Smt. Gaumti Devi vs State of Rajasthan and Another

N.N. Mathur, J.—By way of instant revision petitioner u/s 482, Cr.P.C. petitioner has challenged the order of the Additional Sessions Judge No. 2, Sri Ganganagar, dated 29-6-2001 refusing to interfere with the order of the Chief Judicial Magistrate, Sri Ganganagar, dated 31st July, 2000 summoning the petitioner to face trial along with other accused persons for offence u/s 324/34, I.P.C.

Briefly stated the facts of the case are that on 7-1-1999 one Mahaveer lodged a First Information Report at Police Station Sri Ganganagar stating inter alia that in the morning while he was standing outside the house of Shri Khetpal, his neighbour Kashi Ram and his three sons and nephew arrived armed with weapons. Kashi Ram was armed with a hockey stick and Rakesh with a gun, his nephew was having lathi in his hand, so also Ranjeet and Anil. Rakesh fired the gun hitting him. He sustained pallet injuries on his chest. Khetpal also sustained injuries on hand. It is further alleged that Kashi Ram''s wife was exhorting her son Rakesh to fire at injured. It is further alleged that the Rakesh tried to fire another shot but he was not successful. On this information Police registered a case under Sections 307, 323, 147, 148 and 149, I.P.C. After investigation Police filed a charge-sheet against Rakesh and Kashi Ram for offences under Sections 307/34, 323/34 and 3/24 of the Arms Act. The investigation as against other persons was kept pending. The case was committed in the Court of Sessions Judge. The learned Judge of the view that the case is not triable by the Court of Sessions and as such remitted the matter u/s 228, Cr.P.C. to the Court of the Chief Judicial Magistrate to frame the charges against the Kashi Ram and Rakesh for offence u/s 324/24, I.P.C. and Section 3/25 of the Arms Act and try them in accordance with law.

During the trial after the statements of six witnesses were recorded, an application was filed on behalf of the complainant u/s 319, Cr.P.C. to add Vijay, Ranjeet and Smt. Gaumti-petitioner (herein) as a accused and tried them for offence u/s 324/34, I.P.C. The learned Magistrate in view of the statement of PW-3 Khetpal granted the application u/s 319, Cr.P.C. as against only the petitioner Smt. Gaumti (herein). The matter was carried in revision unsuccessfully.

I have heard, learned counsel for the petitioner and perused the record.

The only evidence against the petitioner is that after the first shot she exhorted her son to refire and furnish the injured. It is not the case of the prosecution that on being exhorted any of the co-accused fired the gun. The commission of offence was over before the exhortation alleged to have been made by the petitioner herein. Thus, there is no case against the petitioner to put her to trial for offence u/s 324/34. I.P.C. The powers u/s 319, Cr.P.C. are special and extra-ordinary and they are expected to exercise in special circumstances. I am of the view that the learned Magistrate has not exercised his powers judiciously in summoning the petitioner for trial for offence u/s 324/34, I.P.C. on application u/s 319, Cr.P.C. The learned revisional Court has also committed error in not interfering with the order which is not only illegal, but amounts to abuse of process of the Court.

Consequently, the petition is allowed. The order of the Additional Sessions Judge No. 2, Sri Ganganagar, dated 29-6-2001 is set aside so as the order dated 31st July, 2000 passed by the Chief Judicial Magistrate, Sri Ganganagar summoning the accused petitioner to face trial along with her husband Kashi Ram for offence under Sections 324/34, 323/34, I.P.C. is also quashed and set aside.