Punjab-Haryana High Court
Nikhil Dudeja vs State Of Haryana on 4 July, 2022
IN THE HIGH Court OF PUNJAB & HARYANA
AT CHANDIGARH
241
CRR-299-2022 (O&M)
Date of decision: 04.07.2022
NIKHIL DUDEJA
....Petitioner(s)
Versus
STATE OF HARYANA
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present : Mr. K.S. Nalwa, Advocate with
Mr. Chakitan V.S. Papta, Advocate
for the petitioner.
Mr. Kanwar Sanjiv Kumar, AAG Haryana.
*****
VINOD S. BHARDWAJ. J. (ORAL)
The point that comes up for consideration in the present petition relates to the exercise of power under Section 319 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC') for summoning of an additional accused. The present petition raises a challenge to the order dated 03.02.2022 passed by the Additional Sessions Judge, Gurugram exercising the jurisdiction under Section 319 CrPC thereby summoning the petitioner as an additional accused for facing prosecution in FIR No.434 dated 03.10.2019 under Sections 489-A, 489-C, 489-D and 201 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') registered at Police Station Civil Lines District Gurugram. FACTS:
2. Before adverting to the merits of the instant controversy, the undisputed facts as have been brought before this Court are noticed as under:-
2.1 The FIR in question was registered on the statement of Rishi Kumar, Asst. Registrar Cooperative Society, who was posted as Incharge SST-3 on an election duty assigned to him by the Election Commission. It was reported by him that on 03.10.2019 he was present along with his team and had installed check 1 of 23 ::: Downloaded on - 25-07-2022 01:15:28 ::: CRR-299-2022 (O&M) -2 -
post on Civil Lines Road, Gurugram opposite Church. A Honda City car bearing registration No. HR-26DA-6652 came from the side of the market which was signalled to be stopped by the team for checking. Upon carrying out checking of the said car, 18 bundles of fake currency notes of Rs.2000/- denomination and two bundles of notes of Rs.500/- denomination were recovered from the boot (dicki) of the car. On counting 1687 currency notes of the denomination of Rs. 2000/- and 189 currency notes of Rs.500/- denomination total, valued at Rs. 34,68,500/- were recovered. During the course of counting, almost all the notes were found to be belonging to one series and suspecting the same to be fake currency notes, the car driver was apprehended with the help of the associates and upon interrogation he disclosed his name as Harsh Yadav son of Rajesh Yadav (co-accused/non- applicant). It was stated in the FIR that while apprehending the said accused, a second boy sitting along with him in the car managed to flee away. Upon the car being checked again a red colour bag containing three cartridges, two cheque books of Indusind Bank, six white papers out of which five papers bore coloured photostat of Rs. 2000/- note and the other paper was having black and white photo of Rs.500/- note. Upon information being sent to the Police, the case was registered and the property was seized.
2.2 That the co-accused Harsh Yadav was taken in custody and his disclosure was recorded on 04.10.2019. The said disclosure was retracted and a second disclosure was recorded on 08.10.2019. The accused/non-applicant Harsh Yadav also retracted from the said second disclosure statement and a third disclosure statement was recorded on 10.10.2019. The relevant extract of the said third disclosure statement is reproduced as under:-
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"xxxxxxxx. On 02.10.2019, in the evening I went to Nikhil in Sector 15. At that time, colour printer/scanner was lying on the back seat of Honda City car. Thereafter, we ate pizza at Dominos, Sector 15. I dropped Nikhil at his shop and then went to Sohana at the centre in my Honda City Car No.HR26-6642 for bringing back my mother. Mummy asked Tek Chand to bring out the printer from the car. Xxxxxx. Then I took the keys of the car and I came back from there. On
03.10.2019, I went to the house of Nikhil to meet him. Nikhil sat in my Honda City Car outside his house in Sector 15. That we talked for some time. Then I told him that I am going back home. At this Nikhil asked me to drop him near Civil Lines Zone Hall. After this, both of us sat in the car of Harshand set out. Checking was going on near Civil Lines Church. My car was intercepted and lot of fake currency notes were recovered from the boot space of my Honda City HR 26DA-6652. From inside the car, three printer cartridges were also recovered kept in a bag. That I and Nikhil were only sitting in the said car. Nikhil was not having any information as to when and where, fake currency notes which were recovered from my car were printed. However, now I can recollect that my driver Tek Chand had taken my car all alone to Sohana on 02.10.2019. 1 am fully sure that Tek Chand had placed said fake currency notes in my car. He had also talked with me about printing of fake currency notes on one occasion. Only Tek Chand son of Bir Chand resident of Rehrana, Palwal can tell about it in detail as to where these notes were printed."
2.3 On the basis of the aforesaid disclosure, Tek Chand, driver of the accused/non-applicant Harsh Yadav was arrested on 10.10.2019 and his disclosure was recorded by the Police which suggested and supported that the driver namely Tek Chand was involved in the printing of the counterfeit currency. The scanner as 3 of 23 ::: Downloaded on - 25-07-2022 01:15:28 ::: CRR-299-2022 (O&M) -4 -
well as the printer allegedly used in the printing of the fake currency notes were taken in possession by the investigating agency from accused Tek Chand on 10.10.2019 itself along with other material. That another disclosure of accused Tek Chand was recorded by the Police on 14.11.2019, whereupon a further recovery of counterfeit currency was also effected. 2.4 The investigation in the matter was conducted and was verified by the Assistant Commissioner of Police. A final report under Section 173 CrPC was filed before the Illaqa Magistrate wherein the petitioner was found to be innocent. Certain relevant aspects of the final report are being extracted hereinbelow:-
"xxxxxx.
On 09.10.2019, Hari Chand presented his son Nikhil before Crime Branch, Sector 17, on 09.10.2019. Nikhil was interrogated about the facts of this case but when no evidence warranting his arrest were found, he was let off while issuing him warning.
xxxxxx.
Verification about the role of accused Nikhil in this case was conducted by Sh. Pritpal Singh, ACP Crime 1 GGM on 06.01.2020 and on not finding any direct or indirect evidence in the case, he was found innocent and accordingly placed in column No.2."
2.5 After the filing of the final report, charge was framed against accused Harsh Yadav and Tek Chand. Prosecution evidence commenced and the complainant Rishi Kumar, Assistant Registrar Co-operative society Gurugram stepped into the witness-box as PW-1. The relevant extract of the deposition of Rishi Kumar PW-1 is reproduced hereinbelow:-
"xxxxx. When we were apprehending the said Harsh Yadav 4 of 23 ::: Downloaded on - 25-07-2022 01:15:28 ::: CRR-299-2022 (O&M) -5 -
other persons were also sitting in the vehicle run away from the spot.
xxxxxx.
The whole proceedings were recorded by the cameraman Mohit Sharma who was accompanying us at that time and the copy of the CD was supplied to the police lateron by the cameraman and he supplied two CDs to me also which I brought in the Court today.
xxxxxxx.
Both the CDs are run in the Court in which accused HarshYadav along with the currency notes is visible and other person who is in blue t-shirt was accompanying him who run out from the spot and proceedings in the police station are also recorded."
2.6 The CD Ex. MO/1 was played in Court and statement of accused Harsh Yadav was recorded on 24.11.2021, wherein he said that the person visible in the CD and accompanying on the date of the incident was the petitioner herein. Accordingly, an application under Section 319 CrPC was moved by the Public Prosecutor on 24.11.2021. The relevant paragraph of the said application are reproduced hereinbelow.
2. That Rishi Kumar, Assistant Registrar (Duty Magistrate/complainant) had been examined on oath as PW.1 and during his examination he deposed that on 03.10.2019, he alongwith his team including Mohit Sharma, Cameraman were present while checking the vehicles and the same Mohit Sharma was recording the proceedings as directed by the Election Commission and the similar facts are being incorporated in his complaint, which is Ex.P1. The said Mohit Sharma had also handed over the CDs of the recording to investigating officer as well as to PW.1 Rishi Kumar. During 5 of 23 ::: Downloaded on - 25-07-2022 01:15:28 ::: CRR-299-2022 (O&M) -6 -
his examination, he produced the CDs in the Court and the CDs were run.
3. That PW.1 Rishi Kumar further deposed before the Court that one more accused who was accompanying the main accused Harsh Yadav run away from the spot and he was clearly visible in the CD Ex.MO/1 which was run in the Court and his identity had been disclosed by Harsh Yadav before the Ld. Court, however, accused Nikhil Dudija had been declared innocent by the investigating agency during the course of investigation and had been kept in column no.2.
4. That the said accused Nikhil Dudija is very much available in the vehicle at the time of recovery of forged currency notes and he had been shown that the other accused ran away from the spot in complaint Ex.P1 which is further corroborated by PW.1 on his examination and the CD run in the Court as well as disclosed by accused Harsh Yadav before the Court. 2.7 The aforesaid application moved by the prosecution was allowed by the Additional Sessions Judge, Gurugram vide order dated 03.02.2022.
3. Notice in the petition was issued whereupon response has been filed by the respondent-State by means of an affidavit of Rajender Singh, HPS, Assistant Commissioner of Police, City Gurugram. The prosecution did not dispute the facts noticed above and as narrated in the petition and rather specifically stated that the chronological facts are not in disputed being a matter of record.
Arguments of the petitioner.
4. Learned counsel for the petitioner has contended that the petitioner has been summoned in complete disregard to the law laid down by the Hon'ble 6 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -7 -
Supreme Court in its Constitutional Bench judgement in the case of Hardeep Singh V/s State of Punjab and others (2014) 3 SCC 92 and the order passed by the trial Court fails to reflect on existence or availability of any material that would reflect upon the participation of the petitioner in the commission of the offence. He contends that it is the specific and undisputed case of the petitioner that accused Harsh Yadav was known to him and that the car Honda City driven by Harsh Yadav is in the name of mother of Harsh Yadav and that the said accused had come to meet him on the date of the incident. As the petitioner was to go out for his personal work, accused Harsh Yadav proposed to drop him on the way and as a result, he accompanied Harsh Yadav. He was not aware of any of the material being carried by Harsh Yadav in his car. He further submitted that the allegations levelled by the complainant in the FIR as well as deposition of PW-1 before the trial Court are to the effect that the other boy, who accompanied accused Harsh Yadav escaped from the place of incident. The said assertion is false inasmuch as the petitioner has duly associated himself with the enquiry conducted by the police officials at the spot and even his father had came to the place of the occurrence and that after questioning/interrogating the petitioner, he was let off by the police officials at the spot after noting down his particulars. Even thereafter he was called twice to the Police Station for interrogation and that the petitioner had appeared before the investigating agency, which is also corroborated from the final report, the extract whereof already stands reproduced in paragraph 2.4 above. He further submits that the investigating agency satisfied itself as regards absence of any material to link the petitioner with the commission of the offence and it was for the said reason that the petitioner has been found innocent by the investigating agency. It is further argued by the learned counsel for the petitioner that even 7 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -8 -
though the main accused Harsh Yadav has not been charged for commission of offence under Section 201 IPC, however, the Additional Sessions Judge, Gurugram has summoned the petitioner for commission of offence under Section 201 IPC also, solely on the testimony of PW-1, by averring that the petitioner who accompanied Harsh Yadav had made good his escape and has been identified by Harsh Yadav as petitioner.
5. Another argument was also raised that as per the testimony of PW-1 Rishi Kumar, the CD was handed over by the cameraman Mohit Sharma, however the said Mohit Sharma has not been cited as a witness by the prosecution in its final report, even though it has referred as many as 21 witnesses. It is contended that even otherwise the petitioner has nowhere disputed that he was not accompanying Harsh Yadav on the date of the incident and as such the CD does not make out any offence against the petitioner and is not in the nature of evidence that links the petitioner to the commission of the offence. The only significance of the CD is to the extent that the petitioner was accompanying accused Harsh Yadav on the date of the incident. Reference was also made to certain precedents to support the arguments, the same are however not being referred to at this take stage and shall be dealt with in the later part of the judgement. Submissions by the respondent-State
6. Per contra, learned State counsel has contended that detailed, reasoned and speaking order has been passed by the trial Court and that there is no infirmity in the order of summoning. On a pointed query with respect to availability of any evidence connecting the petitioner to the commission of the offence, learned State counsel has fairly submitted that no material linking the petitioner with the commission of offence was recovered during the course of 8 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -9 -
investigation by the investigating agency and that the case of the prosecution is based solely on the fact that the petitioner was the accompanying the co-accused in the same car on the date of the incident.
7. I have heard learned counsel appearing on behalf of the respective parties and have gone through the record as well as the precedent judgements of the Hon'ble Supreme Court on the captioned subject. Discussion:
8. Before delving further into the matter, it shall be essential to refer to the statutory provisions and the ingredients of the offence for which the petitioner is being sought to be summoned. The specific provision of the Indian Penal Code, 1860 are reproduced as under:-
489A. Counterfeiting currency-notes or bank-notes.-- Whoever counter-feits, or knowingly performs any part of the process of counterfeiting, any currency-note or bank-note, shall be punished with 2[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 489C. Possession of forged or counterfeit currency-notes or bank-notes.--Whoever has in his possession any forged or counter-feit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
489D. Making or possessing instruments or materials for forging or counterfeiting currency-notes or bank-notes.-- Whoever makes, or performs, any part of the process of making, or buys or sells or disposes of, or has in his possession, any machinery, instrument or material for the
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purpose of being used, or knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any currency-note or bank-note, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
201. Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
9. Counterfeit has been defined under Section 28 IPC and reads thus:-
28. "Counterfeit".--A person is said to "counterfeit" who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be
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likely that deception will thereby be practised.
A perusal of the aforesaid provisions shows that in order to attract the provisions of Section 489-A IPC, the person sought to be charged must have counterfeit or participated in any part of the process of counterfeiting i.e. carrying out an act to practice deception. For the purposes of attracting Section 489-C IPC, the twin ingredients are that an accused has to be in possession of forged or counterfeit currency notes and intending to use the same as genuine or has reason to believe it may be used as genuine. Further, for attracting Section 489-D IPC, the person sought to be prosecuted must be involved in making of or perform any part in the process of making, or sells or disposes of, or has in his possession any machinery, instrument or material for the purposes of being used or believing that it is intended to be used for counterfeiting currency notes. Insofar as, Section 201 IPC is concerned, the same relates to causing disappearance of evidence of an offence. Hence, existence of evidence to prima facie establish involvement of an accused in either making of counterfeit currency or being involved in the process or making of counterfeit currency or being in conscious possession of counterfeit currency with an intention of using the same must exist.
10. Undisputedly, the entire evidence that has been collected by the investigating agency or relied upon by the prosecution and referred to by the Additional Sessions Judge, Gurugram is in the form of the testimony of PW-1- Rishi Kumar as per which there was another boy accompanying accused Harsh Yadav at the time when the vehicle in question was intercepted and the search was conducted. The said aspect pertaining to the second boy (petitioner-herein) having escaped is however not supported by any evidence collected during investigation and even as per the final report, the petitioner had been interrogated and 11 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -12 -
questioned by the investigating agency and he was not found involved in the process of counterfeiting the currency or being in possession of any material or equipment to be deployed in the process of counterfeiting of currency and/or having the knowledge thereof or being in possession of any counterfeit currency with the intent of using the same. The evidence, at best, which is being referred to against the petitioner is that he was sitting with the co-accused on the date when the co-accused was apprehended.
11. In the aforesaid undisputed factual background, it would be apposite to refer to the guidelines to be kept in mind and parameters prescribed by the Hon'ble Supreme Court in various precedent judgments to summon an additional accused under Section 319 CrPC need to be deliberated upon. The said section deals with the power of the Court to proceed against any person not being an accused. The relevant provision of the Code of Criminal Procedure is reproduced hereinafter:-
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.
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(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, 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.
12. A bare perusal of the statutory provision shows that it should appear from the evidence that a 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. Thus, existence of a prima facie case on the basis of the evidence is a pre-requisite before any person is sought to be summoned to be tried with other accused for commission of an offence.
13. The evidence in question as contemplated in the statutory provision should invariably be indicative of participation of such person towards commission of the offence for which he is being summoned. The presence of a person at a place of incident or presence of a person with an accused ipso facto is not evidence of such person having committed the offence for which he is being summoned to be tried. It is essential for the Court to make a reference to the evidence which associates or creates a link of a person sought to be summoned as an additional accused to the offence and not to the person accused of having committed a crime. The aforesaid fine distinction has to be kept in mind by the investigating agency as well as the Court of law. The case against the petitioner is based solely on the evidence of the petitioner being present along with the accused and the evidence as well as the order of the trial Court does not refer 13 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -14 -
to the evidence linking the petitioner to the commission of the offences for which he is being sought to be summoned. Accompanying an accused, in the absence of any link or participation in the commission of the offence cannot be an offence unto itself. The counterfeit currency was recovered from the car owned by co- accused Harsh Yadav and that the petitioner only happened to take a lift from the said accused who was known to him. The oral evidence showing his presence does not establish or even remotely attach the petitioner to the commission of the offences for which he is being sought to be summoned.
14. Further, a perusal of the impugned order dated 03.02.2022 shows that reference has been made to three precedent judgments by the Additional Sessions Judge, Gurugram which pertain to the year 2009. One of the said judgment has been passed by Punjab and Haryana High Court titled Mann Singh and others vs. State of Punjab and another 2009 (2) RCR (Crl.) (P&H) 298 while the other two judgments have been passed by the Hon'ble Supreme Court in the matter of Ram Pal Singh vs. State of Uttar Pradesh and another 2009 (2) RCR (Criminal) (SC) 131 and Harbhajan Singh and another vs. State of Punjab and another 2009 (3) RCR (Criminal) (SC) 916 which are to the effect that Court can summon a person to face trial on the basis of the allegations made in the FIR even if such person has found to be innocent from the basis of those allegations. There is no dispute to the proposition of law laid down in the aforesaid precedent referred to by the counsel appearing on behalf of the petitioner. It must however always be kept in mind that the power to summon any person as an additional accused is not to be exercised mechanically. There must be existence of an evidence or allegations before the Court as would reflect participation of the person sought to be summoned as an additional accused in the commission of an offence. It is evident that the order of 14 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -15 -
summoning the petitioner as an additional accused is based solely on the statement of the complainant who has only reiterated what he has stated in the FIR but the same cannot be said to be making out any allegation for commission of offence and further the said fact has already been enquired into and there is nothing available either on record or upon conclusion of the impugned order that the conclusion of the investigating agency was misconceived or is bad on account of existence of some material or evidence to dispel or to rebut the conclusion so drawn by the investigating agency.
15. The Hon'ble Supreme Court had held in the matter of Hardeep Singh's case (supra) that constructive and purposive interpretation should be adopted so as to advance the object and cause of justice. The concept of fair trial envisages that a real culprit should not get away unpunished while referring to the maxim "judex damnatur cum nocens absolvitur" i.e. a judge is condemned when guilty is acquitted and held that the Court should give full effect to the words used in the provision. Evidence under Section 319 CrPC has to be broadly understood and not literally as evidence brought during trial. Thus, the material which has come before the Court in the course of inquiry can be used for (i) corroboration of evidence recorded by the Court after commencement of trial (ii) for exercise of power under Section 319 CrPC and (iii) also to add an accused whose name has not been charged. It was further held that the degree of satisfaction for invoking Section 319 CrPC should be more than a prima facie case as exercised at the time of framing of charge but sort of satisfaction to an extent that evidence, if not rebutted, may lead to a conviction of a person added as an accused. It was also observed by the Hon'ble Supreme Court that the power under Section 319 CrPC is discretionary and an extraordinary power. It is to be exercised sparingly and 15 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -16 -
only in those cases where the circumstances of the case so warrant. While dealing with the aspect as to what would constitute an evidence, the Hon'ble Supreme Court observed as under:
Question No.(iii) : Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
58. To answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under Section 319 Cr.P.C., the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. The circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that comes up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. The words as used in Section 319 Cr.P.C. indicate that the material has to be "where ....it appears from the evidence" before the court.
59. Before we answer this issue, let us examine the meaning of the word 'evidence'. According to Section 3 of the Evidence Act, 'evidence' means and includes:
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced
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for the inspection of the Court, such statements are called documentary evidence;
60. According to Tomlin's Law Dictionary, Evidence is "the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writing or records."
61. Bentham defines 'evidence' as "any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact- a persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact."
62. According to Wigmore on Evidence, evidence represents "any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked."
63. The provision and the above-mentioned definitions clearly suggest that it is an exhaustive definition. Wherever the words "means and include" are used, it is an indication of the fact that the definition 'is a hard and fast definition', and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expression. (Vide: M/s. Mahalakshmi Oil Mills v. State of A.P., AIR 1989 SC 335; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh & Ors., (1990) 3 SCC 682; P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., AIR 1995 SC 1395; Hamdard 17 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -18 -
(Wakf) Laboratories v. Dy. Labour Commissioner & Ors., AIR 2008 SC 968; and Ponds India Ltd. (merged with H.L. Limited) v. Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369).
64. In Feroze N. Dotivala v. P.M. Wadhwani & Ors., (2003) 1 SCC 433, dealing with a similar issue, this Court observed as under:
"Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the word as defined."
We, therefore proceed to examine the matter further on the premise that the definition of word "evidence" under the Evidence Act is exhaustive.
59. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., AIR 2011 SC 760, while dealing with the issue this Court held :
"18. The word "evidence" is used in common parlance in three different senses: (a) as equivalent to relevant,
(b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word "evidence" given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary 18 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -19 -
evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc."
16. The said principle was reiterated by the Hon'ble Supreme Court in the judgment of Sunil Kumar Gupta Vs State of Uttar Pradesh, (2019) 4 SCC 556 wherein it was held that a person cannot be added as an accused under Section 319 CrPC to face trial on the basis of vague and nonspecific allegations. Even though a prima facie case is to be established from the evidence led before the Court, not necessarily to be tested on the anvil of cross examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction. Unless a higher standard for forming an opinion to summon a person as an additional accused is not followed, the ingredients would not be satisfied.
17. It is also evident that the judgment of Harbhajan Singh (supra) referred to by the trial Court was also considered by the Constitutional Bench of the Hon'ble Supreme Court. There is no reason as to why the subsequent and larger Bench of the Hon'ble Supreme Court and the principles laid down thereunder were not applied by the Additional Sessions Judge, Gurugram in the process of examining the application under Section 319 CrPC.
18. The same now leads this Court to refer to the finding/observations recorded by the trial Court while exercising the jurisdiction under Section 319 CrPC. The relevant extract of the order is reproduced hereinafter below:
6. After recording statement of the complainant, Ld. Public
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prosecutor has moved an application under section 319 Cr.P.C for summoning additional accused as mentioned in the application while maintaining that there were specific allegations against the proposed accused as he has also participated in the commission of offence and the same version has been reiterated by PW1 and there was no concrete evidence to give clean chit to him and he should be summoned to face trial for commission of the offences along with the accused facing trial.
7. Sh. Preet Pal Singh ACP Crime-I Gurugram had given clean chit to proposed accused as he was found innocent without any justified reason and the said ACP Preet Pal has extended unjustified benefit to the accused in illegal and arbitrary manner. Complainant in his complaint had attributed specific role to the proposed accused regarding his presence in the vehicle from which fake currency notes were recovered and he had stated so also on oath while appearing as PW1.
8. The Investigating Agency has the responsibility and duty to discharge its functions effectively and efficiently to ensure that the prosecution is carried on effectively and the perpetrators of crime are punished by the competent Court of law and it appears that sacrosanct and pious duty has not been discharged by the Investigating Agency in this case. In fact, even prosecution has not acted upon the report of the then ACP Preet Pal, in giving clean chit to the proposed accused. It is also incomprehensible as to what magic wand fell from the sky which landed in the hands of Investigating Agency, the application of which, to the proposed accused revealed that he was not the offender.
9. It would not be out of place to maintain that in the present case Rishi Kumar is the complainant and testimony of this witness is fully supported the prosecution version. Even accused Harsh Yadav already facing trial has made a 20 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -21 -
statement in the court on 24.11.2021 wherein he had admitted that on the date of incident Nikhil Dudeja was accompanying him who is visible in the CD brought by Rishi Kumar complainant and so much so he has not raised any accusing finger towards the genuineness of CD and Pendrive
10. In the case of 'Mann Singh and others versus State of Punjab and another', 2009 (2) RCR (Criminal) (P&H) 298, it was held that if some persons are named in F.I.R. as accused but Police found them innocent and challan was not put against them and complainant repeated same allegations in his evidence before Court as in F.I.R. and no new evidence was brought on record by complainant, Court can summon the persons to face trial on the basis of allegations made in F.I.R. though on those allegations police had found them innocent. In the case of 'Ram Pal Singh and others versus State of Uttar Pradesh and another', 2009 (2) RCR (Criminal) (SC) 131, it was held that if accused were named in F.I.R. along with others but no challan was put up against them and complainant in his testimony before Court named the said persons being involved in causing death of deceased, there was no error in the order of High Court summoning said persons as accused on the basis of evidence of complainant.
In the case of 'Harbhajan Singh and another versus State of Punjab and another', 2009 (3) RCR (Criminal) (SC) 916, it was held that if police had submitted charge sheet only against one accused and from evidence adduced before Court it appeared to the Court that some other persons had also committed the offence, in such a case Court has power under section 319 of the Code of Criminal Procedure, 1973 to ad other persons as accused.
11. In the given facts and circumstances of the case, this Court does not find anything substantive in giving clean chit to the proposed accused or disbelieving the version of PW1 21 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -22 -
complainant/Duty Magistrate. Therefore, this Court finds it a fit case for summoning the accused sought to be summoned in order to face the trial. Accordingly, accused Nikhil Dudija is ordered to be summoned to face the trial for the commission of offences punishable under sections 489-A/ 489-C/ 489-D/201 IPC and he be summoned through bailable warrants of arrest in the sum of Rs. 5000/- with one surety in the like amount and service of bailable warrants be got effected through DCP(HQ) Gurugram.
19. A perusal of the above shows that the Court has proceeded on a presumption rather than making a reference to the evidence that is available on record to connect the petitioner to the commission of the offence. The language of Section 319 CrPC talks about complicity of a person sought to be summoned as an accused in the commission of the 'offence' and not about the person being known or accompanying an accused. The distinction is fine but real. The trial Court has failed to refer to any material or evidence or even allegation as would suggest complicity of the petitioner herein in the commission of the offences for which he is being sought to be summoned. It is evidently a case where the Court has misread the statutory provision as well as the nature of evidence required to be referred to before any person has to be summoned as an additional accused. An accused cannot be presumed to be sharing any common intention or to be in conspiracy with the co-accused Harsh Yadav and existence of the same has to be reflected from the evidence available on record or the un-controverted allegations. Conclusion:
20. In light of the discussion as above and considering the necessary ingredients prescribed for commission of offences under Section 489A, 489C 489D and 201 IPC, I am of the opinion that the impugned order dated 03.02.2022 22 of 23 ::: Downloaded on - 25-07-2022 01:15:29 ::: CRR-299-2022 (O&M) -23 -
passed by Additional Sessions Judge, Gurugram under Section 319 CrPC summoning the petitioner as an additional accused is liable to be set aside.
The present petition is accordingly allowed.
(VINOD S. BHARDWAJ)
JUDGE
July 04, 2022
S.Sharma(syr)
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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