Punjab-Haryana High Court
Jai Singh vs State Of Haryana & Anr on 21 December, 2015
Author: Sabina
Bench: Sabina
CRR No.924 of 2015 1
212
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.924 of 2015
Date of decision: December 21,
21, 2015
Jai Singh
.......Petitioner
Versus
State of Haryana and another
.....Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Susheel Gautam, Advocate
for the petitioner.
Ms. Mahima, AAG Haryana.
Mr. B.S. Bairagi, Advocate
for respondent No.2.
*****
SABINA, J Petitioner has filed this petition challenging the order dated 19.02.2015, whereby, application moved by the prosecution to summon respondent No.2 to face the trial as an additional accused under Section 319 of Code of Criminal Procedure, 1973 ('Cr. P.C.' for short), was dismissed.
Learned counsel for the petitioner has submitted that from the statements of PW9 Sube Singh injured, eye witnesses PW3 Satyawan and PW5 Jai Singh, it was evident that respondent No.2 was present at the spot armed with sickle and had given a blow with it on the right eye of the injured Sube Singh.
Learned counsel for respondent No.2, on the other hand has submitted that respondent No.2 was found innocent MAHAVIR SINGH 2015.12.23 16:01 I attest to the accuracy and authenticity of this document Chandigarh CRR No.924 of 2015 2 during investigation. Respondent No.2 has been falsely involved in this case being mother of the co-accused.
Section 319 of Cr. P.C. reads as under:-
"Power Power to proceed against other persons appearing to be guilty of offence:-
offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then-
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard.
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
Thus, as per the above provision, the Court has ample power to summon any person as additional accused to face the trial with the accused already facing trial, if there is enough material on record to proceed against the said person.
In Hardeep Singh versus State of Punjab and others 2014(1) R.C.R. (Criminal) 623, it has been held by the Hon'ble Supreme Court:-
"Question Question Nos. 1 & III MAHAVIR SINGH 2015.12.23 16:01 I attest to the accuracy and authenticity of this document Chandigarh CRR No.924 of 2015 3 Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. ? Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under MAHAVIR SINGH 2015.12.23 16:01 I attest to the accuracy and authenticity of this document Chandigarh CRR No.924 of 2015 4 Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No. V Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?
A. A person not named in the FIR or a person though named in the FIR but has not been charge- sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of ? Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. The matters be placed before the appropriate Bench for final disposal in accordance with law explained hereinabove."
Prosecution story, in brief, is that on 05.05.2014, Sube Singh father of the complainant was present in his fields. Ram Rattan was also present in the fields on a Tractor driven by the complainant. In the meantime, Mahipal armed with a wooden stick and his mother Leela Devi armed with a sickle came to the spot. Both of them, caused injuries to Sube Singh. Satyawan and the complainant rushed to the spot and MAHAVIR SINGH 2015.12.23 16:01 I attest to the accuracy and authenticity of this document Chandigarh CRR No.924 of 2015 5 rescued Sube Singh. Both the accused then fled away from the spot.
Annexure P-6 is the statement of the injured. A perusal of the same reveals that the injured has specifically deposed that Mahipal had given a stick blow on his head, whereas, Leela Devi had given a blow on his eyes and face with the handle of sickle. Statement of the injured in this regard, is duly corroborated by the eye witnesses PW3 Satyawan and PW5 Jai Singh. Thus, there was sufficient material on record to summon respondent No.2 to face the trial as an additional accused. Trial Court fell in error while dismissing the application moved by the prosecution for summoning respondent No.2 to face the trial as an additional accused.
Accordingly, this petition is allowed. Impugned order 19.02.2016 is set aside. Consequently, application Annexure P-4 moved by the prosecution for summoning respondent No.2 to face the trial as an additional accused, is allowed.
(SABINA) JUDGE December 21, 2015 mahavir MAHAVIR SINGH 2015.12.23 16:01 I attest to the accuracy and authenticity of this document Chandigarh