Punjab-Haryana High Court
Sukhpal Singh Khaira vs State Of Punjab on 17 November, 2017
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
1. Criminal Revision No. 4070 of 2017 (O&M)
Date of decision : November 17, 2017
Sukhpal Singh Khaira ....... Petitioner
VERSUS
State of Punjab ..... Respondent
2. Criminal Revision No. 4113 of 2017 (O&M)
Joga Singh & another ....... Petitioners
VERSUS
State of Punjab ..... Respondent
CORAM : HON'BLE MR. JUSTICE A.B. CHAUDHARI
PRESENT: Mr. R.S. Rai, Sr. Advocate, with
Sarvshri Gautam Dutt and Abhinav Sood, Advocates,
for the petitioner in CRR-4070-2017.
Mr. G.S. Punia, Sr. Advocate, with
Mr. P.S. Punia, Advocate, for the petitioners in CRR-
4113-2017.
Mr. Dhruv Dayal, Senior Deputy Advocate General,
Punjab.
...
1. Whether Reporters of local newspapers may be allowed to
see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in the digest?
YES
4. Whether speaking/Reportable ? Yes.
Per A.B. Chaudhari, J.
GURSHARAN SINGH KANG
2017.11.17 12:09
I attest to the accuracy and By these two revision petitions, the three petitioners; namely
authenticity of this document
Criminal Revision No. 4070 of 2017 2
Sukhpal Singh Khaira, Joga Singh and Manish Kumar, have put to
challenge the order dated 31.10.2017 in CRM No.339 of 28.09.2017 in
Sessions Case No.289 of 16.09.2015, decided on 31.10.2017.
Facts :-
F.I.R. No.35 dated 05.03.2015 under Sections
21/24/25/27/28/29/30 of the Narcotic Drugs and Psychotropic Substances
Act, 1985, Section 25-A of the Arms Act and Section 66 of the
Information Technology Act, 2000, was lodged at Police Station Sadar,
Jalalabad against eleven accused persons. On 09.03.2015, a Special
Investigation Team was constituted, consisting of Deputy Inspector
General of Police, Ferozepur, Senior Superintendent of Police, Fazilka
and Superintendent of Police, Fazilka, which investigated the FIR and
filed a challan on 06.09.2015 against nine persons, since remaining two
persons were declared Proclaimed Offenders and finally one of them was
never apprehended. Thus, the trial was held against 10 persons.
Thereafter, on 18.11.2016, a supplementary charge-sheet came to be filed
against the two Proclaimed Offenders. Petitioner-Sukhpal Singh Khaira
had filed CWP-8999-2015 in this Court, praying for investigation by the
Central Bureau of Investigation in the said FIR. Upon issuance of notice,
the said petition was heard on some dates and on 14.07.2016, Additional
Advocate General for the State of Punjab made a statement that petitioner-
Sukhpal Singh Khaira was not named as an accused in the said FIR and,
as such, there was no cause of action for maintaining the petition. As a
sequel, petitioner-Sukhpal Singh Khaira withdrew the said petition on
16.03.2017. During this period, PW-4 Ajmer Singh (Superintendent of
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Criminal Revision No. 4070 of 2017 3
Police) and PW-5 Jaswant Singh (Inspector) were examined in the trial
against 10 accused persons. The evidence of PW-4 Ajmer Singh and PW-
5 Jaswant Singh was completed on 06.07.2017 and the prosecution closed
its evidence. On 06.07.2017 itself, a request for recall made by the
prosecution was declined by the trial Court. On 31.07.2017, an
application was filed by the prosecution under Section 311, Code of
Criminal Procedure, for recalling the witnesses and also to produce some
record for being proved. On 17.08.2017, the said application was
allowed. After the said application was allowed, PW-4 Ajmer Singh,
PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh (Constable) were
examined between 14.09.2017 to 21.09.2017. On 21.09.2017, the
prosecution again closed the evidence. On 21.09.2017 itself, the
prosecution filed an application under Section 319, Code of Criminal
Procedure, for summoning additional five accused, including the present
petitioners, for the reasons stated in the said application. The statements
of the 10 accused under Section 313, Code of Criminal Procedure, were
recorded on 04.10.2017. In the meanwhile, in a petition (CRM-M-18474-
2017, decided on 08.08.2017) for grant of bail by Kala Singh, one of the
accused in custody, this Court had directed the trial Court to complete the
trial within 3 months from 08.08.2017. The trial Court, looking to the
said direction and the fact that the FIR case was of 2015, made an order
on 28.09.2017, directing registration of the application under Section 319,
Code of Criminal Procedure, filed on 21.09.2017. Thereafter, on
10.10.2017/16.10.2017, defence witnesses were examined by the accused
persons. The trial Court, after hearing the arguments, made its judgment
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on 31.10.2017 in Sessions Case No.289 of 2015 and convicted all the ten
accused and sentenced them. While recording the judgment of conviction,
in paragraphs 5 (end of para) the trial Court observed that the application
under Section 319, Code of Criminal Procedure, would be dealt with
separately. Accordingly, on the same date i.e. 31.10.2017, on which date
the judgment was pronounced, simultaneously, the said application under
Section 319, Code of Criminal Procedure, was decided by the impugned
order summoning five additional accused persons, including the present
petitioners. Hence, these two revision petitions against the said order.
Arguments :-
Sarvshri Mr. R.S. Rai and G.S. Punia, Senior Advocates,
with Sarvshri Gautam Dutt, Abhinav Sood and P.S. Punia, Advocates, in
both these petitions, made the following submissions:-
i) The entire exercise made by the prosecution qua the present petitioners
is out and out mala fide and with a view to cause damage to the
reputation of petitioner-Sukhpal Singh Khaira, who is a sitting Member
of Legislative Assembly and Leader of Opposition in the Punjab
Assembly. Mr. Rai submitted that petitioner-Sukhpal Singh Khaira was
apprehending mala fide action against him and that is why he had filed
CWP-8999-2015 requesting for investigation by the Central Bureau of
Investigation, though ultimately the same was withdrawn by petitioner-
Sukhpal Singh Khaira.
ii) The petitioners were not at all in picture even at the time of registration
of FIR No.35 dated 05.03.2015 nor at the stage of filing of
challan/supplementary challan as was filed by the Special Investigation
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Team. Not only that, when finally PW-4 Ajmer Singh and PW-5
Jaswant Singh were examined on 05.09.2016 and their evidence was
completed and closed on 06.07.2017, those witnesses did not even
whisper about the petitioners in their substantive evidence before the
Court. Not only that, request under Section 311, Code of Criminal
Procedure, that was made was also declined by the trial Court.
Strangely enough, according to them, a written application was filed on
31.07.2017 by the prosecution for recalling the said two witnesses i.e.
PW-4 Ajmer Singh and PW-5 Jaswant Singh, allegedly on the ground
that they were required to prove some record and documents, etc. At
that stage, the petitioners were not before the Court at all and could not
be. The said application under Section 311, Code of Criminal
Procedure, was allowed on 17.08.2017 and, thereafter, recalled
witnesses PW-4 Ajmer Singh and PW-5 Jaswant Singh and an
additional witness PW-13 Ravinder Pal Singh were examined and
cross-examined and their evidence was closed on
14.09.2017/21.09.2017. The application under Section 319, Code of
Criminal Procedure, for summoning five accused persons additionally,
including the present petitioners, was made on 21.09.2017 before the
trial Court without any justification whatsoever and without any legally
admissible evidence. After examination of defence witnesses, the
Sessions Trial was closed for judgment and on 31.10.2017, the trial
Court recorded the judgment of conviction of the ten accused persons,
who were tried and on the same date additionally, by the impugned
order, allowed the application under Section 319, Code of Criminal
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Procedure, for summoning five accused persons, including the
petitioners. According to him, all these events clearly indicate the mala
fides on the part of the prosecution to rope the petitioners somehow in
the said Sessions Trial.
iii)Sarvshri R.S. Rai and G.S. Punia, the learned senior counsel, further
contended that the provisions of Section 319, Code of Criminal
Procedure, continue to apply till the conclusion of the main trial and not
at the time when the judgment is delivered against the original accused
persons. They submitted that the words in Section 319, Code of
Criminal Procedure, are "together with the accused persons", which
means that the trial Court has no jurisdiction to summon additional
accused persons, having pronounced the judgment dated 31.10.2017
and convicting the accused as the proposed additional accused could
not be tried together with the original accused persons. In other words,
according to them, the learned Judge became functus officio qua the
application under Section 319, Code of Criminal Procedure, no sooner
he recorded the judgment of conviction of the original accused persons
on 31.10.2017 and, therefore, the impugned order is illegal.
iv)They, then, submitted that the trial Court, while recording the reasons
in support of the impugned order has relied fully on the evidence of the
witnesses i.e. PW-4 Ajmer Singh, PW-5 Jaswant Singh and PW-13
Ravinder Pal Singh, which is wholly inadmissible in law and, as such,
is no evidence in the eye of law on the basis of which the impugned
order could have at all been made by the trial Court. The meaning of the
word 'evidence', as propagated by the Apex Court, only means legal and
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admissible evidence and not the evidence based on imagination. They
took me through the evidence of all these three witnesses and submitted
that whatever these witnesses have deposed in their evidence, there was
no authenticated record in respect of the call details, evidence in the
form of e-mails, etc., which is otherwise a requirement under Section
65-B of the Evidence Act regarding authenticity of evidence. In other
words, according to them, until and unless authenticated evidence, as
contemplated under Section 65-B of the Evidence Act, is brought on
record, the evidence tendered by them was wholly inadmissible and no
evidence in the eye of law, on the basis of which the trial Court could
not have acted under Section 319, Code of Criminal Procedure.
v) With reference to the argument advanced by the learned State counsel
as to Exhibit DX, the alleged affidavit of the petitioner and the
documents therewith, they submitted that the Annexures did not form
part of the affidavit nor of Exhibit DX, and therefore, the trial Court
could not have read Exhibit DX as a piece of legal evidence.
vi)They, then, submitted that the impugned order summoning the accused
under Section 319, Code of Criminal Procedure, is in clear violation of
the ratio decidendi laid down in the Constitution Bench judgment in the
case of Hardeep Singh vs. State of Punjab, 2014(1) RCR (Criminal)
623. Learned senior counsel also took me through all the relevant
judgments. They, then, argued that the trial Court has, strangely
enough, directed the police to file a supplementary charge-sheet and as
is a well settled law, the trial Court does not have any power to direct
the police authorities to file a charge-sheet and at the most, the power is
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only to order further investigation and nothing more. There is no power
even to order reinvestigation.
vii)In reply to the Apex Court judgment in the case of Shashikant Singh
vs. Tarkeshwar Singh, 2002(3) RCR (Criminal) 191, they argued that
the same is clearly distinguishable and does not have any application in
the present case. They, then, submitted that strangely enough, the trial
Court has issued non-bailable warrants for arrest of the additional
accused persons, including the petitioners, when as a matter of fact,
such a practice is condemned by the courts and that only summons
could be issued to the accused persons in pursuance to the order made
under Section 319, Code of Criminal Procedure.
viii)Finally, they prayed for allowing the present petitions in their entirety.
Per contra, learned State counsel vehemently opposed these
petitions. He submitted that decision in the case of Shashikant Singh
(supra) and the other decisions rendered by the Rajasthan High Court as
well as this Court and one more decision of the Apex Court in the case of
Rajendra Singh vs. State of U.P., (2007) 7 SCC 378 show that even after
the conclusion of the trial, the power under Section 319, Code of Criminal
Procedure, can be exercised and the additional accused can be summoned.
He further submitted that in the present case, the trial Court had separated
the application under Section 319, Code of Criminal Procedure, for the
reasons beyond his control and ordered separate registration of the
application as there was an order from this Court directing him to decide
the trial itself against the ten accused persons within a period of three
months i.e. on or before 07.11.2017. At any rate, he decided the
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application under Section 319, Code of Criminal Procedure,
simultaneously with the judgment of conviction dated 31.10.2017 and,
therefore, it could not be said that he had become functus officio. He,
then, submitted that in one case, after judgment of acquittal, High Court
confirmed the order summoning additional accused under Section 319,
Code of Criminal Procedure, after four months of the judgment of
acquittal.
The learned State counsel then submitted that the evidence
that has been produced by the prosecution on record on which reliance
was placed by the trial Court to summon the accused persons, including
the petitioners, cannot be said to be inadmissible, as contended by the
learned senior counsel for the petitioners. According to him, the evidence
that has been led is good and sufficient. Alternatively, according to him,
the evidence on which reliance has been placed by the trial Court,
assuming but not admitting of its alleged inadmissible nature, the fact of
the matter is that the petitioners have full opportunity during trial to object
accordingly. The right of the prosecution to prove its evidence post the
proceedings under Section 319, Code of Criminal Procedure, cannot be
taken away at such a premature stage. At any rate, according to him, the
term evidence has been interpreted by the Apex Court in a judgment and,
therefore, the submission made by the learned senior counsel for the
petitioners is misconceived.
The learned State counsel, then, submitted that the document
Exhibit DX, on which reliance has been placed, is in fact from a complete
writ petition that was filed by petitioner-Sukhpal Singh Khaira himself on
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affidavit and there are some documents annexed therewith. The said
document Exhibit DX has been marked and the State will be entitled to
file certified copy of the entire writ petition along with documents before
the trial Court as evidence. The petitioners will also have opportunity to
oppose the filing of such evidence before the trial Court . The petitioners
would have also an opportunity to contest the said evidence, according to
law. As to the authenticity of the evidence in terms of Section 65-B of the
Evidence Act, he submitted that the same is again a matter which can
always be proved according to law but then for the purpose of Section
319, Code of Criminal Procedure, the power thereunder cannot be made
nugatory. He pointed out the evidence of the witnesses, including the
suggestions given by accused person Gurdev Chand, about the petitioners
being in contact with the original accused persons who have been
convicted.
As to the order asking the police to file supplementary
charge-sheet, he submitted that there is nothing wrong in the present case
on the part of the trial Court to direct filing of supplementary charge-
sheet as such right was reserved by the police themselves while filing the
challan, which is clear from the perusal of the record. The trial Court
having found a prima facie case against the petitioners, the said direction
is in consonance with the liberty that was reserved by the police at the
time of filing challan. Lastly, he submitted that the trial Court issued non-
bailable warrants looking to the seriousness of the offences and as it is
seen that ten accused who have been convicted have been sentenced to
undergo rigorous imprisonment for 20 years. He, then, emphasized that
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offences relate to drug trafficking, etc. from the neighbouring country
Pakistan. Therefore, the Court has viewed it seriously. Finally, he prayed
for dismissal of the revision petitions.
Learned State counsel also filed written submissions on
behalf of the State which have been taken on record.
Consideration :
The following dates would relevant in the present matter:-
Date Event
05/03/15 F.I.R. No.35 under Sections 21/24/25/27/28/29/30 of the
Narcotic Drugs and Psychotropic Substances Act, 1985,
Section 25-A of the Arms Act and Section 66 of the
Information Technology Act, 2000, was lodged at Police
Station Sadar, Jalalabad against 11 accused persons.
09/03/15 Special Investigation Team constituted to investigate the
matter
06/09/15 Special Investigation Team filed challan against nine
persons. Other two persons were declared proclaimed
offenders. Later, out of them, one was apprehended and,
thus, trial was held against ten persons.
2015 CWP-8999-2015 filed by petitioner-Sukhpal Singh Khaira
for CBI investigation of FIR No.35
06/07/16 (i) PW-4 Ajmer Singh and PW-5 Jaswant Singh were
examined and the prosecution evidence was closed.
(ii) Request for recall of these witnesses was declined by
the Court.
14.07.2016 Additional Advocate General, Punjab, stated that
petitioner-Sukhpal Singh Khaira was not named as an
accused in the said FIR
18.11.2016 Supplementary charge-sheet filed by the Special
Investigation Team against the two proclaimed offenders
16.03.2017 Petitioner-Sukhpal Singh Khaira withdrew CWP-8999-
2015
31.07.2017 Application under Section 311, Code of Criminal
Procedure, for recall of the said witnesses was filed by the
prosecution, which was allowed.
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Date Event
08/08/17 CRM-M-18474-2017 for grant of regular bail by Kala
Singh, one of the ten accused, was decided with a
direction to the trial Court to complete the trial within
three months i.e. by 07.11.2017.
14.09.2017 PW-4 Ajmer Singh and PW-5 Jaswant Singh (recalled
to witnesses) and PW-13 Ravinder Pal Singh were examined
21.09.2017 and cross examined.
21.09.2017 The prosecution closed the evidence and the prosecution
also filed an application under Section 319, Code of
Criminal Procedure for summoning additional five
accused, including these three petitioners.
28.09.2017 The trial Court made order directing separate registration
of the application under Section 319, Code of Criminal
Procedure filed on 21.09.2017.
04/10/17 The statements of ten accused under Section 313, Code of
Criminal Procedure recorded.
10.10.2017/ Defence witnesses examined
16.10.2017
31.10.2017 (i) Sessions Case No.289 of 2015 decided and all ten
accused convicted and sentenced to period ranging from 6
years to 20 years.
(ii) In the judgment of conviction, in para-5 (end of para),
the trial court stated that the application dated 21.09.2017,
under Section 319, Code of Criminal Procedure, would be
dealt with separately. On the same date, i.e. 31.10.2017,
by the impugned order, the trial Court decided the
application under Section 319, Code of Criminal
Procedure, summoning five additional accused, including
these petitioners.
03.11.2017/ Hence these petitions.
07.11.2017
Apropos the submissions made by the learned senior counsel
for the petitioners in these two petitions as to the mala fides, I find that the
FIR was registered on 05.03.2015 when the present Government was not
ruling in the State of Punjab. The entire action which has been assailed
and the allegations relate to the period during earlier Government. That
apart, there are no specific allegations about mala fides against any
particular person nor any such person has been made a party to the
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petition in order that the plea regarding mala fides could be properly
examined. It is a well settled legal position that adequate pleadings and
proofs qua the party against whom mala fides are alleged is sine qua non
for consideration of the question of malice in fact. The same is
conspicuously absent and, therefore, I am not prepared to accept the
submission that the actions taken by the prosecution are actuated with
malice. Apart from that, petitioner-Sukhpal Singh Khaira himself had
filed CWP-8999-2015 asking for investigation by the Central Bureau of
Investigation but, then, he withdrew the said petition. Had he been really
serious about the malice in fact, he would not have withdrawn the said
petition. Merely because he was not the accused in FIR No.35, the said
petition was for investigation by the Central Bureau of Investigation and,
therefore, this fact that his name was not in the FIR was not germane
when he was sure about the mala fide action against him. It is not
possible for this Court to accept the submission in that behalf.
The submission made by the learned senior counsel for the
petitioners that none of the petitioners were in picture right from the
registration of the offence on 05.03.2015 till filing of challan,
supplementary challan and closure of evidence of the prosecution at the
first blush, would not be relevant qua the power of the Court under
Section 319, Code of Criminal Procedure. At any rate, the power is to be
exercised if the trial Court finds sufficient evidence to proceed against
additional accused persons. Therefore, it is no gainsaying that since the
closure of trial at the first instance, their names did not crop up, therefore,
the additional accused could not be summoned even if after recall of the
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witnesses there is evidence on record.
The next submission that was made was that it was only upon
recall of the witnesses; namely, PW-4 Ajmer Singh and PW-5 Jaswant
Singh, that they deliberately named the additional accused persons in their
evidence. At this stage, unless they are cross-examined to that effect, it
would not be possible to jump to such a conclusion.
The learned senior counsel for the petitioners, then,
contended that the power under Section 319, Code of Criminal Procedure,
can be exercised only till the conclusion of the main trial and not at the
time when the judgment is delivered against the original accused in that
trial. In the present case, the judgment of conviction was delivered on
31.10.2017 and simultaneously the order under Section 319, Code of
Criminal Procedure, was also passed. They submitted that Section 319,
Code of Criminal Procedure, contemplates summoning the accused
persons only if they could be tried together with accused persons (original
accused persons). Since the original accused persons were already
convicted, there was no question of additional accused being tried
together with the original accused persons and hence the trial Court erred
in law in making the impugned order. The trial Court becomes functus
officio once the stage to try the proposed additional accused together with
the original accused persons, gets finished. The learned senior counsel for
the petitioners relied on the decision rendered by a Single Bench of this
Court (A.B. Chaudhari, J.) in CRR-4068-2014 decided on 24.03.2017.
I have carefully perused the said decision. It would be
appropriate to find out the ratio decidendi laid down in that decision. For
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that purpose, the question of law that was framed therein is quoted
hereinbelow, which reads, thus :-
"Whether in terms of Section 319 of Code of Criminal
Procedure, 1973 (for short 'Cr. P.C.'), the complainant in
the subject FIR could be summoned as an accused based
on the deposition of the defence witnesses before the trial
Court during trial when the basic ingredients of Section
319 Cr. P.C. is that such a proposed accused is required to
be tried together with the accused already on trial?"
The above question framed clearly shows that what was
considered by this Court was as to whether the complainant in the FIR
case himself can be summoned as an accused, based on the deposition of
defence witnesses before the trial Court as the proposed accused is
required to be tried together with the accused already on trial. In the
present case, the above said position on the basis of the aforesaid question
is not relevant and, therefore, the said decision has no application in the
present case. The petitioners are not the complainants in the present case
who have been summoned but they are additional proposed accused.
The next submission of the learned senior counsel for the
petitioners is that the trial Court became functus officio on the date of
judgment i.e. 31.10.2017. In that connection, they cited paragraphs 37 to
39 from the Constitution Bench judgment of the Supreme Court in
Hardeep Singh's case (supra). They also relied upon paragraphs 13 and 14
from the judgment in the case of Tarsem Singh vs. State of Punjab, 2013
(3) RCR (Criminal) 585 and the decision in the case of Ramadhar Singh
@ Ramadhar Yadav vs. State of Bihar (Patna), 2015(24) RCR (Criminal)
548 and, in particular, paragraphs 13 to 15 thereof, to buttress their point.
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In my opinion, the judgments relied upon by the respondent in the case of
Shashikant Singh (supra) has the apt application in the present case and
the following paragraphs from the said judgment clearly answer the
argument advanced by the learned counsel for the petitioners. I quote
paragraphs 5, 6, 8, 10 and 13, which read as under:-
"5. During the pendency of the aforesaid revision petition,
the learned Sessions Judge concluded the trial against
Chandra Shekhar Singh and believing the ocular
testimony, by judgment dated 16th July, 2001, Chandra
Shekhar Singh was convicted for the offence under
Section 302 Indian Penal Code and Section 27 of the Arms
Act. In the revision petition, it was contended on behalf of
respondent No. 1 that since the trial in respect of Chandra
Shekhar Singh has already been concluded and no session
trial is pending before the trial court, Section 319 would
not be applicable as the said provision is applicable only
when the trial against another accused is pending and in
the absence of pendency of such a trial, the court is not
competent to proceed against respondent No. 1. The High
Court by the impugned judgment accepted the aforesaid
contention and held that the order dated 7th April, 2001 is
without jurisdiction. The order dated 7th April, 2001 was
quashed without issue of notice to the petitioner but on
hearing the counsel for the State of Bihar. The other
contentions urged during the hearing of the revision
petition that (i) the investigation against respondent No. 1
was kept pending and on that score, the Court had no
power to summon the said respondent under Section 319
of the Code; (ii) the order dated 7th April, 2001 is illegal
as no reasons have been assigned for proceeding against
respondent No. 1 and; (iii) the order was too cryptic, were
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not gone into by the High Court.
6. The trial against Chandra Shekhar Singh was pending
on 7th April, 2001 when the order under Section 319(1)
of the Code was passed by the Court of Sessions. Thus,
the order when passed cannot be said to be without
jurisdiction on the stated ground since at that stage, the
trial against Chandra Shekhar Singh was pending and
respondent No. 1 summoned under Section 319 could be
tried together with him. However, the trial against
Chandra Shekhar Singh concluded before respondent
No. 1 could be brought before the Sessions Court.
Therefore, the question is, can respondent No. 1, after
being summoned under Section 319 of the Code, be
tried in the absence of trial pending against Chandra
Shekhar Singh. In other words, the aspect to be
determined is as to whether the order dated 7th April,
2001 would become ineffective and inoperative as a
result of the conclusion of trial against Chandra
Shekhar Singh before respondent No. 1 could be
proceeded with for the offence for which warrants were
issued against him by the Sessions Court pursuant to an
order passed under Section 319 of the Code. That
section reads as under :
"319. Power to proceed against other persons
appearing to be guilty of 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, not
being the accused the Court may proceed against
such person for the offence which he appears to
have committed.
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(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 the 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."
8. The effect of the conclusion of the trial against the
accused who was being proceeded with when the order
was passed under Section 319(1) for proceeding against
the newly added person, is to be examined in the light of
sub-section (4) of Section 319 which stipulates a de novo
trial in respect of the newly added persons and certain
well settled principles of interpretation.
10. The intention of the provision here is that where in
the course of any enquiry into, or trial of, an offence, it
appears to the court from the evidence that any person
not being the accused has committed any offence, the
court may proceed against him for the offence which he
appears to have committed. At that stage, the court
would consider that such a person could be tried
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together with the accused who is already before the
Court facing the trial. The safeguard provided in
respect of such person is that the proceedings right
from the beginning have mandatorily to be commenced
afresh and the witnesses re-heard. In short, there has to
be a de novo trial against him. The provision of de novo
trial is mandatory. It vitally affects the rights of a
person so brought before the Court. It would not be
sufficient to only tender the witnesses for the cross-
examination of such a person. They have to be
examined afresh. Fresh examination-in-chief and not
only their presentation for the purpose of the cross-
examination of the newly added accused is the mandate
of Section 319(4). The words 'could be tried together
with the accused' in Section 319(1), appear to be only
directory. 'Could be' cannot under these circumstances
be held to be 'must be'. The provision cannot be
interpreted to mean that since the trial in respect of a
person who was before the Court has concluded with
the result that the newly added person cannot be tried
together with the accused who was before the Court
when order under Section 319(1) was passed, the order
would become ineffective and inoperative, nullifying the
opinion earlier formed by the Court on the basis of
evidence before it that the newly added person appears
to have committed the offence resulting in an order for
his being brought before the Court.
13. On facts, the court could not have intended while
concluding the trial against Chandra Shekhar Singh, to
nullify its earlier order directing issue of warrants
against respondent No. 1. The construction to be placed
on a provision like this has to commend to justice and
reason. It has to be reasonable construction to promote
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the ends of justice. The words 'could be' tried together
with the accused, in Section 319(1) cannot be said to be
capable of only one construction. If it was so approach
to be adopted would he different since the intention of
the Parliament is to be respected despite the
consequences of interpretation. There is, however, a
scope for two possible constructions. That being the
position, a reasonable and common sense approach
deserves to be adopted and preferred rather than a
construction that would lead to absurd results of
respondent No. 1 escaping the trial despite passing of
all order against him on Court's satisfaction under
Section 319(1) and despite the fact that the proceedings
against him have to commence afresh. In this view, the
fact that trial against Chandra Shekhar Singh has
already concluded is of no consequence insofar as
respondent No. 1 is concerned."
The decision in the case of Shashikant Singh (supra) was not
cited before the Constitution Bench in the case of Hardeep Singh (supra).
To my mind, the decision in the case of Shashikant Singh (supra) is
directly on the point involved as against the decision in the case of
Hardeep Singh (supra) and, therefore, in terms of the decision in the case
of Shashikant Singh (supra), the submission will have to be repelled,
which I hereby do. Even otherwise, paragraph-39 from Hardeep Singh's
case (supra) would also throw the light and I quote the same, which reads,
thus :-
"39. To say that powers under Section 319 Cr.P.C. can be
exercised only during trial would be reducing the impact of
the word `inquiry' by the court. It is a settled principle of law
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word used by the legislature is redundant, should be avoided
as the presumption is that the legislature has deliberately and
consciously used the words for carrying out the purpose of
the Act. The legal maxim "A Verbis Legis Non Est
Recedendum" which means, "from the words of law, there
must be no departure" has to be kept in mind. "
Apart from that, a Coordinate Bench of this Court in Amar
Nath vs. State of Haryana, 2003(1) RCR (Criminal) 220, held that the
power under Section 319, Code of Criminal Procedure, can be exercised
even after the judgment is concluded. In that case, the accused persons
were acquitted by the trial Court and after four months of the conclusion
of the trial, the trial Court exercised the power under Section 319, Code of
Criminal Procedure, for summoning the additional accused. This Court
relied upon the judgment in the case of Shashikant Singh (supra) for that
purpose. The present case stands on a better footing inasmuch as the
order was passed under Section 319, Code of Criminal Procedure,
simultaneously with the judgment and order of conviction of the original
accused persons. The contention raised by the learned counsel for the
petitioners, thus, stands disposed of.
Learned senior counsel for the petitioners having taken this
Court through the entire evidence of PW-4 Ajmer Singh, PW-5 Jaswant
Singh and PW-13 Ravinder Pal Singh submitted that a bare reading of the
evidence of these witnesses shows that the evidence taken into
consideration by the trial Court for making the order under Section 319,
Code of Criminal Procedure, is not legal evidence as against the
requirement of legal evidence for exercise of power under Section 319,
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Code of Criminal Procedure. Whatever evidence had been relied upon by
the trial Court is wholly inadmissible. The counsel, then, submitted that
the affidavit, Exhibit DX with the writ petition that was filed by
petitioner-Sukhpal Singh Khaira was also not a legal piece of evidence to
prove according to law nor the entire petition is on the record of the Court.
Therefore, marking Exhibit DX, a part of the whole document, would not
form the legal evidence. He relied on paragraphs 55 and 69 to 71 of the
judgment in Hardeep Singh's case (supra) and contended that those
paragraphs clearly show requirement of legal evidence before exercising
the power under Section 319, Code of Criminal Procedure. I have
carefully considered the submission made by the learned senior counsel
for the petitioners with reference to the judgment in the case of Hardeep
Singh (supra). But I quote paragraphs 70 and 71 from the said judgment,
which read thus:-
"70. With respect to documentary evidence, it is sufficient,
as can be seen from a bare perusal of Section 3 of the
Evidence Act as well as the decision of the Constitution
Bench, that a document is required to be produced and
proved according to law to be called evidence. Whether
such evidence is relevant, irrelevant, admissible or
inadmissible, is a matter of trial.
71. It is, therefore, clear that the word "evidence" in
Section 319 Cr.P.C. means only such evidence as is made
before the court, in relation to statements, and as
produced before the court, in relation to documents. It is
only such evidence that can be taken into account by the
Magistrate or the Court to decide whether power under
Section 319 Cr.P.C. is to be exercised and not on the basis
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of material collected during investigation."
A reading of the above paragraphs shows that whether
evidence is relevant, irrelevant, admissible or inadmissible are matters to
be seen at the trial and in this case in the retrial/denovo trial due to the
order passed under Section 319, Code of Criminal Procedure. The
decision in the case of Shashikant Singh (supra), in para-10 thereof, would
again be relevant with reference to the interpretation of Section 319(4),
Code of Criminal Procedure, as there is a full opportunity to the additional
accused persons to object to the evidence as relevant or irrelevant and
admissible or inadmissible. At the same time, the prosecution cannot be
forbidden from bringing to the Court such other evidence against the
additional accused persons which can be proved as legally admissible
evidence as a denovo trial is required to be held in the light of Sub-section
(4) of Section 319, Code of Criminal Procedure. The provisions of
Section 319, Code of Criminal Procedure, therefore, cannot be interpreted
to impede the production of whatever evidence by the denovo trial against
the additional accused persons.
At any rate, a look at the evidence of PW-4 Ajmer Singh,
PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh, which has been
relied upon by the trial Court, for exercising power under Section 319,
Code of Criminal Procedure, shows that some part of the evidence is
admissible while some part of the evidence is inadmissible. But then, as
earlier stated, the same can be subject matter of objection in denovo trial.
But on that ground, the interest of justice cannot be buried if really the
additional accused persons are involved in the crime. As to the document,
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Exhibit DX, I find that Exhibit DX was part and parcel of the writ petition
that was filed by petitioner-Sukhpal Singh Khaira along with some
documents. In my opinion, upon filing of certified copy of the writ
petition along with documents, the prosecution would be entitled to prove
the said document in the denovo trial and the prosecution cannot be
prohibited from doing so as the trial itself would be held de-novo. The
meaning of the word 'de-novo' cannot be stretched to mean that whatever
evidence was led earlier in the earlier trial could only be read by the
prosecution and any additional evidence cannot be led and proved. I think
that the term 'denovo' itself suggests that both the parties will be entitled
to advance such evidence as they deem fit, the trial being denovo.
Therefore, whether Exhibit DX and its documents, and the call records,
filed along with the writ petition are admissible or not is a matter of proof
before the trial Court and certainly the petitioners are entitled to object to
the admissibility of the documents for want of legal proof in the denovo
trial. To say that Exhibit DX or the certified copy of the writ petition
could not be looked into by the trial Court would be to prohibit the
prosecution from effectively participating in the denovo trial. That would
not serve the interest of justice.
Learned senior counsel for the petitioners then contended that
in the Constitution Bench decision in the case of Hardeep Singh (supra), it
has been held in paragraphs 98 and 99 thereof, that the power under
Section 319, Code of Criminal Procedure cannot be exercised in a casual
and cavalier manner and the requirement is the existence of stronger
evidence more than a prima facie case. There can be no dispute about the
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said proposition laid down in the case of Hardeep Singh (supra). But
then, I find that the evidence pointed out by the Public Prosecutor and the
reasons given by the trial Court in that behalf, which are quoted
hereunder, cannot be said to be leading to merely a prima facie case. The
details of calls between the additional accused persons and the convicted
accused persons are a matter which cannot be taken lightly in the wake of
drug smuggling across Pakistan border. I quote the following portion
from the impugned judgment :-
"Learned Addl. P.P. further argued that call details
of numbers of mobile phones used by accused from
05.03.2015 to 23.04.2015 proved on the file. PW-13
Ravinderpal Singh proved the meeting of mind of accused
when he proved that mobile number 98144-00050 used by
Gurdev Singh Chairman, mobile number 97803-14956,
99880-15339, 94654-14956 used by Harbans Singh
accused, mobile number 95018-62815, 99150-82156 used
by Subash chander accused, mobile number 70875-57854,
70875-91854 used by Manjeet Singh son of Boota Singh,
mobile No.81468-03304 used by Manjeet Singh son of
Satnam Singh driver of Gurdev Singh, mobile No.98141-
93771 used by Gurdev Chand, mobile No.95925-95237
used by Anil Kumar, mobile No.98884-28723 used by
Sonia, mobile No.98783- 66557 used by accused Nirmal
Singh alias Nimma, mobile No.99158- 01906, 88726-80281
used by accused Shunty, mobile No.98153-33333 used by
Sukhpal Singh Khehra, mobile No.94647-78839 used by
accused HC Joga Singh PSO Sukhpal Singh Khehra,
mobile No.98786-23933 used by Manish PA of Sukhpal
Singh Khehra. Learned Addl.P.P. further argued that
accordingly, Interconnectivity of calls between the
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Criminal Revision No. 4070 of 2017 26
accused is proved on the file.
Learned Addl. P.P. further argued that during
investigation, it is transpired that kingpin behind whole of
the sequence was Sukhpal Singh Khaira who through his
personal security Officers PSO Joga Singh, PA Manish
and Charanjit Kaur sister of accused Gurdev Singh were
behind the curtain. Learned Addl.P.P further argued that
as far as this fact that these accused are behind the
curtain is proved on the file when PW-4 Ajmer Singh S.P.
specifically deposed that accused Gurdev Singh used to
contribute money in the elections of Sukhpal Singh
Khaira and he also provided his vehicle for campaigning.
Learned Addl.P.P further argued that it is primafacie also
proved on the file that Charanjit Kaur who is residing in
U.K. and is the sister of accused Gurdev Singh assured
accused Gurdev Singh that if there is any problem while
doing smuggling of Heroin then he can call PSO Joga
Singh, PSO of Sukhpal Singh Khaira. Learned Addl.P.P
further argued that these facts were mentioned by Ajmer
Singh, S.P. PW-4 in his case diary in the Zimni No.5 dated
09.03.2015. Ajmer Singh S.P. further brought these facts
to the notice of Sh. Swapan Sharma, the then S.S.P.
Fazilka and SSP Fazilka further informed these facts to
I.G. Bathinda Zone, who further constituted a SIT. The
SIT consists of Sh. Amar Singh Chahal, DIG Ferozepur,
Sh. Swapan Sharma, the then SSP, Fazilka and Sh.
Amarjit Singh S.P.(D), Ferozepur.
Learned Addl.P.P further argued that PW-5
Inspector Jaswant Singh also deposed on the same lines as
deposed by PW-4 S.P. Ajmer Singh.
Learned Addl. P.P further argued that the narcotic
trade is a big challenge not only to the health and
prosperity of citizens, but to the security of the nation
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also.
As the things stand out, this FIR No. 35 was
registered and Challan against 10 accused was presented
by mentioning that after investigation the challan against
the remaining accused will also be filed but till date no
challan is presented against other accused whose names
are mentioned in the application under section 319
Cr.P.C. Vide my separate Judgment, all the accused
against whom the challan was presented except one are
convicted today. The proceedings of this application was
separated from the main challan because Hon'ble High
Court in the main challan has directed this court to decide
the case up to 08.11.2017. During the trial PW-13 proved
Call details of numbers of mobile phones used by accused
from 05.03.2015 to 23.04.2015. Interconnectivity of calls
between the accused is also proved on the file. Further
PW-4 & PW-5 specifically deposed regarding the
involvement of these accused in this crime. PW-4 S.P.
Ajmer Singh specifically deposed that he mentioned these
facts in his case diary in the Zimni No.5 dated 09.03.2015
and he further brought these facts to the notice of Sh.
Swapan Sharma, the then SSP, Fazilka. PW-4 S.P. Ajmer
Singh also deposed that S.S.P. Fazilka further brought
this to the notice of I.G. Bathinda Zone, who constituted a
SIT.
As discussed above, I am satisfied that there is every
likelihood that accused Sukhpal Singh Khaira, Joga Singh
PSO of Sukhpal Singh Khaira, Manish PA of Sukhpal
Singh Khaira, Charanjit Kaur sister of accused Gurdev
Singh and Major Singh Bajwa are likely to be convicted if
allegations are not rebutted, further while filing the
challan it was mentioned that after completing the
investigation challan against these accused will be filed
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but the same is not filed by the police. So to my mind
accused must be summoned to face the Trial and to rebut
the allegations."
The view taken by the trial Court as above, as per the
requirement of paragraphs 98 and 99 of the Constitution Bench judgment
in the case of Hardeep Singh (supra), need not be substituted by me as
there is no perversity in what has been held by the trial Court. It is not
that the order is without jurisdiction, considering the scope of revisional
jurisdiction of this Court. I, therefore, hold that even the said requirement
of paragraph-99 has been met with by the trial Court.
The next submission made by the learned senior counsel for
the petitioners is that the trial Court could not have directed filing of
supplementary charge-sheet as the trial Court does not have such power,
as held by the Apex Court in some decisions. I have no doubt in my mind
that the law is trite that the Court does not have power to order filing of
supplementary charge-sheet. But then, there are peculiar facts in the
present case. When the challan was filed before the trial Court by the
Special Investigation Team, it was specifically stated as under regarding
reserving its right to file supplementary charge-sheet:-
"In connection to absconding persons and suspected
persons, investigation is going on. Permission under the
Arms Act has been sought from worthy DM and is
annexed with this Challan. Upon completion of
investigation against absconding and suspected persons,
supplementary challan report shall be submitted under
Section 173(8) of Cr.PC"
It is a settled legal position that filing of supplementary
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challan, one or in multiples, is permissible under Section 173, Code of
Criminal Procedure. To contend that first supplementary challan was filed
and in that the petitioners were not named would be no answer because
the authority to file one more supplementary charge-sheet of the
investigating machinery has not been taken away. Therefore, the
investigating agency is entitled to file supplementary charge-sheet. As
stated by me earlier, the direction to file supplementary charge-sheet will
have to be read down in the order impugned as the liberty to the
investigating agency to file supplementary charge-sheet, if they want.
Accordingly, the said part of the order will have to be modified to bring it
in consonance with the settled legal position, which I will do hereinafter.
The next submission made by the learned senior counsel for
the petitioners that the trial Court should not have issued non-bailable
warrants against the accused, must be upheld. It is a well settled legal
position that such a course of action should not be pressed into service.
The trial Court has not recorded a single reason as to why instead of
issuing summons, straightway warrants have been issued. I think the trial
Court has overdone it. The trial Court was not at all justified in doing so.
Hence, the said part of the order issuing non-bailable warrants for
securing the presence of the petitioners, must be set aside. Consequently,
liberty will have to be granted to the petitioners to apply for
anticipatory/regular bail, as advised, before the trial Court first.
The upshot of the above discussion is that the impugned order
under Section 319, Code of Criminal Procedure, will have to be upheld.
In the result, the following order is inevitable:-
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Criminal Revision No. 4070 of 2017 30
ORDER :
i) Criminal Revision No. 4070 of 2017 and Criminal Revision No. 4113 of 2017 are dismissed.
ii) The order directing filing of supplementary charge-sheet is modified and shall be read as under:-
"Liberty is reserved in favour of the Investigating Agency to file supplementary charge-sheet against the additional accused persons, if so advised."
iii)The order issuing non-bailable warrants for securing presence of the petitioners in both these petitions is quashed and set aside. Liberty is reserved in favour of the petitioners to apply to the trial Court for anticipatory/regular bail, which shall be considered by the trial Court on its own merits without being influenced by the observations in the order made by it under Section 319, Code of Criminal Procedure.
November 17, 2017 (A.B. CHAUDHARI)
Kang JUDGE
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