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2019 Supreme(Raj) 539
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
P.K. LOHRA, J.
Central Bureau of Investigation, Special Crime-I, New Delhi - Petitioner
Versus
Sohan Lal Bishnoi S/o Late Kishna Ram and ors. – Respondents
S.B. Criminal Misc. Petition No.2240 of 2019
Decided On : 22-05-2019
For the Petitioner: Mr. Ejaz Khan & Panney Singh
For the Respondent:Mr. J.S. Choudhary, Senior Advocate assisted by Mr. Amandeep Lamba, Mr. Hemant Nahata, Mr. Sanjay Bishnoi, Mr. N.K. Bohra, Mr. Nishant Bora
Headnote:
Code of Criminal Procedure, 1973 – Section 482 – Penal Code, 1860 – Sections 364,302 ,201, 120-B and 3(2)(v) – Quashing of Proceedings – Criminal Conspiracy – Murder – Exercise of Power – Impugned order – Challenged – Held, Exercise of discretionary power vested in Court is not open to interference by higher Court so long as it is exercised reasonably, in good faith and on correct/plausible grounds – Learned trial Court declined plea of petitioner-CBI –Order spelling out cogent reasons for declining prayer of prosecuting agency – Section482 Cr.P.C. are forthcoming for exercising discretion in favour of prosecuting agency – Any Court clothed with discretionary power must be given some latitude and superior Courts while making judicial review of such discretionary order is not expected to upset same simply because other view is possible so long as discretion exercised by inferior Court is neither perverse nor dehors law – Upon examination of impugned order of learned trial Court has exercised its discretionary power judiciously, in good faith and upon consideration of factual gamut of case – That apart, by passing impugned order, neither learned trial Court has abused process of Court, nor it is a case wherein inherent power is to be exercised to give effect to any order passed under Code, or to secure ends of justice – Resultantly petition fails and rejected. (Para 40 and 41)
Facts of the case:
Instant petition under Section 482 of Code of Criminal Procedure, 1973 challenged order passed by Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Cases). By order impugned, learned trial Court thwarted application of CBI for recording statements of Ms. Amber B. Carr, a prosecution witness, through video teleconference .
Findings of the case:
Exercise of discretionary power vested in Court is not open to interference by higher Court so long as it is exercised reasonably, in good faith and on correct/plausible grounds – Learned trial Court declined plea of petitioner-CBI –Order spelling out cogent reasons for declining prayer of prosecuting agency – Section482 Cr.P.C. are forthcoming for exercising discretion in favour of prosecuting agency – Any Court clothed with discretionary power must be given some latitude and superior Courts while making judicial review of such discretionary order is not expected to upset same simply because other view is possible so long as discretion exercised by inferior Court is neither perverse nor dehors law – Upon examination of impugned order of learned trial Court has exercised its discretionary power judiciously, in good faith and upon consideration of factual gamut of case – That apart, by passing impugned order, neither learned trial Court has abused process of Court, nor it is a case wherein inherent power is to be exercised to give effect to any order passed under Code, or to secure ends of justice
Result: Resultantly petition fails and rejected.
ORDER :
The prosecuting agency, Central Bureau of Investigation (CBI), by the instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), has laid challenge to order dated 25th of January, 2019, passed by Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Cases), Jodhpur (for short, ‘learned trial Court’). By the order impugned, learned trial Court thwarted application of CBI for recording statements of Ms. Amber B. Carr, a prosecution witness, through video teleconference in Sessions Case No.97/2011.
2. Succinctly stated, the facts of the case are that, at the threshold, an FIR No.383/11 was registered with Police Station, Bilara, Jodhpur Rural, against one Sohanlal Bishnoi for offence punishable under Section 365/120-B IPC. Subsequently, on a request being made by the State Government, investigation of the case was entrusted to CBI, wherein Sohanlal Bishnoi was castigated for abduction of one Ms. Bhanwari Devi w/o Amarchand Nut. Initially, charge-sheet in the matter was filed on 2nd of December, 2011, however, during investigation on the basis of material collected by CBI many facts/events unfurled and that necessitated filing of supplementary charge-sheets on 29th of February 2012, 21st of April 2012 and 30th of August 2017 respectively, against Sohanlal Bishnoi and other accused-respondents for offences punishable under Sections 120-B, 364/120-B, 302/120-B, 201/120-B IPC and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘Act’).
3. While investigating the case, despite sincere endeavour made by CBI, Ms. Bhanwari Devi could not be traced out but finally it succeeded in recovering burnt bones from Rajeev Gandhi Lift Canal upon disclosure of one of the accused persons. The investigating agency suspecting burnt bones of a human being, initially contacted experts of Central Forensic Science Laboratory (CFSL) and All India Institute of Medical Sciences (AIIMS), New Delhi for seeking their opinion about DNA extraction from the burnt bones. However, the efforts of CBI proved abortive and both CFSL as well as AIIMS opined that it is not possible to render any opinion about DNA extraction from burnt bones. Both, CFSL & AIIMS, also conveyed CBI that such facility is available with FBI, America.
4. Thus, in such a situation, the CBI sent the burnt bones to Forensic Laboratory of Federal Bureau of Investigation (FBI) in United State of America (USA) through Embassy of USA, New Delhi. This exercise was made by the CBI for DNA extraction and matching the same with the blood/buccal samples of the children of deceased Bhanwari Devi. Upon receipt of report from FBI, bearing case I.D. No.163A-NL-235 dated 25th of May 2012, under the signatures of Ms. Amber B. Carr, FBI Expert through the embassy of United State of America, the same was placed on record before the learned trial Court on 5th of July 2012 as additional document after furnishing copy of the same to accused-respondents.
5. The learned trial Court, thereafter, by resorting to Section 227 & 228 Cr.P.C., framed charges against accused-respondents vide its order dated 4th of October, 2012. The learned trial Court framed charges under Section 120-B, 364/120-B IPC against accused-respondent Amarchand, for offence under Section 202 IPC against accused-respondent Parasram Bishnoi and under Section 201 IPC against accused-respondent Om Prakash while discharging both of them for offence punishable under Sections 120-B, 364, 302 IPC and Section 3(2)(v) of the Act. The rest of the accused-respondents were charged for offences punishable under Sections 120-B, 364/120-B, 302/120-B, 201 IPC and Section 3(2)(v) of the Act.
6. After framing of the charges, prosecution evidence commenced and when prosecution evidence was going on, at the behest of CBI, an application under Section 311 Cr.P.C. was filed on 4th of February 2017 with a prayer to issue summons to prosecution witness
