Punjab-Haryana High Court
Krishan Lal & Ors vs State Of Haryana on 8 February, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Criminal Revision No.344 of 2012(O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Revision No.344 of 2012(O & M)
Date of Decision:08.02.2012
Krishan Lal & Ors. .....petitioners
Versus
State of Haryana .....respondent
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.Hemant Bassi, Advocate
for the petitioners
***
RAMESHWAR SINGH MALIK J.(ORAL):
CRM No.7433 of 2012 Application is allowed subject to all just exceptions. Criminal misc.application stands disposed of. CRM No.7434 of 2012 Application is allowed subject to all just exceptions. Criminal misc.application stands disposed of. Criminal Revision No.344 of 2012(O & M) The petitioners, feeling aggrieved against the impugned order dated 17.01.2012 passed by the learned Additional Sessions Judge, Ambala, have approached this Court, by way of instant petition, invoking its revisional jurisdiction.
Learned counsel for the petitioners submits that the impugned order dated 17.01.2012 passed by the learned Additional Sessions Judge, Ambala, allowing the application under Section 319 Criminal Revision No.344 of 2012(O & M) 2 Cr.P.C. summoning the petitioners as additional accused, in the criminal trial of FIR No.148 dated 12.10.2009 under Sections 302 /148/ 149/ 323 / 427/452/506 IPC Police Station Mullana, is totally against the facts and circumstances and also against the law laid down by the Hon'ble Supreme Court.
Learned counsel for the petitioners relied upon Mohd.Shafi versus Mohd.Rafiq and anr.2007 Crl.Law Journal 3198(1) SC, Ram Singh & ors.versus Ram Niwas & anr.2009(3)RCR(Criminal) 501, Lal Suraj @ Suraj Singh & anr.versus State of Jharkhand 2009(1)RCR (Criminal) 504, Sarabjit Singh & anr.versus State of Punjab & anr.2009 (3)RCR (Criminal) 388, Ripen Kumar versus Department of Customs 2001 Crl.Law Journal 1288, Michael Machado & anr.versus Central Bureau of Investigation & anr.2000(2)RCR (Criminal) 75, Ranjit Singh versus State of Punjab 1998 Crl.Law Journal 4618(1), Hardeep Singh versus State of Punjab 2008(4)RCR (Criminal) 947, Municipal Corporation of Delhi versus Ram Kishan Rohtagi & Ors.1983(1)RCR (Criminal) 73 and Harbhajan Singh & anr.versus State of Punjab & anr.2009(3) RCR (Criminal) 916, to contend that in the facts and circumstances of the present case, the petitioners ought not to have been summoned by the learned trial Court while allowing the application under Section 319 Cr.P.C. Learned counsel concluded his arguments submitting that the impugned order was liable to be set aside.
The petitioners approached this Court earlier also against a similar order dated 16.08.2011 passed by the same learned trial Court at the stage when only the examination-in-chief of PW 6 Sukhjit Singh was carried out and his cross-examination was yet to be conducted. In fact, two criminal revision petitions were filed before this Court, i.e.Criminal Revision No.2025 of 2011 (Satish Kumar versus State of Haryana) and Criminal Criminal Revision No.344 of 2012(O & M) 3 Revision No.2068 of 2011 (Babu Ram & Ors.versus State of Haryana). Both these criminal revision petitions came to be disposed of by this Court, vide order dated November 02, 2011, which reads as under:
This order shall dispose of two revision petitions bearing CRR-2025-2011 titled as 'Satish Kumar Vs. State of Haryana' and CRR-2068-2011 titled as `Babu Ram and others Vs. State of Haryana' in which the petitioners are praying for setting aside the order of the learned Additional Sessions Judge, Ambala dated 16.08.2011 by which they have been summoned under Section 319 of the Code of Criminal Procedure, 1973 [for short "Cr.P.C."].
The FIR was registered on the statement of Bahadur Singh, who had alleged that he was driving the motorcycle bearing registration No.PB-27-9766 mark CT-100 on which Kuldeep Singh was pillion rider. At about 7.10 p.m., when they were a little ahead of Peer Baba towards Kalpi, 3 youths riding on a motorcycle came from behind armed with swords and gandasis and gave a gandasi blow to Kuldeep Singh, as a result of which they lost the balance and fell in the ditches on the side of the road. At that point of time, 10-12 more persons came there on 3-4 motorcycles. They were also armed with swords and gandasis. He and Kuldeep Singh ran towards the fields but were chased by those persons. After a short distance, Bahadur Singh allegedly fell down in the filed of rice and those persons could not see him due Criminal Revision No.344 of 2012(O & M) 4 to darkness, but they kept on chasing Kuldeep Singh to whom injuries were given. He had alleged that he could recognize Balbir Singh, Gian Chand and Satish Kumar, but he could not recognize the others due to darkness who can only be described by Kuldeep Singh. While going back, the said persons also damaged his motorcycle. It is alleged that he suffered injuries on his left hip, both arms and toe of his right foot. He gave a phone call at the house of Kuldeep Singh and informed his wife about the incident who told him that those very persons had also come to their house and fought with the ladies by giving them beatings. The said persons had a grudge because of the occurrence dated 09.10.2009. Thereafter, Kuldeep Singh was referred by the doctor to PGI, Chandigarh and had ultimately succumbed to his injuries.
After investigation, the challan was presented only against Gian Chand, Ram Pal @ Pala and Gulab Singh. The prosecution had examined 5 formal witnesses and Sukhjit Singh @ Joni, who is the son of deceased Kuldeep Singh, only to the extent of his examination-in-chief and when his examination-in- chief was over, the public prosecutor moved an application under Section 319 Cr.P.C. on 13.04.2011 for the purpose of summoning the 12 accused including the petitioners in both the revision petitions. The said application has been allowed by the learned Court below vide its impugned order dated 16.08.2011 Criminal Revision No.344 of 2012(O & M) 5 which is being assailed herein.
Learned counsel for the petitioners has submitted that although Bahadur Singh/complainant had named 3 persons, namely, Gian Chand, Satish Kumar and Balbir Singh, but Balbir Singh was found to be innocent by the police and a request was made for his discharge which was declined by the learned Magistrate but his revision was allowed by the learned Additional Sessions Judge, Ambala on 23.04.2010. He further submits that Sukhjit Singh is himself involved in 11 cases and has named the petitioners because they are witnesses in Criminal Case No.41 of 2009 registered at Police Station Mullana against Sukhjit Singh. He further submits that even Sukhjit Singh had filed a petition bearing CRM-M-36659-2009 for handing over investigation to some independent agency but the same was dismissed on 26.04.2010. It is further submitted that Bahadur Singh suffered a supplementary statement under Section 161 of the Cr.P.C. in which he did not mention the names of the petitioners.
Learned counsel for the petitioners has further argued that the learned Trial Court, while allowing the application filed under Section 319 Cr.P.C., has relied upon only the examination-in-chief of Sukhjit Singh. He has referred to a decision of the Supreme Court in the case of Mohd. Shafi v. Mohd. Rafiq and another, 2007 Crl. L.J.3198(1) and a Criminal Revision No.344 of 2012(O & M) 6 Division Bench judgment of the Delhi High Court in the case of Ripen Kumar v. Department of Customs, 2001 Crl. L. J.1288 to contend that the evidence means the examination-in-chief and cross-examination and if a witness is not permitted to be cross-examined, then his statement cannot be termed as an evidence nor can be read as such.
On the contrary, learned State Counsel has referred to a decision of the Supreme Court in the case of Hardeep Singh v. State of Punjab and others, 2008(4) R.C.R. (Criminal) 947 in which two questions have been referred to the Bench of 3 Hon'ble Judges, namely, (1) when the power under Section 319 Cr.P.C. of addition of accused can be exercised by a Court? Whether application under Section 319 Cr.P.C. is not maintainable unless the cross-examination of the witness is complete? (2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?
However, the decision in Mohd. Shafi's case (supra) has not been overruled so far. In this regard, learned counsel for the petitioners has relied upon a decision of the supreme Court in the case of State of Bihar v. Kalika Kuer @ Kalika Singh and others, AIR 2003 Supreme Court 2443 to contend that if there is a Criminal Revision No.344 of 2012(O & M) 7 decision per incuriam because a possible aspect of matter was not considered or not raised before Court or more aspects of matter should have been gone into by Court deciding matter earlier, then it can be resolved only in two ways either to follow the earlier decision or refer the matter to a larger Bench to examine the issue.
I have heard both the learned counsel for the parties, perused the record and I am of the view that the matter requires re-look by the learned Trial Court who should have waited for the cross-
examination of PW6 Sukhjit Singh before passing the order on the application filed under Section 319 Cr.P.C. In view thereof, the present revision petitions are allowed and the matter is remanded back to the learned Trial Court to re-decide the application filed under Section 319 of the Cr.P.C. after cross- examination of PW6 Sukhjit Singh.
A photocopy of this order be placed on the file of another connected case.
The case was remanded back by this Court because this Court was of the view that the matter, at that point of time required a re- look by the learned trial Court,which ought to have waited for the cross- examination of PW6 Sukhjit Singh, before passing the order on the application under Section 319 Cr.P.C. The learned trial Court was directed to re-decide the application filed under Sections 319 Cr.P.C., after cross- examination of PW 6 Sukhjit Singh. It is admitted position on record that after the above said remand order passed by this Court, PW 6 Sukhjit Criminal Revision No.344 of 2012(O & M) 8 Singh had been cross-examined at length. Copy of the statement recorded in his cross-examination on 05.12.2011 is appended at Annexure P-10.
Learned Additional Sessions Judge, Ambala, after examining the deposition of PW6 Sukhjit Singh, in its entirety, has come to the conclusion that the petitioners are liable to be arrayed as additional accused. The learned trial Court, after referring to the deposition of PW 6 Sukhjit Singh, observed as under:
"From the deposition of PW 6 Sukhjit Singh, it is clear that the offences under the above stated sections are also made out against the above stated 12 persons. Rather, such evidence shows that they had also committed the crime in question. They have been specifically named by the said PW in his deposition before the Court and have been attributed the role stated by him in his deposition. Such evidence, if taken as true, will lead to the conviction of the above stated 12 persons except Babu Ram (since deceased).
Careful perusal of the impugned order further shows that the learned trial Court has also discussed the relevant judgements rendered by the Hon'ble Supreme Court on the scope of Section 319 Cr.P.C. It is clear from paras No.13 to 15 of the impugned order that the learned trial Court has given its due consideration to the contentions raised and has rightly relied upon the law laid down by the Hon'ble Supreme Court, in this regard.
I have heard learned counsel for the petitioners and with his able assistance have gone through the record of the case.
After giving my thoughtful consideration to the contentions Criminal Revision No.344 of 2012(O & M) 9 raised and facts and circumstances of the case, this Court is of the considered opinion that present revision petition is liable to be dismissed. A perusal of the impugned order shows that the learned Additional Sessions Judge has considered the deposition of PW 6 Sukhjit Singh in the right perspective. The relevant judgements of the Hon'ble Supreme Court including the judgements noted above, relied upon by the learned counsel for the petitioners have been discussed and the judgements which are applicable in the facts of this case, those have been rightly followed.
So far as the judgements cited by the learned counsel for the petitioners are concerned, there is no dispute about the principle of law enunciated therein. The golden rule is that the discretionary powers under Section 319 Cr.P.C. are to be exercised sparingly and whenever warranted to secure the ends of justice. However, the peculiar facts and circumstances of any particular case are to be seen first and the codified or judge made law is to be applied later. Neither it is possible nor advisable to put the scope of Section319 Cr.P.C. in a straight jacket formula because it will lead to defeat the ends of justice.
Coming back to the facts of the present case, the material witness has not only specifically named the petitioners but role has also been attributed which was played by them while committing the offence. The learned Court has also recorded its satisfaction that the evidence against the petitioners, if taken as true, will lead to their conviction.
Further, this Court is not sitting in appeal over the impugned order. It is the settled proposition of law that the revisional jurisdiction is to be exercised only when there is a patent illegality or perversity in the impugned order resulting into miscarriage of justice. No manifest illegality has been pointed out in the impugned order warranting the exercise of revisional jurisdiction.Criminal Revision No.344 of 2012(O & M) 10
In terms of the ratio of above noted judgements of the Hon'ble Apex Court, it is the well settled proposition of law that while considering the application under Section 319 Cr.P.C., only a prima facie case is required to be made out. In the present case, learned trial Court has observed that the evidence, if taken as true, will lead to the conviction of the above said 12 persons except Babu Ram (since deceased). It shows due application of the judicious mind on the part of the learned trial Court. This Court do not find any illegality or perversity in the order passed by the learned trial Court.
In view of the totality of peculiar facts and circumstances of the present case, coupled with the reasons aforementioned, this Court finds that the present petition is bereft of any merit. It must fail and the same is dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 08.02.2012 neenu