IMPORTANT POINT
The power under Section 319 Cr.P.C is discretionary and should be exercised sparingly, only when strong and cogent evidence occurs against a person from the evidence led before the court.

ORDER :

1. Instant revision petition under Section 397/401 Cr.P.C has been filed against the order dated 15.06.2023 passed by learned Addl. Sessions Judge No.1, Hanumangarh in Sessions Case No. 15/2022 by which the application filed by the petitioner under Section 319 Cr.P.C for taking cognizance against the respondents No.2 & 3 has been dismissed.

2. Brief facts of the case are that an FIR was registered by the petitioner complainant against the accused persons including the respondents No. 2 & 3 for offence under Section 302, 498A, 34 IPC. The police investigated the matter thoroughly and thereafter, filed a challan against the accused Subhash chandra only. The charges of the case were framed against Subhash Chandra. Thereafter, an application under Section 319 Cr.P.C. was filed by the petitioner for taking cognizance against respondents No. 2 & 3 also on the ground that PW/1 Arjun @ Abhay in his evidence has stated about complicity of respondents No.2 & 3 also. The trial court after hearing the arguments over application under Section 319 Cr.P.C. rejected the application filed by the petitioner vide order dated 15.06.2023.

3. Counsel for the petitioner submits that from the perusal of FIR, the name of respondents No. 2 & 3 were mentioned by the complainant in the FIR and all the accused persons harassed the deceased and killed her. It is submitted that PW/1 Arjun @ Abhay in his Court statement has categorically stated that his grand father Shera Ram and grand mother Guddi were involved in commission of murder of his mother. But the trial court without assigning any cogent reason, rejected the application filed by the petitioner, therefore, the impugned order dated 15.06.2023 deserves to be quashed and set aside.

4. Per contra, learned Public Prosecutor argued that according to statement of son of deceased, he was sleeping alongwith his mother and father and his father Subhash Chandra inflicted injuries to deceased mother and when he shouted, his grand parents broke open the door and entered into the room. However, later on in the court statement, he mentioned role of respondents No.2 & 3 also. Therefore, no specific role was assigned to the respondents no. 2 & 3 and it is only during court statement, the said witness has assigned role of respondents No.2 & 3, which seems to be an afterthought. It is argued that the application filed by the petitioner has rightly been rejected by the trial court by way of passing a detailed order, therefore, no interference is called for in the impugned order.

5. I have considered the rival contention of the parties and have carefully gone through the material available on record.

6. From the material on record, it is evident that in the FIR as well as in the statement under Section 161 Cr.P.C, no specific role has been assigned to the respondents No.2 & 3 and only in Court statement, the witness PW/1 Arjun @ Abhay stated that his grand mother was having an axe and grand father had kept hand on the mouth of his mother. The statement of said witness appears to be an afterthought and seems to be a tutored one. In this case, investigating officer investigated the matter and after examining each and every aspect of the matter came to the conclusion that the respondents No.2 & 3 who are in their old age, had no role to play in causing death of deceased.”

7. The power under Section 319 Cr.P.C. is discretionary power of the trial court, therefore, the discretion exercised by the trial court cannot be lightly interfered with unless it is shown that the order refusing to implead the persons as accused has been made mechanically or it is arbitrary or perverse. The trial court, while refusing to take cognizance against the respondents, has taken into account every aspect of the matter and the entire material placed before it and more particularly the chance of conviction of the respondents who have been sought to be impleaded as accused.

8. The constitutional Bench of Hon’ble Supreme Court in the case of Harde