Punjab-Haryana High Court
Daljinder Singh @ Bitu vs State Of Punjab on 18 July, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Revn. No. 520 of 2013 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Revn. No. 520 of 2013
DATE OF DECISION: 18.07.2013
Daljinder Singh @ Bitu ..........Petitioner
Versus
State of Punjab ..........Respondent
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. RS Cheema, Senior Advocate with
Mr. R.K. Trikha, Advocate
for the petitioner.
Mr. Rupam Aggarwal, DAG, Punjab.
****
DAYA CHAUDHARY, J.
The present revision petition has been filed to challenge impugned order dated 5.11.2012, whereby, an application moved by prosecution under Section 319 Cr.P.C. to summon the present petitioner as an additional accused to face trial in case FIR No. 22 dated 28.2.2011 registered under Sections 302,148,149,120-B IPC and Section 25 of Arms Act at Police Station Model Town, District Hoshiarpur, has been allowed.
Briefly, the facts of the case are that petitioner was found innocent during investigation and was placed in column No.2. Thereafter an application was moved under Section 319 Cr.P.C. by the prosecution to summon the present petitioner to face trial along with other accused persons. The said application was allowed vide order dated 5.11.2012, which is subject matter of challenge in the present petition. Pooja Sharma 2013.08.02 11:32 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (2)
Learned senior counsel for the petitioner contends that the petitioner was neither named in the FIR nor even any kind of suspicion was raised regarding his involvement in the occurrence. Even during investigation conducted by the police, the petitioner was found innocent and was kept in column No.2. Learned senior counsel for the petitioner further contends that statements of PW-1 and PW-2 were recorded but they were not cross-examined and the same was deferred by the trial Court on the request of defence counsel. In the statement by PW-2 Rakesh Kumar, who was an eye witness to the occurrence, neither any allegation nor any kind of suspicion was raised against the present petitioner. Learned senior counsel also submits that the petitioner has been summoned without having any evidence against him. The only ground, which has been mentioned in the impugned order is that a suspicion has been raised by the complainant in the statement recorded under Section 161 Cr.P.C. As per statement of complainant-Kamlesh (PW-1), her brother Rakesh Kumar, who is an eye witness to the occurrence had told her the names of the persons who have committed the crime but name of the present petitioner was not told.
Learned counsel for the respondent-State submits that the order on the application is well reasoned and the same does not require any interference. It has come in the statement of complainant-Kamlesh, PW-1 that she was suspecting about committing of murder of her husband by the present petitioner along with other accused. Learned counsel for the State also submits that it is a matter of evidence but that evidence is not to be seen at the time of consideration of the application but the same can be considered by the Court at the time of trial.
Heard the arguments advanced by learned counsel for the parties and have also perused the impugned order dated 5.11.2012. Pooja Sharma 2013.08.02 11:32 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (3)
Admittedly, the FIR in the case was registered on the basis of complaint made by complainant-Smt. Kamlesh w/o deceased-Harjinder Singh by stating that her husband-Harjinder Singh @ Pappu had gone out of his house for some personal work on 27.2.2011 at 7.00 pm. At about 8.30 pm, brother of complainant, namely, Himat Kumar came to her house on motorcycle and told that someone had inflicted injuries to Harjinder Singh and had killed him. Complainant along with her brother reached at the spot and saw the body of her husband, who was found dead. Bullet injuries on head, arms and hands of the deceased were noticed. Cartridges as well as empty Cartridges were lying near the dead body. It was also mentioned in the FIR by the complainant that one Naresh Kumar had got registered a false murder case against her husband and son Deepak as he was also having grudge against her family since long. It was also stated by her in the FIR that Naresh Kumar, Ashwani, Happy @ Khargos, Lakha, Daljinder Singh @ Bitu have committed murder of her husband with common intention.
A detailed investigation was conducted and petitioner was found innocent by the police and was kept in column No.2 . Statement of complainant was recorded under Section 161 Cr.P.C., wherein, she has stated that her younger brother-Rakesh Kumar had witnessed the persons committing murder of her husband during the night of 27.4.2011 and had disclosed that Naresh Kumar @ Ghanti had fired a shot with his pistol to take revenge of murder of his brother-Rajesh. The petitioner was not named by complainant in the statement recorded under Section 161 Cr.P.C. As per statement of Rakesh Kumar, who is an eye witness and brother of the complainant, recorded under Section 161 Cr.P.C., Naresh Kumar @ Ghanti, Charanjit Singh @ Happy, Sagar Agnihotri @ Ginni, Karamjit Singh @ Happy, Amritpal Singh @ JV, Lakhvinder Singh @ Lakha Pooja Sharma 2013.08.02 11:32 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (4) and Anuj Saini were giving beatings to his brother-in-law (deceased). It was also stated that he stopped his motorcycle and noticed that Naresh Kumar was armed with pistol and was giving gun shots upon his brother-in- law. The role of other accused were also given but neither the petitioner was named nor any role was assigned to him.
After presentation of challan, charges were framed against accused persons and thereafter statements of complainant-Kamlesh (PW-
1) and Rakesh Kumar (PW-2) were recorded on 24.4.2012. In the statement of Kamlesh (PW-1), she has raised only suspicion against the present petitioner. After statements of PW-1 and PW-2 were recorded, an application was moved by prosecution under Section 319 Cr.P.C., which was allowed. A perusal of statements of PW-1 and PW-2 shows that there is no evidence against present petitioner to connect him with the offence. It has been stated by the complainant that that her brother-Rakesh Kumar had witnessed the incident and named the persons who had caused injuries to the deceased. Rakesh Kumar (PW-2), who is stated to be an eye witness to the occurrence does not say anything about involvement of the present petitioner in the crime. Moreover, an accused, who is found innocent in the investigation cannot be summoned on the basis of suspicion only unless some evidence is there to connect him with the commission of offence.
It is a settled proposition of law that power under Section 319 Cr.P.C. can be exercised in case the Court is satisfied that any person other than the accused, who has committed an offence is also involved in the offence. The power under Section 319 Cr.P.C. no doubt is discretionary but the same is to be exercised judicially with due care and caution and only when compelling reasons exist for taking cognizance against the person against whom action has not been taken earlier. It is to be seen by Pooja Sharma 2013.08.02 11:32 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (5) the summoning Court on careful reading of the evidence placed before the Court that there are chances of convicting the accused person. Even the Hon'ble Supreme Court has observed to the extent that mere existence of prima facie case against an accused does not fulfill the requirement of higher standard set up for the purpose of invoking the jurisdiction under Section 319 Cr.P.C.
Before proceeding further in the matter, it is to be seen whether powers under Section 319 Cr.P.C can be invoked in appropriate situations. Section 319 of the Cr.P.C is reproduced 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, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then -
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
From the basic requirement for invoking the provisions of Pooja Sharma 2013.08.02 11:32 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (6) Section 319 of the Cr.P.C., it is clear that in case, it appears to the Court from the evidence collected during trial or in the inquiry that some other persons who are not arraigned as an accused in that case, have also committed an offence for which they could be tried together with the accused already arraigned. It is also clear from Section 319 of the Cr.P.C that the Court must have reasonable satisfaction from the evidence already collected regarding two aspects i.e firstly that the persons summoned have committed the offence and secondly those persons can be tried along with the accused already facing trial.
Hon'ble the Supreme Court in the case titled as Michael Machado Vs. Central Bureau of Investigation 2000 (2) RCR (Criminal) 75 has held that the Court while summoning the person as an additional accused must satisfy that there is a reasonable prospect of conviction of the person, who has been sought to be summoned as an additional accused. The discretion under Section 319 Cr.P.C has to be exercised very sparingly and with caution. The relevant part of the said judgment is reproduced as under :-
" The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused."
But even then what is conferred on the court is only a Pooja Sharma 2013.08.02 11:32 discretion as could be discerned from the words "the court may I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (7) record against such person." The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons."
In another case titled as Mohd. Shafi Vs. Mohd. Rafiq reported as 2007 (2) RCR (Criminal) SC 762, it has been held by Hon'ble the Supreme Court that the Court cannot summon the person on the basis of examination-in-chief. The relevant para of the said judgment is reproduced as under :-
"12. The trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same."
It is clear from the said judgment that before exercising the discretionary power provided under Section 319 Cr.P.C., the Court must arrive to the satisfaction that there exists possibility that the accused so summoned is in all likelihood would be convicted and such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. The summoning order passed on the basis of examination-in-chief was set aside by the Hon'ble Supreme Court only on the basis of this ground.
Similarly, in the case titled as Municipal Corporation of Delhi Pooja Sharma 2013.08.02 11:32 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (8) v. Ram Kishan Rohtagi and others reported as 1983(1) RCR (Crl.) 73, the Hon'ble Supreme Court held that even if a person has not been sent for trial by the police, the trial Court would be entitled to invoke its jurisdiction after taking evidence. The relevant portion of the judgment is reproduced as under :-
" 19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfied the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law."
Similar view has also been taken in the judgment of Yuvrag Ambar Mohite v. State of Maharashtra reported as 2006(10) Scale 369.
Hon'ble the Supreme Court in another judgment titled as Krishnappa v. State of Karnataka reported as 2004(4) RCR (Criminal) 678 while relying upon the judgment of Michael Machado (supra) went on to hold that power under Section 319 Cr.P.C is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person on the basis of connecting evidence. The observation made by Hon'ble the Supreme Court in the said judgment is as under :-
".......a judicial exercise is called for, keeping in conspectus of Pooja Sharma 2013.08.02 11:32 the case, including the stage at which the trial has already I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (9) proceeded with the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence.
The Court further observed :
"The Court, while examining an application under Section 319 Cr.P.C., has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 Cr.P.C., all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused."
This view has further been upheld by Hon'ble the Supreme Court in the cases titled as Shashi Kant Singh v. Tarkeshwar Singh & anr., reported as 2002(3) RCR (Criminal) 191, Rakesh v. State of Haryana reported as 2001(3) RCR (Criminal) 681, Bholu Ram v. State of Punjab & anr., reported as 2008(4) RCR (Criminal) 187 and Y. Saraba Reddy v. Puthur Rami Reddy and anr. Reported as 2007(2) RCR (Criminal) 1014, as well.
It is clear from all the judgments discussed above that the power under Section 319 Cr.P.C is to be used only when sufficient and cogent reasons exists and in all likelihood accused would be convicted. Mere ipse dixit is not sufficient to summon a person as an additional accused under Section 319 Cr.P.C. Such an evidence must be convincing one to exercise extraordinary jurisdiction. The discretion is to be exercised very sparingly and with due care and caution for forming an opinion to summon a person as an additional accused.
In the present case, admittedly the petitioner has been Pooja Sharma 2013.08.02 11:32 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Revn. No. 520 of 2013 (10) summoned only on the basis of statements of PW-1 and PW-2 without recording any satisfaction by the trial Court, whereas, there was no evidence before the summoning Court to allow the application moved by the prosecution. Neither from the statements of PW-1 nor of PW-2, the petitioner cannot been connected with the involvement of commission of offence in any manner. The evidence, which has been considered by the summoning Court, was already with the investigating agency and petitioner was found innocent.
In view of the settled proposition of law, as well as, the discussion as made above, the petition is allowed and the impugned summoning order dated 5.11.2012 is hereby set aside.
July 18, 2013 (DAYA CHAUDHARY)
pooja JUDGE
Pooja Sharma
2013.08.02 11:32
I attest to the accuracy and
integrity of this document
High Court, Chandigarh