Punjab-Haryana High Court
Harjinder Singh vs State Of Haryana & Ors on 29 January, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRR No.2535 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.2535 of 2009
Date of Decision: 29.1.2013
Harjinder Singh ...Petitioner
Versus
State of Haryana & Ors. ...Respondents
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present: Mr.N.S.Shekhawat, Advocate for the petitioner.
Mr.Gaurav Verma, AAG Haryana for respondent No.1.
Ms.Seema Arora, Advocate for respondent Nos.2 to 4.
Mr.K.S.Nalwa, Advocate for respondent Nos.5 to 8.
Mehinder Singh Sullar, J. (Oral)
The contour of the facts & material, which needs a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record, is that, initially, in the wake of complaint of petitioner-complainant Harjinder Singh son of Kulwant Singh (for brevity "the complainant"), a criminal case was registered against accused Gurcharan Singh, Malkiat Singh sons of Maghi Singh, Harnek Singh, Vakil Singh, Jadge Singh, Bansa Singh sons of Jalaur Singh, Jaspal Singh, Satpal Singh sons of Thana Singh son of Angrej Singh, Manjit Singh son of Nachhattar Singh, Mangal Singh son of Jalaur Singh, vide FIR No.331 dated 21.10.2008 (Annexure P2) on accusation of having committed the offences punishable under sections 148, 302, 395 and 120-B read with section 149 CRR No.2535 of 2009 2 IPC and Section 25 of the Arms Act by the police of Police Station Rania, District Sirsa.
2. During the course of investigation of the case, respondents Nos.2 to 8 Manjit Singh and others were found innocent by the investigating agency. However, after completion of the investigation, the police submitted the final police report (challan) against the remaining accused. They were accordingly charge sheeted for the commission of pointed offences and the case was slated for evidence of the prosecution.
3. During the pendency of the case, the prosecution moved an application u/s 319 Cr.PC to summon respondent Nos.2 to 8 Manjit Singh son of Nachhattar Singh and others as additional accused to face the trial along with their other co-accused for the indicated offences.
4. The trial Court dismissed the application u/s 319 Cr.PC, by virtue of impugned order dated 27.8.2009 (Annexure P1).
5. Aggrieved thereby, the petitioner-complainant preferred the present revision petition to challenge the impugned order, invoking the provisions of section 401 Cr.PC.
6. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant revision petition in this respect.
7. Ex facie the argument of learned counsel that since there was sufficient evidence on record against the additional accused, so, the trial Court committed a legal mistake in dismissing the application of prosecution u/s 319 Cr.PC, lacks merit.
CRR No.2535 of 2009 3
8. As is clear that the trial Judge has examined the matter in right perspective, negated the plea and dismissed the application u/s 319 Cr.PC of the prosecution, by means of impugned order (Annexure P1), which, in substance, is as under (Para 7) :-
"There is a force in the contention of learned defence counsel. No doubt, in the FIR and in statement, the complainant when he appeared as PW1 in the witness box, he has stated that those persons whose names figure in the application filed by the prosecution, have also participated in the commission of offence and resultantly the matter was investigated by the police and the police came to the conclusion that the aforesaid persons against whom application under section 319 of Cr.PC has been moved, were not present at the place of occurrence. No doubt Court can summon the persons as an additional accused under Section 319 of Cr.PC if the summoning of those persons, warrants conviction of the same but in the present case the authorities on which reliance is being placed by learned counsel for the accused clearly shows that the power under Section 319 of Cr.PC can only be used if there is evidence which may lead to the conviction of the additional persons. In the present case there is nothing on the file to show that ultimately the persons to whom the prosecution wants to summon to face trial along with co-accused, will be convicted after the trial of this case. Taking into consideration, the ratio of the authorities on which reliance is being placed by learned counsel for the accused, I am of the considered view that there is no sufficient grounds to summon the aforesaid persons under Section 319 of Cr.PC, hence the present application is hereby dismissed being devoid of any merit."
9. In this manner, the trial Court, after taking into consideration the evidence on record, has recorded the cogent grounds and correctly did not summon the respondents Nos.2 to 8 as additional accused to face the trial along with their other co-accused. The learned counsel for petitioner did not point out any reason, muchless cogent, to interfere in the CRR No.2535 of 2009 4 impugned order (Annexure P1) in this regard.
10. There is yet another aspect of the matter, which can be viewed entirely from a different angle. It is not a matter of dispute that the trial Judge has already concluded the trial, convicted & sentenced the main accused, vide judgment dated 15.12.2011. That means, the main case already stands concluded. The contention of learned counsel for respondents that since the main trial has already concluded and cause of action under section 319 Cr.PC does not survive, so, the matter becomes infructuous, has considerable force. On the contrary, the argument of learned counsel for petitioner-complainant that the conclusion of main trial, has got no bearing on the decision of the present petition, is neither tenable nor the observations of Hon'ble Apex Court in case Rajendra Singh v. State of U.P. & Anr. 2007(3) RCR (Criminal) 1022 are at all applicable to the facts of the instant case, wherein, the additional accused stood already summoned u/s 319 Cr.PC much before the conclusion of the trial. On the peculiar facts & in the special circumstances of that case, it was observed that the fact that trial of co-accused had concluded and co-accused was acquitted, cannot have the effect of nullifying the order of summoning of the additional accused u/s 319 Cr.PC.
11. Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of petitioner-complainant in the present controversy.
12. As is evident from the impugned order (Annexure P1), the application filed by the prosecution u/s 319 Cr.PC was dismissed by the trial Court, vide impugned order. That means, no order to summon the CRR No.2535 of 2009 5 respondents as additional accused was ever passed by the Court before conclusion of the trial of main case. Once, no such order for summoning the respondents as additional accused was passed before the conclusion of the trial of main case, in that eventuality, the aforesaid observations of Hon'ble Supreme Court are not at all attracted to the facts of the instant case, particularly when section 319 Cr.PC postulates that "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." The words "in the course of trial" are most important and carry a significant meaning in this relevant connection. In this manner, the course (pendency) of the trial is a condition precedent for summoning the additional accused u/s 319 Cr.PC and not otherwise. No person can legally be summoned as an additional accused to face the trial along with other co-accused under this section after the conclusion of the trial of main case. This matter is no more res integra and is now well settled.
13. An identical question came to be decided by this Court in CRR No.1194 of 2011 titled as "Tarsem Singh vs. State of Punjab & Ors"
decided on 10.12.2012, wherein it was ruled that no person can legally be summoned as an additional accused to face the trial along with other co-
accused u/s 319 Cr.PC after the conclusion of the trial of main case.
14. Therefore, the contrary contentions of learned counsel for petitioner-complainant "stricto sensu" deserve to be and are hereby CRR No.2535 of 2009 6 repelled under the present set of circumstances as the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of this case and is the complete answer to the problem in hand.
15. Meaning thereby, the trial Court has recorded the cogent grounds in this relevant connection. Such order, containing valid reasons, cannot possibly be interfered with by this Court, in the exercise of limited revisional jurisdiction under Section 401 Cr.PC, unless and until, the same is illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-complainant, so, the impugned order (Annexure P1) deserves to be and is hereby maintained in the obtaining circumstances of the case.
16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
17. In the light of aforesaid reasons, as there is no merit, therefore, instant revision petition is hereby dismissed as such.
29.1.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter ? Yes/No