State Of Rajasthan, Through P.p v. Sube Singh Son Of

Judgment

2. State Of Rajasthan, Through Public Prosecutor Sube Singh S/o Shri Udaram, R/o Padma Ki Dhani, Tan Kalyanpura, P.s. Sarund, District Jaipur ----Respondents Connected With S.B. Criminal Revision Petition No. 540/2021 Ajay Singh S/o Shri Bhanwar Singh, R/o Dhamala, Tan Ramkumarpura, Police Station Khetri District Jhunjhunu Rajasthan Versus ----Petitioner

2. State Of Rajasthan, Through Public Prosecutor Sube Singh S/o Shri Udaram, R/o Padma Ki Dhani, Tan Kalyanpura, P.s. Sarund District Jaipur S.B. Criminal Revision Petition No. 268/2022 Samir Khan Son Of Nisar Khan, Resident Of 540 Flate, Roof Floor, Basant Kunj, P.s Basant Kunj, New Delhi ----Respondents ----Petitioner

2. State Of Rajasthan, Through P.p Versus

Sube Singh Son Of Shri Udaram, Resident Of Padma Ki Dhani, Tan Kalayanpura, Ps Sarund, District Jaipur ----Respondents For Petitioner(s) : Mr. Sneh Deep Khyaliya Ms. Priyanshi Katta Mr. Pranjul Chopra Mr. Nishant Anand Mr. Sudhir Jain with Mr. Parth Sharma, Mr. Saurabh Jain & Mr. Monu Kumar For Respondent(s) : Mr. Onkar Singh Rajpurohit, PP Mr. Raj Kumar Kasana & Mr. Naveen Kumar [2025:RJ-JP:22901] (2 of 9) [CRLR-1893/2022] HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 19/05/2025 Order

1. These three revision petitions were preferred by petitioners accused Naresh Agarwal, Ajay Singh and Sameer Khan aggrieved from order dated 20.03.2021 in sessions case no. 40/2020 passed by learned Additional Sessions Judge, Khetri, District Jhunjhunu whereby on an application under Section 193 of Cr.P.C. filed by the Additional Public Prosecutor an order of cognizance was passed against Ajay Singh under Sections 147, 148, 149, 302, 120-B of IPC and against Sameer Khan and Naresh Agarwal under Section 302 read with Section 120-B of IPC.

2. Learned counsel for petitioners while relying upon grounds of revision petition submitted that on basis of written report filed by complainant Sube Singh, FIR no. 251/2020 was registered at P.S. Khetri and police has investigated the matter, and after detailed investigation police has found involvement of several persons and filed a charge-sheet before the Court of Additional Chief Judicial Magistrate. He further submitted that the role and involvement of petitioners Naresh Agarwal, Ajay Singh and Sameer Khan was investigated in detail by police but no such involvement was found and ultimately, the police has filed a negative report. He also submitted that the dispute pertains to possession of mines which was owned and in control of petitioners, but deceased accompanied by a group of persons have made an attempt to stall the operation of mines which led to free fight between two groups. He further submitted that the incident started on a sudden [2025:RJ-JP:22901] (3 of 9) [CRLR-1893/2022] provocation by complainant party and there is no evidence against petitioner about pre-planned or pre-meditated assault.

3. He further submitted that after filing of charge-sheet learned Magistrate has taken cognizance on 07.10.2020 and thereafter he committed the charge-sheet to learned Additional Sessions Judge, who also passed an order to register a case but during pendency of this case an application under Section 193 of Cr.P.C. was filed by the Additional Public Prosecutor (Add. PP) in connivance with complainant and a second order of cognizance was passed by learned Additional Sessions Judge. He also submitted that cognizance order is passed once and not two times. He further submitted that all three accused were not recommended in charge-sheet to face trial rather investigation was kept pending under Section 173(8) of Cr.P.C. He also submitted that accused Naresh was charged as conspirator to the assault but the evidence collected suggested for a sudden provocation and there is no evidence to show that the petitioner Naresh Agarwal was a conspirator or abettor to crime.

4. Learned counsel appearing on behalf of Ajay Singh specifically submitted that an order of cognizance was passed only on apprehension and there is no evidence on record to justify role and involvement of Ajay Singh and Sameer Khan. He also submitted that Ajay Singh and Sameer Khan were considered as witnesses by the police and the statement of both the petitioners were recorded under Section 161 Cr.P.C. He also submitted that an order of cognizance can only be passed either when there is any evidence to show their presence on spot or their role and [2025:RJ-JP:22901] (4 of 9) [CRLR-1893/2022] involvement as conspirator or abettor is established. He also submitted that unless the material on record is justifiable for taking cognizance an order of cognizance cannot be passed against any of the petitioner. Learned counsel for petitioners further placed reliance upon judgment in case of Balbir Singh and Anr. Vs. State of Rajasthan and Anr. (2016) 6 SCC 680, and submitted that when a Magistrate has played an active role in taking/refusing cognizance before committing the case under Section 209 of Cr.P.C. then the sessions court has no duty and authority to take cognizance under Section 193 of Cr.P.C. He also submitted that an order of cognizance by learned Additional Sessions Judge is an abuse of process of law, therefore, same be set aside.

5. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. Learned counsel for complainant submitted that petitioner accused Ajay Singh was present at crime scene when crime was committed. He also submitted that in FIR registered by complainant, the financial interest of Naresh Agarwal and Sameer Khan were mentioned, which clearly indicate that the entire act was committed in furtherance of criminal conspiracy hatched with Naresh Agarwal and Sameer Khan. He also submitted that police has deliberately discounted the role of Naresh Agarwal, Sameer Singh and Ajay Singh so that they may not face trial for the charge under Section 302 read with Section 120-B of IPC. Learned counsel further submitted that the matter has been closed by police and an order [2025:RJ-JP:22901] (5 of 9) [CRLR-1893/2022] of cognizance cannot be faulted on the ground that investigation is pending under Section 173(8) of Cr.P.C.

6. Heard learned counsel for the parties and learned Public Prosecutor. Perused the entire record. Also considered the judgment as referred by learned counsel for petitioner.

7. Brief facts of the case are that on the basis of report lodged by respondent no.2 Sube Singh about death of Mukesh S/o Udaram by unknown assailants led by Ajay Singh in dispute relating to operation of mines, having partnership of Sameer Khan and Naresh Agarwal, FIR no. 251/2020 under Sections 143, 302 IPC and 3/25 of Arms Act was registered at P.S. Khetri, District Jhunjhunu. After investigation police has filed a charge-sheet against 16 persons but has kept investigation pending against 39 persons under Section 173(8) of Cr.P.C. After filing of charge-sheet learned Additional Chief Judicial Magistrate has initially passed an order of cognizance and committed the case to learned Additional Sessions Judge, Khetri.

8. The matter was registered as Sessions Cases No. 40/2020 by learned Additional Sessions Judge on 07.10.2020. An application under Section 193 of Cr.P.C. was filed on 23.10.2020 by learned Additional Public Prosecutor, which was allowed against all three petitioners on 20.03.2021.

9. Herein this case, after filing of charge-sheet learned Chief Judicial Magistrate has taken cognizance and committed the case to learned Additional Sessions Judge and on 07.10.2020 the matter was registered after receipt. The record indicate that no application under Section 190 of Cr.P.C. was filed before learned [2025:RJ-JP:22901] (6 of 9) [CRLR-1893/2022] Additional Chief Judicial Magistrate. It means no prayer prior to present application under Section 190 of Cr.P.C. was made for taking cognizance against whom either the investigation was kept pending or closure report is filed.

10. The power of sessions Court under Section 193 of Cr.P.C. was considered by a Constitution Bench of Hon’ble Supreme Court in case of Dharampal Vs. State of Haryana (2014) 3 SCC 306 and Hardeep Vs. State of Punjab (2014) 3 SCC 92, and held that the Court of sessions can summon any person for being tried under Section 193 of Cr.P.C. even without aid of Section 319 at the stage of committal. It means the power of cognizance by sessions court is not restricted in any manner. Thereafter, in case of Nahar Singh Vs. State of U.P. and Anr. (2022) 5 SCC 295 again considering the duty under Section 190 and 193 of Cr.P.C. it was held that on the basis of material before the Court, an order of cognizance can be passed. The law over the point is settled and learned Additional Sessions Judge has an authority to pass an order of cognizance under Section 193 of Cr.P.C. after committal.

11. In case of Balbir Singh Vs. State of Rajasthan (supra), while relying upon judgment in case of Dharampal Vs. State of Haryana (supra) Hon’ble Supreme Court has laid down two situations and looking to present case it is apparent on record that the Magistrate has not played an active role in taking or refusing cognizance before committal which means that no application under Section 190 Cr.P.C. was filed when a charge-sheet was filed before the Additional Chief Judicial Magistrate, Khetri, District Jhunjhunu. Similarly on 07.10.2020 only a case was registered [2025:RJ-JP:22901] (7 of 9) [CRLR-1893/2022] after committal by learned Additional Sessions Judge after committal and no order of cognizance was passed. An application under Section 193 of Cr.P.C. was filed on 23.10.2020 which was disposed of by impugned order, therefore, the judgment in case of Balbir Singh (supra), is not applicable to help the petitioners.

12. When we consider the facts of the case then it is apparent on record that in First Information Report filed by respondent complainant names of three petitioners Naresh Agarwal, Sameer Khan and Ajay Singh were mentioned. A specific interest and their role and involvement is also mentioned in First Information Report. The police has investigated the matter and recorded the statement under Section 161 Cr.P.C. but police has kept pending investigation under Section 173(8) of Cr.P.C. The Counsel for complainant has specifically mentioned that Ajay Singh was present at spot and same is evident from First Information Report and subsequent statement under Section 161 Cr.P.C.. No doubt about it that the complainant has alleged presence of Ajay Singh at the time of commission of crime and same is corroborated by witnesses in their statement under Section 161 Cr.P.C. Similarly, the interest of Sameer Khan and Naresh Agarwal in disputed mines is mentioned by complainant in his report and also in the statement under Section 161 of Cr.P.C. All these are subject matter of trial and the role on merits cannot be decided in a revision petition.

13. The counsel for petitioners has raised the issue that the investigation is kept pending under Section 173(8) of Cr.P.C. but during the arguments it has been submitted that the police has [2025:RJ-JP:22901] (8 of 9) [CRLR-1893/2022] closed the matter though there is no confirmation on record. It is quite strange that for incident on 15.06.2020, FIR was registered on very same day and a charge-sheet was drawn on 11.09.2020 and filed before the learned ACJM, Khetri. The fresh order of cognizance was passed on 20.03.2021 and till date the police has not filed a report about conclusion of investigation, kept pending, under Section 173(8) of Cr.P.C. It casts a doubt not only on working efficiency of police but it also shows that somewhere police is involved in protecting the assailants or abating the commission of crime. Even during pendency of these petitions before this Court, the police has not file any report to show the outcome of pending investigation. Thus, the order of cognizance cannot be set aside on this ground.

14. Having considered the entirety of facts and circumstances of the case, I am of the considered view that duty of the trial court is not only to uphold the law but also to ensure that the guilty should not go unpunished particularly when police is shielding the real culprits or the persons having financial interest, therefore, I am of the considered view that in overall facts and circumstances of the case, the trial court has not committed any error while allowing an application under Section 193 of Cr.P.C. which was filed by learned Additional Public Prosecutor on behalf of State.

15. Thus, these revision petitions sans merit and liable to be dismissed.

16. In view of discussion made hereinabove, the S.B. Criminal Revision Petition nos.1893/2022, 540/2021 & 268/2022 are [2025:RJ-JP:22901] (9 of 9) [CRLR-1893/2022] hereby dismissed and orders dated 20.03.2021 under Section 193 of Cr.P.C. is hereby affirmed.

17. Misc. application, if any, stands disposed of.

18. No order as to costs. CHETNA BEHRANI /126-128 (ASHOK KUMAR JAIN),J