Punjab-Haryana High Court
Chhotu @ Rohit Kumar vs State Of Punjab & Anr on 10 November, 2017
Author: Arvind Singh Sangwan
Bench: Arvind Singh Sangwan
CRR No.981 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.981 of 2013
Decided on: 10.11.2017
Chhotu @ Rohit Kumar and others
....Petitioners
Versus
State of Punjab and another
....Respondents
CORAM: HON'BLE MR JUSTICE ARVIND SINGH SANGWAN
Present : Mr. S.S. Rana, Advocate
for the petitioners.
Mr. Amandeep S. Gill, Sr. DAG, Punjab.
Mr. Arun Singh, Advocate
for respondent No.2.
ARVIND SINGH SANGWAN, J.
The present revision petition has been filed challenging the order dated 04.02.2013 vide which the trial Court allowed the application filed by the prosecution under Section 319 of the Code of Criminal Procedure (in short 'Cr.P.C.') and directed the petitioners to face trial as additional accused.
Notice of motion was issued in this case, however, there is no stay of proceedings. The matter is pending since 2013 and as per the version of the petitioners, they are facing trial.
Brief facts of the case are that FIR No.40 dated 12.11.2010 1 of 10 ::: Downloaded on - 14-11-2017 01:46:17 ::: CRR No.981 of 2013 2 under Sections 326, 324, 323, 506 of the Indian Penal Code (in short 'IPC') was registered at Police Station Garhdiwal, District Hoshiarpur at the instance of injured - Vikas Dadwal with the allegations that on 05.11.2010 at about 08:30 AM he was present in his house when accused Baljit Kumar armed with kirpan and other co-accused namely Manjit Kumar armed with datar, Palli armed with Kirpan, Mahinder Singh armed with danda entered his house and caused multiple injuries as explained in the FIR. The injured was saved by his father and uncle and was taken to Civil Hospital, Gardhiwal from where he was referred to Civil Hospital, Bhunga, District Hoshiarpur for further treatment. On the basis of the ocular and medical evidence i.e. MLR of injured - Vikas Dadwal, the aforesaid FIR was registered. During investigation on 17.11.2010, statement of accused - Baljit Kumar was recorded and a cross-version was also registered under Sections 326, 324, 323, 506 IPC in which the allegations of causing injuries by the complainant party in the present FIR was levelled.
During the investigation, Deputy Superintendent of Police, Dasuya kept the petitioners in Column No.2 and submitted the challan under Section 173 Cr.P.C. The reason given for declaring the petitioners as innocent was that they were trying to stop the fight between the parties.
The trial Court after framing charges recorded evidence of the prosecution witnesses and PW1 - Baljit Kumar while deposing on oath has stated as under:-
"I am serving in Army. On 27.10.2010, I came on leave for 14 days. On 05.11.2010, at about 8.00 P.M. I was 2 of 10 ::: Downloaded on - 14-11-2017 01:46:19 ::: CRR No.981 of 2013 3 going for fanda of pelia to village Khagwari. On the way, Sarpanch Malkiat Singh met me. After talking with him, I was going and when I reached near the house of Vikas Dadwal, then Chhotu s/o Ramesh stopped me on the way and raised a lalkara that today kill him. Before talking anything, Chhotu gave me a daat blow which hit on my backside of the head. Vikas s/o Shri Chand gave me a daat blow which hit on my forehead with intention to kill me. Then, Romy s/o Shri Chand gave me a daang blow which hit on my right shoulder. Then, Anil gave me a daat blow which hit on my left shoulder. Then, Sunny s/o Ramesh Singh ave daat blow upon me and to save myself, I raised my left hand and the blow hit on my left palm. Then, Ashok Kumar gave me a daang blow on my right leg. Other unknown persons also caused injuries to me with daangs. All the accused gave criminal intimidation of life and limb........"
Thereafter, the prosecution moved an application under Section 319 Cr.P.C. for summoning the petitioners as an additional accused. The trial Court, thereafter, vide its order dated 04.02.2013 has allowed the said application by passing the following order:-
"Heard on the application under Section 319 Cr.P.C. for summoning the additional accused namely Chhotu, Romy, Anil Kumar, Sony and Ashok Kumar. Baljit Kumar while appearing as PW1 stated on oath that on 5.11.2010 at about 8.00 PM he was going for fanda of pelia to village Khagwari. On the way Sarpanch Malkiat Singh met him. After talking with him he was going and when he reached near the house of Vikas Dadwal, then Chhotu s/o Ramesh stopped him on the way and raised a lalkara that today kill him. Before, talking anything Chhotu gave him a daat blow which hit on his backside of the head. Vikas s/o Chand gave him a daat blow which hit on his forehead with intentions to kill him. Then Romy s/o Chand gave him a daang 3 of 10 ::: Downloaded on - 14-11-2017 01:46:19 ::: CRR No.981 of 2013 4 blow which hit on his right shoulder. Then Anil gave him a daat blow which hit on his left shoulder. Then Sunny s/o Ramesh Singh gave a daat blow upon him and to save himself, he raised his left hand and the blow hit on his left palm. Then Ashok Kumar gave him a daang blow on his right leg. Other unknown persons also caused injuries to him with daangs. All the accused gave criminal intimidation of life and limb. Then he raised a raula, then Malkiat Singh, Sarpanch, Mulakh Raj and his wife, Kartar Singh, Mehanga Singh, member Panchayat came to the spot and saved him from the clutches of the accused. Then, accused fled away from the spot along with his pleasure and damaged the pleasure and burnt the documents. Then his father and brother came to the spot and admitted him to civil hospital, Tanda from where he was referred to CHC Bhunga. Then he was referred to M.H. Jalandhar on 6.11.2010, where he was medico legally examined. The motive behind the occurrence was that all the accused in drunken condition were sitting on the tractor in front of his house and gave abuses to him, on which he tried to understand them, due to which, all the accused caused injuries to him. Regarding this, his statement Ex.PA was recorded by the police, after admitting its contents to be correct he put his signatures on the same and he identified his signatures on Ex.PA. Thus, it is clear that specific attributions have been made against each of these persons. It is not the case of uncertain and vague allegations but specific attribution have been made against each of these accused. Even persual of the statement dated 17.11.2010 Ex.PA also reveals that all these accused namely Chhotu, Romy, Sony, Ashok and Anil Kumar have been specifically named and specific allegations have been made against them. Therefore, it cannot be said that the said improvement have been made and accordingly, I am of the considered view that it is a fit case for summoning other persons as co-accused. Hence, all the persons who are put in column No.2 in the report under Section 173 Cr.P.C. namely Chhotu, Romy, Sony, Ashok and Anil Kumar are 4 of 10 ::: Downloaded on - 14-11-2017 01:46:19 ::: CRR No.981 of 2013 5 hereby summoned for 18.02.2013."
At this stage, it may be noticed that counsel for the State as well as counsel appearing for respondent No.2/complainant have raised an objection that since the order is passed by the Magistrate, the impugned order dated 04.02.2013 is a revisable order before the Court of Sessions.
However, considering the fact that the present petition is pending since 2013, I do not think it appropriate to relegate the petitioners to avail their remedy before the Court of Sessions and therefore, arguments in the main case was heard.
It is submitted on behalf of the petitioners that it is a case of version and cross-version. After recording the FIR, the Deputy Superintendent of Police, Dasuya has conducted an enquiry and found that the present petitioners, though, were present at the spot but were trying to stop the fight between the parties and, therefore, the petitioners are innocent persons and have been wrongly summoned under Section 319 Cr.P.C. Counsel for the petitioners has relied upon the judgment "Hardeep Singh vs State of Punjab and others" and other connected cases, 2014(1) RCR (Criminal) 623 wherein the Hon'ble Supreme Court in para 110 has held as under:-
"110. We accordingly sum up our conclusions as follows :
Question Nos. 1 & III 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 5 of 10 ::: Downloaded on - 14-11-2017 01:46:19 ::: CRR No.981 of 2013 6 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.
Question No. II 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 6 of 10 ::: Downloaded on - 14-11-2017 01:46:19 ::: CRR No.981 of 2013 7 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.
Question No. IV 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 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 7 of 10 ::: Downloaded on - 14-11-2017 01:46:19 ::: CRR No.981 of 2013 8 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."
It is, thus, submitted on behalf of the petitioners that once the Deputy Superintendent of Police, Dasuya in his enquiry report has held that the petitioners were not involved in the present case and the trial Court has wrongly summoned the petitioners as additional accused.
On the other hand, counsel for the State assisted by counsel for the complainant has stated that the petitioners were named in the FIR and have been kept in Column No.2 during the enquiry which has been conducted by the Deputy Superintendent of Police, Dasuya and the same cannot be taken as a conclusive proof as the complainant while appearing as PW1 has given the details of the injuries caused by the accused persons including the petitioners.
Counsel for the respondents have further relied upon the MLR of the injured/complainant - Baljit Kumar in which 05 injuries are reported on him out of which injuries No.1, 2, 4 and 5 were incised wound and injury No.3 is an abrasion. It is further submitted that the injuries sustained by Baljit Kumar have been duly explained the manner of causing injuries by the petitioners and has attributed the aforesaid injuries as noticed in the MLR and, therefore, the injured/complainant has clearly deposed about the injuries which are corroborated by the 8 of 10 ::: Downloaded on - 14-11-2017 01:46:19 ::: CRR No.981 of 2013 9 medical evidence i.e. the MLR. Counsel for the respondents have further relied upon the opinion of the Medical Officer who has stated that the injuries were grievous in nature and instant, injury No.1 was declared as grievous injury. It is further submitted that the complainant remain admitted in the hospital for a considerable long time and his statement was recorded after 04 days of incident when he was declared fit by the doctor and as per the opinion of the treating doctor, injury No.1 being loss of tissue required grafting and re-constructive surgery. It is also submitted on behalf of the respondents that the Deputy Superintendent of Police, Dasuya in his enquiry report dated 19.02.2011 without assigning any reason has held that the petitioners have not caused any injuries which is contrary to the version given in the FIR.
After hearing counsel for the parties, I find no merit in the present petition. So far as the judgment of the Hon'ble Supreme Court in Hardeep Singh's case (supra) is concerned, there is no dispute about the direction given by the Hon'ble Supreme Court, however, a careful perusal of the FIR, the enquiry report, the statement of the complainant
- Baljit Kumar who was duly cross-examined by the accused persons and the MLR which corresponds the injuries attributed to the petitioners, as deposed by the complainant, I find that the trial Court has rightly summoned the petitioners under Section 319 Cr.P.C. as the ocular version given by petitioner is corroborated by medical version in the impugned MLR.
No ground for interference is made out.
In view of what has been discussed hereinabove, finding 9 of 10 ::: Downloaded on - 14-11-2017 01:46:19 ::: CRR No.981 of 2013 10 no merit, the petition fails and is accordingly dismissed.
(ARVIND SINGH SANGWAN)
10.11.2017 JUDGE
yakub
Whether speaking/reasoned Yes/No
Whether reportable: Yes/No
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