Uttarakhand High Court
Dalvinder Singh vs State Of Uttarakhand And Others on 5 December, 2019
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision (CRLR No. 246 of 2019)
Dalvinder Singh ...Revisionist
Vs.
State of Uttarakhand and Others ...Respondents
Present: Mr. Arvind Vashisth, Senior Advocate assisted by Mr. Mohd. Umar,
Advocate for the revisionist.
Mr. P.S. Bohra, AGA for the State
Mr. Shashi Kant Shandilya, Advocate for the private respondents
With
Criminal Revision (CRLR No. 196 of 2019)
Sukhvinder Singh @ Laddoo ...Revisionist
Vs.
State of Uttarakhand and Another ...Respondents
Present: Mr. Gaurav Singh, Advocate for the revisionist.
Mr. P.S. Bohra, AGA for the State
Mr. Arvind Vashisth, Senior Advocate assisted by Mr. Mohd. Umar,
Advocate for the private respondent
Hon'ble Sharad Kumar Sharma, J.
These are the two connected revisions, wherein the challenge has been given by the revisionists to the order dated 5th April 2019, as passed by the 4th Additional Sessions Judge, Haridwar in Sessions Trial No. 81 of 2018, State v. Sarabjeet and others. By virtue of the impugned order in question, the learned Sessions Court has decided the application paper No. 37B, which has been preferred by the revisionist of CRLR No. 246 of 2019, Dalvinder Singh v. State of Uttarakhand and others, praying for a certain reliefs as mentioned in the application.
2. The challenge in Criminal Revision No. 246 of 2019, Dalvinder Singh v. State of Uttarakhand and others, its by the applicant to the application under Section 319 of Cr.PC, who has challenged the impugned order of only partially allowing the application under Section 319 of Cr.PC, the challenge in the Criminal Revision is limited to the effect of denying the summoning two of the 2 accused persons, whom the applicant/revisionist herein also wanted to be summoned for facing the trial of Sessions Trial No. 81 of 2018.
3. In the connected Revision being Criminal Revision No. 196 of 2019, Sukhvinder Singh @ Laddoo and others v. State of Uttarakhand and another, has been filed by those persons, who have been summoned by partially allowing the application under Section 319 of Cr.PC, on the ground that the impugned order dated 04.04.2019, of summoning the revisionists suffers from the vices, because the impugned order does not discloses as to for what offences they have been summoned, coupled with the fact that the offences which has been made mentioned in the application under Section 319 of Cr.PC, they are the offences, apart from the offences for which the chargesheet No. 39/2016 dated 02.03.2016, which has been submitted for offences under Sections 147, 504, 506 IPC and the cognizance has been taken only for it, for which the trial was pending.
4. To better elucidate of the facts it is necessary to refer, that on registration of the FIR dated 3rd September 2015, by way of Case Crime No. 328 of 2016, it was for commission of offences under Sections 147, 148, 149, 452, 354, 307, 504 and 506 of IPC, which was registered at P.S. Kotwali, Laksar District Haridwar. The investigation was conducted, and as a consequence of culmination of investigation thereto, a chargesheet was submitted, being Charge Sheet No. 39 of 2016, as against the accused persons named therein, the chargesheet thus submitted was only for the commission of offences under Sections 147, 504 and 506 of IPC only. It is based upon the said submission of the chargesheet that the cognizance was taken by the learned trial Court and Sessions Trial No. 87 of 2018 was initiated for trying the offences under Sections 147, 504 and 506 of IPC.
5. During the pendency of the trial, the revisionist of Revision No. 246 of 2019, Dalvinder Singh v. State of Uttarakhand and 3 others had filed the application being paper No. 37B on 15th March 2019, praying for the following reliefs:-
**vr% Jheku th ls izkFkZuk gS fd vfHk;qDrx.k lq[kfoUnz flag mQZ yMMw fuoklh "kqxj fey yDlj] "ksj flag iq= lq[kchj flag] dkyk flag iq= bdcky] eksgu flag iq= lqjtu flag] uktj flag iq= fu"kkcj flag] leLr fuoklhx.k ,sFky Fkkuk iFkjh ftyk gfj}kj dks va0 /kkjk 147] 148] 149] 452] 354] 307] 504] 506 Hkk0n0la0 esa rych ds iz;kZIr lk{; gSa] mudks ryc dj fopkj.k fd;k tk;sA d`ik gksxhA**
6. The consideration of this application paper No. 37B could be splitted for convince into two segments:-
(i) the accused sought to be summoned i.e. Sukhvinder Singh @ Laddoo; Sher Singh, son of Shukhbir Singh; Kala Singh son of Iqbal;
Mohan Singh son of Surjan Singh; Nazar Singh son of Nishabar Singh; all resident of Eithal Buzung, Thana Pathri District Haridwar.
(ii) the offences for which the aforesaid accused were required to be summoned were for offences under Sections 147, 148, 149, 452, 354, 307, 504 and 506 IPC.
7. When the said application came up for consideration before the trial Court, the trial court by the order impugned dated 5th April 2019, had partly allowed the application of Davinder Singh under Section 319 of Cr.PC. As a consequence of the partial allowing of the application, the accused named in the application under Section 319 of Cr.PC viz Sukhvinder Singh @ Laddoo; Mohan Singh son of Surjan Singh; Nazar Singh son of Nishabar Singh; all residents of Eithal, Police Station Pathri, District Haridwar were summoned excluding two of the accused persons named in the application under Section 319 of CrPC i.e. Sher Singh son of Shukbir Singh and Kala Singh son of Iqbal.
8 The revisionist of Revision No. 246 of 2019 contends that the two accused persons, who have been left out to be summoned, in fact, ought to have also been included by the impugned order dated 5th April 2019, because in view of the evidence and the set of allegations narrated in the FIR as well as in the application under Section 319 of 4 Cr.PC; they too could be prima facie said to be involved in the commission of offence complaint of by registration of the FIR being FIR No. 528 of 2015, of which the cognizance was taken by the learned trial Court by way of Sessions Trial No. 81 of 2018.
9. This Court upon hearing the counsel for the two revisions is of the view that if the impugned order is scrutinized from the viewpoint which is being argued by the learned counsel for the revisionist of Revision No. 196 of 2019, is that the summoning order by invoking the provisions contained under Section 319 of CrPC, it ought to have disclosed, as to the persons who had been sought to be summoned to be tried for an offence, as to under which and for which offences he has been sought to be summoned to be tried. He further argued, though refuted by the learned AGA, as well as by the learned counsel for the applicant to the application under Section 319 of Cr.PC, that the application under Section 319 CrPC, could not be attracted to summon the probable accused person in relation to those offences for which the cognizance has not been taken by the trial court, for conducting the trial and hence he submits that the application under Section 319 CrPC when it is being considered its scope of summoning of accused cannot be widened by introducing those Sections for which the trial was not pending or for which the cognizance was not taken.
10. In response to it, the learned counsel for the applicant to the application under Section 319 of Cr.PC has made reference to the provisions contained under Section 319 of the Code of Criminal Procedure itself, which 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, 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.5
(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 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."
11. The counsel for the revisionist of Criminal Revisional No. 246 of 2019, wants to submit that if the language of Section 319 of CrPC is taken into consideration, it grants the liberty to the trial Court to summon "any person", for "any offence", for which a person could be tried. This Court is of the view that the scope of use of word "any person", in relation to "any offence", as used under Section 319 Cr.PC, if that is to be given a rational interpretation, the use of words "any person" would herein mean that a person, who on the basis of averments or the allegations levelled in the FIR, or who on the basis of the conduct of the investigation and evidence is prima facie found to be indulged in or remotedly indulged in commission of the offences, as narrated in the FIR, who could be summoned, while exercising the powers under Section 319 of Cr.PC. I am of the view that the scope of Section 319 of Cr.PC could not be enlarged, in such a manner to summon a person even in relation to those offences for which even the cognizance was not taken nor the charge sheet has been submitted in relation to it by the investigating officer. If that is permitted to summon a person even for the offences for which cognizance has not been taken, may lead to a situation where Section 319 CrPC, could be applied negatively than to its object, and even for the offences for which no investigation was conducted.
12. The learned counsel for the applicant to the application under Section 319 of Cr.PC had further submitted that and his argument is also supported, accepted and pressed by the learned AGA 6 is that if the order impugned which is under challenge is taken into consideration, the relevant part of which is quoted hereunder :-
**vr% mijksDr fof/kd izko/kku o fof/k O;oLFkk ds izdk"k esa rFkk lk{kh ih-MCY;w 1 o ih-MCY;w 2 ds nkSjku fopkj.k U;k;ky; esa fn;s x;s c;ku o rgjhj dks n`f'Vxr j[krs gq;s U;k;ky; ds fopkj esa izLrkfor vfHk;qDrx.k lq[kfoUnj flag mQZ yMMw] eksgu flag iq= lwjtu flag] uktjflag iq= fulkoj flag] leLr fuoklhx.k ,sFky Fkkuk iFkjh] ftyk gfj}kj dks vfHk;qDrx.k ds lkFk l= ijh{k.k la[;k 81@18 ljdkj cuke ljcthr vkfn ds vUrxZr /kkjk 319 n0iz0la0 esa ryc fd;s tkus dk etcwr izFke n`'V;k ekeyk gSA vr% izkFkhZ dk izkFkZuk i= vUrxZr /kkjk 319 na0iz0la0 vkaf"kd :i ls Lohdkj fd;s tkus ;ksX; gSA vkns"k izkFkhZ oknh dk izkFkZuk i= 37ch vUrxZr /kkjk 319 n-a0iz-la0 vka"kd :i ls Lohdkj fd;k tkrk gSA vfHk;qDrx.k lq[kfoUnj flag mQZ yMMw] eksgu flag iq= lwjtu flag] uktjflag iq= fulkoj flag] leLr fuoklhx.k ,sFky Fkkuk iFkjh] ftyk gfj}kj dks vfHk;qDrx.k ds lkFk l= ijh{k.k la[;k 81@18 ljdkj cuke ljcthr vkfn ds vUrZxr /kkjk 319 n- 0iz0la0 esa fnukad 19-04-2019 ds fy, ctfj;s lEeu ryc fd;s tkrs gSaA**
13. They submit that the operative portion of the order once it makes reference to application paper No. 37B, and the summoning has been done in relation to the Sessions Trial No. 81 of 2018, State v. Sarabjit Singh, the presumption which has to be logically drawn and has been sought to be drawn too is that as soon as the reference of an application under Section 319 of CrPC is made in operative portion of impugned order, it would be deemed and presumed that summoning has been made in relation to all the offences which has been mentioned in the application under Section 319 CrPC itself. This argument of the learned counsel for the applicant to the application under Section 319 CrPC, and the learned AGA for the State is not accepted by this Court for the reason being that if a composite reading of the impugned order is taken into consideration, the preceding paragraph of the impugned order, refers that the summoning of the accused persons as sought to by the application under Section 319 of Cr.PC was in relation to the Sessions Trial No. 81 of 2018, State v. Sarabjit Singh, i.e. for the offences under Sections 147, 504 & 506 only, and as such, I am of the view that such summoning order if at all it could be read, it could be only for summoning the accused persons thus named in the operative 7 order, it would be confined to the offences for which the cognizance has already been taken by the trial Court, and for which the trial is pending consideration and no other offence, which didn't even proved to be established, by the investigating officer in the chargesheet.
14. The logic and rationale behind it is that before a trial Court takes the cognizance of an offence, there has had to be a prior exercise undertaken by the Investigating Officer to derive an inference based on evidence and available material in relation to the accused persons in relation to offence complained of as to whether there indulgment in commission of an offence as complained of against them, is at all made out, admittedly, as far as the present chargesheet No. 39 of 2016, is concerned, the accused persons who have been tried to be summoned by invoking the provisions contained under Section 319 Cr.PC are not the persons against whom the charge sheet has been submitted by the Investigating Officer. Secondly, if the chargesheet itself is taken into consideration, the persons against whom the charges have been framed they had been charged not in relation to those offences which constituted to be the offences and for which the investigation was conducted as referred in the FIR, or that mentioned in Section 319 CrPC applications, hence it would be deemed that the application under Section 319 of CrPC was in relation to those accused persons who were sought to summoned for offences for which the cognizance was already taken it cannot be for the offences which were much beyond the offences for which the cognizance was taken.
15. There is another reason why the impugned order as per the opinion of this Court cannot be sustained is that the trial Court ought to have rationally applied its mind and should have recorded a finding that while exercising its powers under Section 319 CrPC, particularly, when Section 319 CrPC itself uses the word "any offence", then at least it required a reference as to the probable accused person who have been sought to be summoned, they ought to have to be made aware at the 8 time of considering the application under Section 319 CrPC as to for which offences they have been summoned to be tried amongst those offences for which the application has been filed.
16. In the absence of there being any such specification or finding or reasoning given in the impugned order in question, coupled with the fact that in accordance with the opinion of this Court since there happens to be in contradiction in the reasoning and the ultimate order passed by the Court, coupled with the fact that no logic has been assigned by the Sessions Court for excluding the persons from summoning persons viz-a-viz to those who have been summoned, who were sought to be summoned by invoking the provisions contained under Section 319 of Cr.PC, this Court is of the view that the impugned order deserves to be quashed. The same is accordingly quashed. The matter is remitted back to the Sessions Court to reconsider the application under Section 319 of Cr.PC and pass fresh and appropriate order in accordance with law.
17. Subject to above observation, the Criminal Revisions are allowed. The matter is remitted back to the Sessions Court to reconsider the application under Section 319 CrPC, afresh.
(Sharad Kumar Sharma, J.) 05.12.2019 Mahinder/