the trial itself. In view of the admitted position that PWs. 3, 4 & 5 had deposed to the effect that petitioners were involved in the offence, the order of the learned Magistrate cannot be interfered with by this Court, at this stage. I, therefore, find no merits in this revision which is accordingly dismissed. The interim order dated 3rd Oct. , '83 passed in this revision is vacated and the learned Magistrate is directed to conclude the proceedings as expeditiously as possible. " Another law cited by Mr. Rathore is the case of Mahant Amarnath vs. State of Haryana (3 ). That was an appeal against an order passed u/s. 319, Cr. P. C. In that case also, certain eye-witnesses had deposed about participation of certain persons in the crime. ' In that case, an application was moved u/s. 319, Cr. P. C, which was accepted. That was a murder case; and the police had not submitted any challan against the appellant and 3 others in spite of the fact that their names were deposed by the witnesses in their statements u/s. 161, Cr. P. C. Then, during trial, after recording of statement of the 1 eye witness who had given details about the Participation of the 4 appellants, the court granted the application and implicated those persons as accused. That order was challenged before the Sessions Judge, but the contention was not accepted. Hon'ble Judges of the Supreme Court, in that matter, observed as under : ". . . Apart from the question as to whether the police statements recorded during the investigation really afford any justification to the police to show the apellant and three others (who were subsequently arraigned by the Sessions Court) in column No. 2 of the charge-sheet, the learned Sessions Judge had before him the evidence of Gobind Ram who gave details about the alleged participation of Mahant Amarnath and others which, according to him was in pursuance of conspiracy hatched by all of them and the learned Sessions Judge felt that such evidence warranted the impleading of Mahant Amarnath and three others as accused persons. It was sought to be urged before us that the details given by Gobind Ram at the trial had not figured in his statement under S. 161 and, therefore, the Sessions Judge ought not to have given the impugned direction. " The argument of the learned counsel for the petitioner was that the statements of Ratandevi and Laxmidevi are self-contradictory to their own statements u/s. 161, Cr. P. C, and so, they should not be believed. This is a matter of appreciation of evidence to be done finally by the trial court. This Court in such petitions, should not enter into the appreciation of evidence. This Court can only see whether on the material on the. record, there is any round for impleading a person as an accused u/s. 319, Cr. P. C. Whether that evidence is believable or not, is the function of the trial court and not of this Court. ;